Collegiate Times

Let's stop pretending to be a Constitutional scholar for a hot second and actually delve into what the document actually says. "Congress shall make no law establishing religion, nor preventing the free exercise thereof." First things first, the authors make quite clear that the stipulation is on on the Federal Congress (if it had meant state legislatures as well, it would have explicitly said so - else, there would be no need for Amendment X). Secondly, the text implies that the Federal Congress is not permitted to establish a state religion (read: national religion, a la the Church of England) - NOT, as the author implies, a prohibition on promoting 'establishments of religions - ' by which I presume the author means 'rules a religion made up and follows.' Lastly, it's a century of poor jurisprudence which extended the fallacious 'separation of church and state' to the several state governments - go back and read Amendments IX and X, and then try to explain why state governments are still in existence if they have to play slave to their federal masters.

I think you'll find that many people really feel that at issue here is really the definition of the word 'marriage' rather than the religious and, separately, legal institution it is in our society. I could wake up tomorrow and call my spoon a fork if I really want to - but calling it something it isn't doesn't make it what I want it to be. Personally, I don't really understand why the government should have ANY role in contracts between parties - if I want to insure my best friend, why shouldn't I be able to do so? But the fact of the matter is, governments like to be in control of your stuff so they find ways to do so. There are many who support the notion of 'civil unions - ' that is, you get the rights and privlages of 'traditional marriage' without having the term 'marriage' applied - and to be honest, I've never really understood why that sort of compromise is wholly unacceptable to the gay movement (I'd use the PC term, but the comment system would reject it) - except for the possible conclusion that the movement isn't really interested in marriage so much as it is interested in demanding acceptance of normality of their lifestyle from a public unwilling to accept it as wholly normal and natural.

Kyle, since you like the Constitution so much, consider Amendment XIV (14), specifically the equal protection clause. The problem is that the government recognizes the marriage of some citizens and not others. I think we should make it simpler and have everyone go city hall to get a civil union and sign the legal documents. Then they can go to a religious place, if they wish, to have a marriage ceremony. If a particular church refuses to religiously marry a gay couple, then more power to them. Also, the government needs to have some role in contracts between parties for this issue. The courts need to consider divorce, inheritance, custody, hospitalization issues etc., and the IRS needs to consider the tax filing issue. The gay movement isn't asking for acceptance, just equality under the law.

Actually Eric people do that now, every couple has to receive a marriage license before they are considered married. The problem the gay movement can not seem to understand is that a majority of the public does not support gay marriage. This nations democracy is based on the belief that public opinion determines public policy. We don't want to make an exception for your specific form of sexual deviancy and I applaud the 46 states that have the courage to represent their constituents rather than caving to the demands of a vocal few.

Xenu, my idea is that no one gets 'married' by the state, instead, everyone gets a 'civil union' at city hall and keeps the marriage ceremony separate from government. Also, history (and the courts) have shown that democracy cannot overrule civil rights. By the way, Vermont has allowed gay marriage based on a vote by the legislature.

Actually these state elections have shown that democracy can over rule "civil rights" as you referred to it. I was aware of the Vermont decision, that's why I said 46 instead of 47 states. Still Vermont caved to a vocal minority rather than dong their job and representing the public. That aside, my larger point is just because gays are a well organized group of deviants does not mean marriage needs to be changed.

I think this article is taking the wrong approach. If you want to discuss the legal ramifications of marriage and what the Constitution has to say about it then it should actually address the government's view of marriage not the churches. The Founders never intended for their 'separation of church and state' clause to mean what it does today. The government attaches said 'social privileges' to marriage because in general it promotes a healthier society. Now this can be debated obviously, but it is the same reason parents get tax deductions when they have kids. The government is recognizing their contribution to the society (a child/a citizen); the kid may not actually contribute at all just like how some marriages do not promote a healthier society. Not all couples become responsible citizens once they get married however society on a whole views that most couples do; hence why we generally receive insurance reductions from insurance companies. To Eric: the reason the government recognizes the marriage of some couples vs. others is because some couples have the ability to reproduce (female + male); it is family that the government chooses to promote, not couples.

Eric, you're going to need to be more specific about why the federal government ought to care about private contracts between private citizens in the first place. Remember, direct taxation of citizens by the federal government was EXPLICITLY prohibited by the Constitution until Wilson got his amendment passed just prior to World War I - under the premise that granting the power to directly tax the citizenry gave the federal government far too much control over the lives of the citizens. The federal government was, in fact, designed to have VERY little to do with the day to day lives of Americans - the federal government was set up to manage affairs between state governments and internationally.

Bradford, if you want elaboration of the Founders views of religion and government, look no further than the Treaty of Tripoli and the Virginia Statute for Religious Freedom. We are not a Christian country and no one should suffer because of religious beliefs. TJ's own words were "a wall of separation between church and state." And if you really think state sponsored marriage is about reproduction, then I assume you believe sterile people should not be allowed to get married. Kyle, the government runs the court system and the courts need guidelines on how to enforce and interpret contracts (or lack thereof). For instance, if a gay millionaire dies unexpectedly and without a will, should his inheritance go to his partner of 20 years or to his siblings?

I am the author of this article. I neglected to focus on the 14th amendment which renders every 'anti-gay' marriage remark invalid from a legal stand point. In any case, I want to say, if you are a true American then you believe in freedom and justice over all things. That is the point here. To suggest we should keep doing something because it has always been done that way is among the silliest arguments one could make here. They were saying that when the abolitionists came.

By the way Bradford...to suggest that families are comprised of strictly heterosexual, married couples, with blood related children throws out completely families with single parents, adopted children, grandparents raising grand children, barren couples raising adopted kids...it is a sad day when we reduce families to such a rigid social category.

To John, re-read my post. I did not state that families are only comprised of strictly heterosexual married couples. I stated married heterosexual couples get the 'social privileges' because it encourages responsible families. Now i did not say anything about adoption, single parents, grandparents, etc because this discussion is about marriage. Those forms of family are also encouraged by the government. Eric: refer to treaties, state laws, or even letters all you want but i refer to the Constitution (which is more than just Tom's opinion); Congress shall make no laws 'respecting an establishment of religion or that prohibit the free exercise of religion'. The government is not declaring a state religion by protecting marriage. It is not granting some citizens more rights than others. It is not being unfair in it's 'equality'. A religious marriage is a right of the religion; a civil marriage is a privilege licensed by the government. The civil privilege goes back to my initial post; it promotes responsible citizens and families. "The doctrine of human equality is founded entirely in the Christian doctrine that we are all children of the same Father, all accountable to Him [John Adams]"

OK, Eric, and that's a point I support whole-heartedly. Now please explain to me why the concept of a civil union is anathema to that end, and why as a consequence of that we have to call a union of homosexuals 'marriage.' If the argument is purely definitional, then there has to be more to the discussion than the 'we don't get the same rights' mantra. If I give you the exact same rights, but I call it something else, are you really being denied equal protection?

Kyle: The answer to your question is a resounding yes. After the civil rights struggles of previous generations, we should all be well aware that "separate but equal" is a ludicrous concept.

But you're forgetting, Jayton, that the principle behind 'separate but equal' was an inherent desire to explicitly maintain the inequality which had become the status quo. Recall that the separation wasn't in nomenclature, but rather in practice - schools for black kids were still schools, water fountains for black people were still water fountains - the nomenclature didn't change, but the funding and the level of public concern for the quality of the facilities was notably different. The argument over nomenclature is far more nuanced because proponents of civil unions, by and large, aren't interested in seeing homosexuals being treated before the law any differently than anyone else. It isn't a question, in the context of civil union versus marriage, as to whether a homosexual is more or less entitled to enter contractually into a certain kind of relationship than a heterosexual - the issue, legally, is whether or not he is extended the same opportunity to obtain the same sort of protection. From that standpoint, and since legal protections can't readily be adjusted to 'fake equality' as could schools and other facilities, the argument you make is really inconsequential. On a somewhat related note, if we stopped calling 'legal marriage' marriage and simply called all such contracts civil unions, reserving the terminology of marriage for the religious institution from which its tradition arose, would there be a problem?

If a straight couple and a gay couple go to the court house on the same day, are they given the same form or different forms? Even if the only difference is the name of the form, it is a violation of equal protection. The only legitimate argument against gay marriage is religious based; some people don't want the state to use the word 'marriage' for gay couples because they think the word 'marriage' is holy. The best solution is to keep the word marriage reserved for religion while giving everyone equal protection under the law.

Just to touch on a different angle of the argument, I'd like to point out that, contrary to the author's statement, I will deny the certainty of the tax benefits available to married couples. Married couples who each earn roughly the same amount of income generally experience higher taxation than if they had each filed as single. This is common enough that it is often referred to as the "Marriage Penalty." I agree with Kyle that the government should only serve as a purveyor of social contracts. In the case of taxes, equal protection should translate to collecting income taxes from each INDIVIDUAL, using the same standards, regardless of marital status. Just extending the right to marriage to everyone doesn't amount to equal protection. There are people who, for whatever reason, do not get married. How do we have equal protection if married people are taxed according to different rules than singles?

Eric, you're going to have to explain you definition of 'equal protection' to me, then, because I don't think it's the one in the Constitutional sense. The fact that the title of the form is different isn't an obstacle to equal protection, unless the form specifically guarantees fewer rights or privileges than other comparable forms. You'd have to demonstrate that a party was actually aggrieved in some legal way in order to claim an equal protections violation - having to fill out a form of a different title doesn't really lead to any difference in the protection granted. Unless your claim is that of the right to have the government recognize something you want it to recognize - in which case, every form you've ever filled out could conceivably be considered a violation of due process. What if I wanted to legally refer to my marriage as a 'waffle?' Terminology is only important inasmuch as the law explicitly applies itself through it. All you have to add is a clause that says "Civil Unions get all the stuff marriages get" and you've solved the equal protections problem.

Just to be clear, Eric, I don't disagree with you - my point is, give it a legal sounding name (like civil union), use that for everyone, and move along. If this were purely a rights-based argument, we'd be able to get around it pretty quickly. The problem is that there is a segment of the homosexual population which sees the eventual redefinition of marriage as a way to get a foot in the door towards compelling a belief in the 'normalcy' of homosexuality - the idea being that 'we're married too' implies that homosexual couples are in every way identical to heterosexual couples, in every realm including morality. That's a much more drastic social shift, and that's why I think the backlash against homosexual marriage has been so fierce.

Kyle, I understand your point, but imagine if it were the other way around. Imagine if there were complete and absolute equality in state ordained marriage. Then imagine if some religious group advocated changing the name of the form just for gay people. Only the name of the form, no actual denial of rights. This would clearly be unjust discrimination because the state would be singling out a group of people based on how some others seeing them as lesser.

But now you're arguing an emotional point, not a legal one. The bottom line here is, legally speaking, homosexuals want the same benefits (and, ostensibly, the same penalties) as heterosexuals when it comes to being recognized as a union by the state. Bully for them! That's really super. But your contention now is that it will hurt their feelings to have their unions named something different, and effectively that states shouldn't hurt peoples' feelings. That makes a great sob story for the newspapers, but is a wholly uncompelling legal point. If they aren't otherwise being denied rights and privileges, there's no legal basis for a claim of discrimination. Keep in mind that states ALREADY single out specific groups of people for protection - in the form of hate crime legislation. We can't have it both ways here, Eric. . .

At least we can still marry ducks. Right? That is legal, right?

The point here is this...defending marriage as a religious institution is unconstitutional from the 1st and 14th amendment. If you want to give all the same benefits but separate civil and religious unions then that is just fine. I do not care what it is called, I am concerned about the rights which still aren't shared in some states. THERE IS ALSO NO PROOF that heterosexual couples promote a healthy nation...especially with divorce rates as high as they are. There is no proof whatsoever that homosexual marriage is unhealthy, other than religious conjecture, and quite frankly, your argument otherwise is not only silly and ridiculous but bigoted and without foundation. Heterosexual couplings are no more healthy/unhealthy than gay ones. Further, to deny that there is not systemic discrimination against gay individuals suggests a delusion that is near psychotic. Whether you wish to accept it or not, one way or another, it WILL be legal. Iowas was the harbinger.

Anonymous: we can still marry ducks so long as they wear long pants.

gay marriage means less sweet single man poon for me. so even though i'm gay, i'm not for gay marriage.

Ned the Duck wore a very nice tuxedo at our wedding. Which draws up a new question: if gay marriage is so taboo, where does that leave cross-species gay marriage? Guess Ned and I will live outside the law for now in the great liberal state of Virginia.

quacks - the duck provision doesn't apply to squirrels. remember, it is also illegal to put squirrels down your pants for the purposes of gambling.

what about putting squirrels down your pants for purposes of pleasure?

John, that's not a Constitutionally accurate statement. Since the Federal Government hasn't passed a law respecting an establishment of religion (that is, the Federal Government has not imposed a particular religion on the citizenry as a necessary condition for citizenship rights to be granted), and since the Federal Government doesn't actually define marriage at all in the first place, this isn't a Constitutional issue. I don't think I ever mentioned anything about homo- versus heterosexual couples and which is 'better for society - 'the argument here really isn't contingent on that point in the first place and it is either way irrelevant from a legal standpoint. Neither is the physical and perhaps mental health of couples of various types. It has more to do with a view of morality which doesn't have much room for non-traditional relationships. It's not a big deal to extend certain benefits to groups of people - but it is a HUGE deal to compel acceptance of a particular lifestyle as acceptably normal. That sort of social paradigm shift is much more difficult to compel.

By the way, I never said there isn't systemic discrimination against gay individuals - what I said was that, in a case of separate definitions (civil union v. marriage), there would be no legal grounds for a discrimination claim since the privileges extended to all parties would be identical. You can't claim a grievance if you haven't actually been aggrieved. Finally, legality and acceptance are two very different concepts. Smoking is legal, but I don't accept it as a healthy lifestyle choice. What we're talking about here, though, isn't really 'legality' so much as it is 'extension of perceived benefits.' Refer to Jason's post for a more thorough explanation of that last comment, but suffice it to say that marriage opens some doors and closes others when it comes to how Uncle Sam puts his hand in your pocket. The fact that homosexual unions may one day be officially recognized doesn't necessarily lead to a conclusion that all American citizens will implicitly accept homosexuality as a normal lifestyle.

kyle puts squirrels in his pants for pleasure

Kyle, the problem is that in allowing the government to recognize two separate but supposedly equal terms, you are setting the stage for systemic inequality. We have to admit this fact. In order to prevent it from happening, all unions must be covered under the same legal terms and the same body of laws. Otherwise true equality cannot exist. It doesn't really matter what we call it, so long as everyone is covered under the same provisions. For all I care, the government could issue only "civil unions" to everyone, regardless of orientation, and leave the term "marriage" to the religious so that they can feel like they accomplished something by winning a battle over semantics.

As a woman in a homosexual realtionship, its not about accepting the homosexual lifestyle. I really dont care if you accept what my girlfriend and I do or not, its about equal treatment under the law. Simply because I am in a romantic relationship with someone of the same gender does not mean I lack morals, in fact the complete opposite. I would just like my relationship to have equal rights under the law. I would like to be able to see my girlfriend in the hospital if something were to happen, I would like to be able to be covered under her healthcare, I would like to not have my house taken away if she dies. Simple point is I would like to recieve the same treatments homosexuals do. Granting gay marriage would not say that homosexuality is morally right, it is mearly protecting homosexual couples from problems faced in every day life. My girlfriend and I both live by moral codes, we do not cheat or steal or rape or participate in any other atrocious immoral act. It is the governments responsibility to assure that every citizen is given equal treatment, a responsibility which is not met in many states. I love my girlfriend, wether heterosexuals see it as moral or not does not matter to me, all I want is protection as a tax paying, law abiding citizen.