Legality of Laws to ban Marriages?

[dureau]

Amendment I - Bill of Rights -- Freedoms, Petitions, Assembly:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

If "Congress shall make no law respecting an establishment of religion" then laws based on "Because the bible says so" or with strong religious respects should be immediately thrown out right? (ie. NC’s Amendment 1)

Amendment 14 - Constitution -- Civil rights:
Section 1 - All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
(Due process is the legal requirement that the state must respect all of the legal rights that are owed to a person.)

So as a BORN citizen of the United States, even though I am homosexual, NO State shall make or enforce any law which shall abridge the privileges or immunities of myself as a citizen the United States; nor shall any State deprive me of life, liberty, or property right?

So taking away my LIBERTY, the power to do as one pleases or the power of choice, is illegal according to the Bill of Rights? Taking away my choice to marry someone of the same sex is ILLEGAL right?

Amendment 10 – Bill of rights -- States' rights:
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

So according to this States are not allowed to do anything PROHIBITED by the Constitution/Bill of rights? So that means States CAN NOT ban gay marriage because it is IN FACT depriving a citizen of the United States of their LIBERTY and therefore it goes against Amendment One of the Bill of Rights and Amendment Fourteen of the Constitution because the reason for banning such an act is because of a person’s religious beliefs in Christianity or other religion where a union of the same sex is seen as blasphemy?

[leonie36]

But we have federal law called Defense of Marriage Act that specifices who can get married.

[bearchan]

If "Congress shall make no law respecting an establishment of religion" then laws based on "Because the bible says so" or with strong religious respects should be immediately thrown out right? (ie. NC’s Amendment 1)
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That's incorrect. A law isn't unconstitutional just because it has a religious antecedent. (If that's what it meant, then we'd have to make murder and robbery and rape legal - those are "in the Bible" or other religions too....and long before the Constitution was around. Also, everyone would be legally REQUIRED to drink beer and eat pork.)

Amendment 1 prevents the government from establishing one Church/sect that has special privileges by law. (In fact, the government can even give privileges to religious institutions...but only so long as those privileges are given to ALL religions....that's why no religious institutions pay property taxes.)

Your second point (the 14th Amendment - Equal Protection), is the most critical point. I would say that you are correct. However, this, as most legal questions, is open to how it is interpreted though. There's not Gospel Truth for the Constitution...except the Supreme Court.

Your third point (10th Amendment), well, first it's long-acceppted that the 10th amendment is nothing but declaratory; and adds nothing to the Constitution. So making arguments based on it (unless you are a lawyer for a State) is kind of pointless. Also, it is entirely dependent upon whether the 14th Amendment applies to gay marriage...and since that isn't settled...it doens' give you much. Finally, since the Constitution doesn't prohibit the States from regulating marriage contracts, this Amendment can also be used for States banning gay marriage.

A further problem is that, because you skipped straight to those nifty Amendments, you missed at least 1 strong (Full Faith and Credit Clause), and 1 weak (Commerce Clause) argument in favor of gay marriage that exist within the body of the Constitution. You really need to read the whole document. Yes, the Amendments are sexy and glamorous, but there's some great stuff in the bulk of it too.

[larenzo]

I personally have no problem with gays getting married. I have no right to say who can marry who. Neither does anyone else. I think this is a mute issue because people want to bring in GOD. That's fine with me because I am a Christian. HOWEVER, a sin is a sin. If being gay is a sin isn't adultery a sin as well? Isn't molesting a twelve year old boy a sin? Is stealing a dollar a sin? Is killing a sin? Unfortunately, people who are Christians usually love to judge others while they are doing wrong themselves. I guess what I am getting at is that people should live and let live.

If you want to marry a person who is the same sex as you. Go for it! Thus country has way too many issues to worry about their citizens personal lives.

[smid]

I'm awfully glad that you're not on the US Supreme Court.

Your first agrument is utterly unprecedented. The Court has never struck down a law that reflected a moral value learned from religion because the Establishment Clause prohibits legislated religion. That Clause, of course, prohibits a legislature from adopting an official religion, but does not prohibit a legislature from legislating MORALITY, which is not the same thing as religion.

Your 14th Amendment has the "virtue" of having a lot of precedents .... all of which were wrong IMO. If the Justices did their job correctly, then the Due Process Clause clearly would only be a requirement of fair procedures. Instead the Justices do their job incorrectly and the Due Process Clause means that they strike down laws according to what they deem to be a freedom people deserve to have. I hate it. This argument of yours might work, but that is extremely unfortunate because it continues to promulgate a falsity about what the Due Process Clause means.

I hope that some day, before I die, the correctly narrow interpretation of the 14th will finally become the prevailing interpretation per a ruling of the Court. But I am extremely pessimistic. The fact that the Court might legalize gay marriage with this false interpretation of the 14th makes me both angry and sad.

[spengler]

Your reasoning about the first amendment is fundamentally flawed because laws against gay marriage aren't religious. They're based on cultural beliefs that are based partly onn religion, but so are all kinds of laws. Just because many opponents of gay marriage base their arguments on religion isn't really that relevant legally. The most vocal opponents of slavery were northern religious groups like the Quakers, and their opposition had a lot to do with religion too.

Your reasoning on the tenth is not accurate.

The equal protection clause of the fourteenth amendment is where you need to stick. I don't know if I agree with your specific reasoning exactly, but you're on the right track.

ADD: I agree with Mutt that government shouldn't be involved in marriage at all and until very recently in western countries they historically haven't been. You got married in the church, it was registered in the church, and that was pretty much where it stayed. It's only with the advent of pensions and social security survivors' benefits and income taxes that it has even become a legal issue. The government doesn't regulate other sacraments like baptism or confirmation, so why marriage?

[jerard]

The Bible says "Thou shalt not murder" and murder is also against the law. So by your theory, we should allow murder to take place.

There are many non-religious arguments to the ban on same-sex marriage. I don't agree with any of them, or the religious argument, but they do exist. You seem to be only focused ont he religious argument. Let's hear some of your reasons the non-religious ones should be unconstitutional also.


*EDIT* - My thought on the subject, just to make EVERYONE happy, is to do away with all the privileges and benefits for marriage. Everyone will be on an even playing surface, and the government will not be in the business of marriage at all.