Who said it was "necessary" to do so? Apparently people just decided that it wasn't worth the headache of trying to prosecute it. In any case, the fact that these bans were removed works against the notion of marriage being a fundamental right. The main reason, if not the only reason, it was regarded as a fundamental right in 1949 was that at the time, it was pretty much the only way two people could legally have sexual relations.


You're talking about two different things now: marriage as a fundamental right, and marriage as a furtherance of the state's interests. If you want to examine whether extending state recognition of same-sex couples would further the state's interests, then it would be necessary to inquire whether a same-sex couple is as likely to provide the same quality of environment for child-rearing as an opposite-sex couple. The opposite-sex model has worked quite well. As children are not guinea pigs to be experimented on, I see little reason to mess with something that works. You can go on all you like about how the definition of marriage somehow "changed" in 1973, but you know perfectly well that the only change was on paper, to reflect the undeniable reality that existed in our culture since time immemorial.


In the context of what marriage was understood to be about at the time, that's a bit like saying you can own a car, but you can't drive it.



"Original" was something of a relative term in that sentence. I was referring to the conception of marriage as understood at the time the decision was handed down.


Not without some indication as to which gender is getting the better treatment. By the way, the two main genders in our society are M and F. M/M, F/F, and M/F are not "genders". And the ban on interracial marriages was not predicated on the notion that W/W and B/B were superior to B/W. To put it crudely, it was motivated by the notion that W was superior to B and needed to be kept free of B's "contamination". Such a construct simply can not apply to the sexes the way they apply to the races.


Brown had already invalidated that type of legal logic. Prior to Brown, a number of segregated states were making very strong efforts to make sure that black schools got the same treatement as white schools, in an attempt to forestall a Supreme Court ruling against segregation. The Court did not find that Kansas had unequally treated its black students in any material sense. It simply found that the separation itself constituted an inequality. That was the logic it built on in Loving. To drive the point home further the Court noted:


This was quoting from the court of the same state that enacted the law that was ultimately struck down in this case. So the state itself is saying that the reason for the law is to preserve "racial integrity". Can anyone seriously argue that current marriage law is designed to preserve "gender integrity"? That it's motivated by the doctrine of (what - Male? Female?) Supremacy? There's no way you can make a comparison here.

There is no mention whatsoever of Brown in the Loving decision.
This argument could be seen as both supportive and objectionable with regards to same-sex marriage. Obviously same-gender marriages will not result in the proper familial construct to ensure the survival of our very existence. Yet they also argue that the right to marry another person resides with the individual. In this case, race was the issue. In another case, gender could be the issue.

But this is making my head hurt now. The one thing that I do believe is that same-gender marriage is a right granted by the Fourteenth Amendment. Furthermore, I believe that the Loving v. Virginia case blurs the legality of the same-sex marriage bans, declaring that a state's ban on miscegenation was unconstitutional (what if the state had banned it via a constitutional amendment?).

FargoUT:

To answer your question, if a state were to amend its constitution to include a ban on interracial marriage, the analysis and result would still be the same. Article VI of the US Constitution provides, in pertinent part: "This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every state shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." That portion, or clause, of Article VI is known as the "Supremacy Clause."

It refers to McLaughlin v Florida, which in turn refers to Brown. It's part of an interesting paragraph that sheds a little bit of light on the current subject:


So the Court is saying here (as it has consistently held) that racial classifications carry an inherently higher risk of unconstitutionality than other types of classifications.


The right to marry for the purpose of procreation resides within the individual. If the purpose of marriage changes, then its status as a "basic civil right of man" may need to be reevaluated.

Well, no... fornication laws have been found to be an unconstitutional invasion of privacy. Where is your proof that marriage was only a fundamental right because of its connection to procreation?



I'm sorry, perhaps I should restrict my posts to a single thought so that you can better process the concepts discussed in this thread.

Yes. I addressed how marriage is still a fundamental right despite the diminished role of procreation. Yes, I asserted that the State still has an interest in regulating marriage despite the diminished role of procreation. So.



Well, since - as we have established - marriage is a fundamental right, it is unnecessary to examine whether removing the explicit restriction furthers the State's interest. The only examination necessary is the examination of whether or not it is necessary to exclude it... meaning that it somehow is a hinderance to the State's interest. The State can't prove this conclusively. In fact, in Massachusett's it is illegal to take into consideration an individual's sexual orientation when it comes to adopting a child. So, that State obviously has no problem with same-sex couples raising children. The majority, apparently is only interested in preventing those children from being raised in the ideal environment simply because their adoptive parents are gay. The same goes for California. It is obvious that in these states (where there have already been challenges to same-sex marriage bans, that the State has already given the green light to same-sex couples as parents. Can it then deny them access to the ideal environment in which to raise these children simply because the majority has a hypocritical distaste for a particular group of sodomists? Again, it simply doesn’t work that way.

So, now, the word of law is meaningless? A legal definition that has existed in this country since its creation was absolutely meaningless until after 1973? Oh, it's just a change on paper... I see. That'll fly in court. You can’t ignore the letter of the law. If the law allows it, the law allows it. When the change involves a fundamental right, you can’t just make a change on paper to reflect what you think it ought to be. That’s not the way it’s done. An analysis has to be done regarding the constitutionality of the new explicit exclusion. Marriage is a fundamental right. If the exclusion is related to an interest in procreation, the State has to prove that the exclusion is necessary in order to further that interest. Again, considering that the State requires certain couples to be sterilized before allowing them to marry, and because the State allows couples that it knows can’t procreate to marry, and because in the days before no-fault divorce (and in existing covenant marriages) the inability to procreate was (and is) not grounds for divorce or annulment unless fraud has been committed, it is obvious that the State does not find it necessary to exclude based on an inability to procreate. This being the case, the exclusion of same-sex couples for that reason is arbitrary and therefore unconstitutional.



Exactly, but that's the way it was and this is why marriage must be a fundamental right separate and distinct from procreation. Even if Skinner went the other way on the issue of sterilization, the individual would still be allowed to marry. The justices in Skinner and, in fact, nobody in that time would've denied a sterilized individual the right to marry. They still don't. So, being deprived of the fundamental right to procreate has no effect on one's fundmental right to marry.

Really? When was this?


Just in the fact that no other reasons have been cited by the Court. Its comments were all about procreation.


That's the assertion you're trying to make. That assertion is still being scrutinized, and you still have some points you need to address, such as the ones above and below.


What change has actually occurred in practice? It's a very odd "fundamental right" you're positing that was never once exercised at any time prior to this paper change.


So you're telling me that the Supreme Court has ruled that sterile people have a fundamental right to marry? If not, then you still have yet to show from their rulings that they consider marriage a fundamental right outside the context of procreation.

Well, let's see... the first instance of a fornication law being found unconstitutional occurred in 1977 in New Jersey. State of New Jersey v. Saunders



Well, Skinner mentioned both marriage and procreation as fundamental to our existence. The language does not state that marriage is fundamental because of procreation. It merely states that marriage and procreation are fundamental to our survival. Where does the language in Skinner ever state that marriage was all about procreation? Please. Point that language out.




Have you been reading this at all? Marriage laws prior to 1973 never explicitly excluded same-sex marriage. In order to be able to marry you have to be able to engage in the contract. Sodomy laws prevented same-sex couples from being able to marry because it prevented them from engaging in the contract. And just because same-sex couples have never been allowed to marry is not a good constitutional argument for denying them access to the right now that they are capable of engaging in the contract.



I'm not telling you that at all. We do not have only the rights that the Supreme Court has decided we have. If that were the case, we would have a very limited number of rights. The Supreme Court can only address challenges to laws that violate the Constitution. It doesn't sit back and list off all the rights that we have under the Constitution. If there is no challenge, there is no Supreme Court decision. The fact is, sterile heterosexuals have never been denied the right to marry, have they?

--Fixed quotes. --Amlord

You're arguing the point backwards. The Court never mentioned anything other than procreation as a basis, so the only conclusion left that suggests itself from the context of the Court's opinions is that procreation is the reason for regarding it as a fundamental right.

In fact, the inclusion of the word "marriage" in the Skinner opinion works in favor of my argument, since Skinner's right to marry was not being directly threatened (the statute under review would not have prohibited him from getting married). Therefore, the only reason for the Court to have mentioned it had to have been that it was being indirectly threatened. In other words, sterilizing him would have defeated the whole purpose of his getting married, the whole basis for calling marriage a fundamental right to begin with.


I didn't say it was the reason. I was only shooting down your specious suggestion that prohibition of same-sex marriage is something new. It is not, as you're now acknowledging. The only thing that's new is the exact way in which it's prohibited.


Thanks for finally acknowledging here that your view of the constitutionality of current marriage law is based only on your own personal opinion, and not on Supreme Court precedent. The fact remains, there is nothing either in that precedent or in the Constitution itself that holds that marriage outside of procreation is a fundamental right. The fact that it's been legal does not make it a right. To take another example, driving has long been held to be a privilege rather than a right, despite being legal in all 50 states.

Urm... no, that is a huge stretch. While this particular case reflected the connection between marriage and procreation that existed at the time, it in no way states that marriage is only a fundamental right because of procreation. It says that both marriage and procreation are fundamental to our existence. Are you arguing that because people do not have to allow for procreation in marriage that it is no longer a fundamental right?



I never said the prohibition was new, I said the explicit exclusion was new. If incest was legalized, would it be constitutional to still prevent incestuous couples from marrying? The right to marry has always been denied to them, they were never a part of this "tradition" that you speak of. They have been unable to engage in the marriage contract because of the fact that there are incest laws. But, if it was legalized... if the state removed the incest laws, could it explicitly exclude incestuous couples from the right to marry?



Do I have the right to drink a glass of water in my own house from a bottle that I've purchased from the store down the street? I don't think the Supreme Court has addressed that one and it's certainly not mentioned in the Constitution. I know that the Supreme Court has dealt with the issues of privacy, but never mentioned specifically that my right to privacy extends to drinking a glass of water. So, does it? Can I do that? Is that my right? And, apparently we don't have rights at all unless they are either specifically mentioned in the Constitution or the Supreme Court has made a decision regarding them in a very specific context. Wow. That makes life soooo much easier.

So, I'll refrain from drinking this glass of water while you go spread the word to people everywhere that we no longer have the fundamental right to marry.

Let me know how that goes.

Hint: It doesn't go.

We have many, many rights that have not been "officially" investigated by the Supreme Court. In fact, the scope of some of the rights that have been established by the Courts has not been fully examined yet. Does that mean we don't have those rights outside of that scope? It most certainly does not. We have the right to do anything we want that has not been restricted by the government. If it is restricted by the government, we can go to Court and challenge that restriction. Then, and only then, can the courts - like the Supreme Court - make a ruling regarding that right or whether the scope of a particular right includes the behavior being restricted or whether the State has an interest compelling enough to restrict that right. The Supreme Court has never heard a case regarding a restriction to the right to marry based on the inability to procreate. And the right to marry is not mentioned specifically in the Constitution. You're claiming that simply because of these two facts, those couples that are unable to procreate do not have the right to marry. Am I right? Tell that to a heterosexual couple that is unable to procreate. Tell them that they do not have the right to marry. Take note of how they respond.

Do people have the right to procreate outside of marriage? Hint: yes, they do. Can the government restrict them from engaging in this right? Apparently not. Yet it did for a long time. Does that mean that the right to procreate outside of marriage didn't exist until the restriction was removed? Or does it mean that the right always existed and the government felt it had the ability to constitutionally restrict it?

And driving? Driving has never been a fundamental right. What you're claiming is that marriage was a fundamental right and now it isn't.

State v. Saunders was a case before the New Jersey Supreme Court, not the US Supreme Court. The New Jersey Constitution explicitly contains a broader limit on the State's authority to pass certain kinds of laws:



The US Supreme Court has not ruled in the same manner, even when cases have been before it which would have afforded them the opportunity to do so, such as McLaughlin v. Florida. It struck down an interracial fornication law in that case, not on the basis of the State's lack of authority to pass such a law, but on the 14th amendment grounds of equal protection (i.e. racial discrimination).



The Skinner case was not about marriage per se. It was about sterilization, which impacts marriage in the most fundamental way. At least, it impacts marriage as it has traditionally been understood. If procreation were not intimately tied to marriage, why would a ruling about sterilizing repeat offenders mention marriage at all?



Marriage and procreation are intimately tied, at least in the eyes of the Skinner court and the Loving court. Loving explicitly says :

If marriage is a basic civil right because it is fundamental to our very existence and survival, how can you forward the position that it has nothing to do with procreation?

The district court ruled in Smelt v. Orange County that:


I have already submitted these arguments in this thread.

I am not persuaded by entspeak's interpretation that sodomy or fornication laws kept same sex couples from marrying in the past. It is too convoluted. If marriage (and not marriage and procreation, as the Court has repeatedly lumped them) is a right, then such laws would be un-Constitutional on their face--which the Court has not ruled. Legislatures changed the laws, removing entspeak's barrier to same-sex marriages. But if a legislature can Constitutionally limit the right to marriage by passing a law banning sodomy, then it could do so implicitly by defining who can participate in the marriage contract.

Never said it was a USSC case. Blackstone said that fornication laws have been repealed only because they were a headache to enforce. I merely indicated that fornication laws have been found to be unconstitutional. It is unconstitutional in New Jersey to ban fornification.



I have always stated that fornication laws have either been repealed or not enforced. The reason why is irrelevant to the issue at hand. As a for instance... what happened to section 798.03 (mentioned in the Florida case)? It appears Florida no longer has a ban on fornification.



Hmmm... could it be that marriage at the time was intimately tied to procreation? I believe I've stated that numerous times. But nowhere does Skinner ever state that marriage is only a fundamental right because of that intimate tie.



And in 1942 they were... okay, go on. I would point out, however, that post 1965, procreation was not as intimately tied to marriage as it was in 1942... in 1967, married couples were allowed to use contraception and choose not to allow for procreation. If marriage was a fundamental right only because of the fact that procreation ensures our survival, why was it called a fundamental right in 1967, when married couples were allowed to use contraception (and had been since 1965)? How does marriage ensure our survival if the people in it choose not to procreate? In 1965, the Court rules that a couple can be married and prevent procreation and then, in 1967, the Court still rules that marriage is a fundamental right. Which brings me to your next question:



Well, I've already explained that earlier in the thread, Amlord, but if you need me to repeat it for you, I will.

Is the act of procreation the be all and the end all when it comes to our very existence and survival? Does the act of procreation alone ensure our survival? I am not dismissing procreation as necessary to our survival... the child has to come into this world somehow, but what happens if a child is not taken care of after it is born? What happens? Is it highly likely that a child who lacks care may die? Hmm... Interesting. I do believe that is true. So what role does marriage play in ensuring our very existence and survival? Does it provide - as everyone appears to be claim - the ideal environment in which to care for a child? To ensure that child's survival? Does this ideal environment then have a role in ensuring our survival?

Why was marriage intimately tied to procreation in the first place? Because it provided an ideal environment in which to raise children. Yes? Now, at the time of Skinner and of Loving, was marriage the only legal way to procreate? Were the laws associated with the marriage contract set up to ensure that most children were present in married relationships? Why? Because of this ideal environment. Now, you seem to be claiming that since procreation does not play this fundamental role in marriage anymore, that marriage is not a fundamental right - that marriage has no fundamental function in ensuring our survival now that procreation is only an option in marriage. That denies the reason why marriage exists... to provide an ideal environment in which to raise children. Because - post-procreation, adoption, in vitro fertilization - an ideal environment for children is what the government feels best ensures our survival. The State offers marriage in the hopes that couples will make the best use of this environment. Of course, as has been determined by Griswold, we have a choice in whether we will fulfill that hope and use that ideal environment to raise children, but that doesn't make marriage any less a fundamental right, as was explicitly stated, as you say, two years later in Loving.


The district court ruled in Smelt v. Orange County that:


Interesting that you bring up this case... because this court actually abstained from ruling on whether the the state's definition of marriage was unconstitutional.



First, I never argued that fornification laws kept same-sex couples from marrying. I stated that fornification laws backed up the state's claim that marriage was intimately tied to procreation. The State can no longer make that claim.

Second, Amlord... point to the legislative act pre-1973 in this country that banned same-sex marriage. It certainly wasn't the legal definition of marriage in those states that had one. So, please... point it out to me. In California, for example. What law from 1850 to 1977 kept same-sex couples from marrying?



The Court has not ruled that sodomy is unconstitutional on its face? That's interesting. I thought they had. Maybe I'm wrong about that.

The fact that unconstitutional laws are removed by the Legislature before they are ruled unconstitutional by the Court does not make the original law any less unconstitutional. Unless, of course, circumstances at the time allowed the State to violate that right constitutionally.

I'm saying that marriage that does not involve procreation is not a fundamental right.


Yes. To say otherwise would be to engage in rather convoluted logic. It would basically involve saying that the current restrictions on siblings are not oppressive, but if you eased up on those restrictions to a certain specified degree, they would then become oppressive.


I'm happy to see that things have gotten a lot less complicated for you. I should point out, though, that nothing in your above paragraph follows from what I said.


No, I'm not saying that it's because of those two facts. I cited those two facts in order to show that Supreme Court rulings don't help your case. My reason for saying that marriage without procreation is not a fundamental right is that procreation is the whole basis for having marriage in the first place.

I know you're arguing otherwise, that marriage can serve as a basis for raising children who are not the biological offspring of the spouses, and can therefore be a fundamental right on that basis. That view diminishes the role of procreation to something largely inconsequential. Let's look at Skinner again (which I presume you agree with, since you so far haven't stated otherwise). It condemns forced sterilization on the grounds that "marriage and procreation" are so fundamentally part and parcel of human freedom. But really, what's the big deal if Skinner gets sterilized? He can still get married and raise children, even if they're not his biological offspring. And since there are plenty of opportunities for adoption, the procreation aspect is really all that unimportant, if your conception of marriage is right.


Just for the record once again, that's not what I'm claming.

I don't need to point to a legislative act. The definition of marriage was known to be between one man and one woman. Seemingly, we have lost sight of this. Somehow, the definition has changed in the past 25 years. Oh wait, no it hasn't since same sex marriages aren't recognized in 49 states and Massachusetts has a Constitutional amendment in the works to make that a round 50.

There have been numerous cases of same sex couples suing for the right to marry.

State courts have ruled on many occasions that same sex couples do not have the right to marry. In many cases, the basis for that is that there is no demonstrable harm to the same sex couples.

NY-Hernandez v Robles
NJ: Lewis v. Harris
Minnesota: Baker v. Nelson
Alaska: Brause & Dugan v. Alaska
Singer v. Hara, 1974 in Washington State

In Li v. Oregon, 2005, the state actually forcibly divorced all same sex couples because upon reading the Oregon laws, marriage was already defined as between one man and one woman (a husband and a wife) even before Oregon passed its amendment stating this explicitly.

No law has kept same sex couples from marrying. The definition of marriage has kept same sex couples from marrying.

Amlord,



You don't? I see. Well, then... considering the legal definition of marriage in California was not known to be between one man and one woman, I'd have to disagree with you there. In 1850, California legally defined marriage as "a personal relation arising out of a contract, to which the consent of the parties capable of making it is necessary." I don't see the words "one man and one woman" in that definition. So, what legal definition of marriage in California are you referring to?



This is not true at all. The law defining marriage in Oregon did not define it as between one man and one woman.



Are you saying that you don't need a law to make something illegal? As I stated, the State of California's definition of marriage was not what you claim it is before 1977, so it couldn't have been that. Something had to keep same-sex marriage from being legal... what was it?



Blackstone,



So, you're saying that heterosexual couples that are unable to procreate do not have the fundamental right to do so. Do they have any right to do so?



And what possible compelling reason could the State come up with that would make it necessary to exclude heterosexual incestuous couples from marrying if incest was legalized?



Well, the Supreme Court has never addressed the issue of whether or not marriage is a fundamental right for couples that are unable to procreate. The Supreme Court has never addressed the issue of whether or not non-procreative couples have any right to marry. The Supreme Court has never addressed the issue of whether or not same-sex couples have any right to marry. So, Supreme Court precedent does nothing to help your assertion that marriage that does not involve procreation is not a fundamental right. The Constitution doesn't either.

So, you claim that marriage between non-procreative couples is not a fundamental right. Yet, the government has allowed those couples that it knew were non-procreative to become married and remain married. Why?

entspeak


Because it chooses to.


Think of it like this... if marrying is a fundamental right... .how can we have laws against polygamy or incest inside the confines of a marriage..

IF it is every person's fundamental right to marry any person of their choosing... then how can legislation make any law against polygamy or incestuous marriage??

Either
A. Marriage is a fundamental right and the government has no authority to prevent any adult from legally marrying an adult person of their choosing
(I'm on this side of the fence)
-or-

B. The government has the right to regulate and exclude certain person's from marriage...
(others are on this side of the fence)

Which side of the fence are you going to get on??

That's it? Because it chooses to? So, the State claims it has a compelling interest in restricting marriage to those couples that it knows can procreate. Yet it simply chooses to allow those heterosexual couples that it knows can't procreate because it wants to. The two statements contradict one another. If the State simply chooses to allow those couples it knows can't procreate to marry, it can't claim that it has a compelling interest in restricting marriage to those couples it knows can procreate.



That is not the way it works at all. No fundamental right is completely inviolable. The State can violate a fundamental right. But it's ability to do so is extremely limited... hence the strict scrutiny standard of review. If a law passes the strict scrutiny standard of review, that law is constitutional even if it violates a fundamental right.

It's a privilege, not a right.


Same reason to keep it illegal currently: so as not to encourage it.


I wasn't the one relying on Supreme Court precedent in the first place. You were the one who brought it up. I was just showing that it didn't help you. I'm perfectly happy to argue my point without referring to anything they've said, if that's your preference.


I've addressed this before. It did it in part because as long as it's a man and a woman marrying, a large enough percentage of them will have families that it's not worth the effort to try and sift out the ones who won't. Also, society may well have decided that it's to its benefit to extend that privilege to non-procreative opposite-sex couples. If we decide that it's to our benefit as a society to extend the privilege to same-sex couples as well, then we can decide that too, but it's not for the courts to decide.

Li v. Oregon





I'm saying that common terms have definitions. If an object does not fit into the definition, it doesn't fit. Baseballs are not square. If you squashed a baseball into a square shape, it would no longer be a baseball by definition, even if it had a rawhide cover, red string bindings, and a wound string interior.

Take for instance "marriage". When a term is not explicitly defined by law, courts generally take the common, everyday meaning of the term as the intended meaning.

Baker v. Nelson, a decision by the Minnesota Supreme Court does an excellent job dissecting all of the arguments you have made.







Read that decision in its entirety. It could be a stand alone post on this thread.

Note that the New York Supreme Court in Hernandez v Robles said that hetero sexual marriage was a fundamental right, but marriage of any two people is not.

BINGO!!!

And how was marriage explicitly defined by law in California from 1850 to 1977? You will find that it was defined as "a personal relation arising out of a contract, to which the consent of the parties making it is necessary." That was the meaning of marriage in California as explicitly defined by law.

So, I ask you again... what statute kept same-sex couples from marrying in California?

The California legislature saw exactly this argument in 1977. Which is why they changed their definition to "one man, one woman". They did not intend to extend marriage to same sex couples when they did away with their sodomy laws in 1976. "Marriage is a personal relation arising out of a civil contract between a man and a woman, to which the consent of the parties capable of making that contract is necessary."

Let me ask you: how many same sex couples got married in California between 1850 and 1976? Same sex couples do not fit the definition of marriage, either before 1976 or after it. Before 1976 because of sodomy laws, after 1976 because of the explicit definition of marriage.

Interesting...



Not so convoluted now? Is that it?

So, we agree now that only the sodomy laws kept same-sex couples from legally marrying in California prior to 1977?

I would argue that this is not because they didn't fit the definition but because they were incapable of "making that contract." And this does not mean that they were excluded by definition, because that section of the definition only refers to the issue of consent. They were unable to make that contract because of the existence of a law that made their behavior illegal.

So, has California allowed non-procreative couples (knowing that they were unable to procreate without invading their privacy) to marry? If so, then any law banning a same-sex couple from marrying because they are a non-procreative couple is unconstitutional even on a rational basis.

California State Constitution:



As to how many same-sex couples got married between 1850 and 1976? I believe that I have always stated that none got married. They were not allowed to get married. They were not able to engage in the civil contract because of the law against sodomy. But that was the only reason. If there was no sodomy law, same-sex couples would've been able to marry from 1850 to 1977 under that legal definition.

So, the sodomy laws are repealed. The State realizes that now they have opened the door to same-sex marriage and they decide to close it by redefining the term "marriage" in the law.

Why? Because marriage has always only been granted only to opposite-sex couples in California? Yes, but that was only because of the sodomy law and that law is gone. That argument is circular. "We have only ever granted legal marriage to opposite sex couples because same-sex couples were implicitly excluded by a law against sodomy." And now that the sodomy law is gone? Why now? Why can't they get married now? "Because we have only ever granted legal marriage to opposite sex couples." Why? "Because same-sex couples were excluded by a sodomy law." But that law is gone now. "Yes." So why can't same-sex couples marry in California? "Because same-sex couples have never been allowed to marry in California."

This is the same reason why, should incest ever be legalized, the State could not suddenly change the definition of marriage to exclude incestuous couples. There has to be some sort of valid reason for the exclusion. When that valid reason disappears, the exclusion should go with it. Because, contrary to what Blackstone states, a heterosexual incestuous couple fits the definition of marriage. And once the one obstacle preventing them from being married is removed (a law banning incest), the incestuous couple then is capable of engaging in the contract. And the fact that they are an incestuous couple couldn't then be used to deny them access to marriage because incest would be legal. The state couldn't say, "We've never recognized incestuous marriage in this State, so... so... we can exclude them. And, besides, we have an interest in preventing children from being born looking like mutants." But you removed the ban on incest. "Yes." So, incestuous couples are allowed to procreate? "Yes." So why don't you allow them to marry? "Because... because... because we don't want to encourage that." Encourage what? "We don't want to encourage incestuous couples to procreate." Why? "Because we feel that it is immoral and, besides, we think they might have mutant babies... and we don't like that." But you legalized incest? "Umm... yep... yep we certainly did."

So, the "Same-sex marriage has never been recognized in California" argument is complete garbage because it ignores why same-sex marriage was illegal in the first place and the fact that that obstacle has been removed. So that can't be it.

It can't be procreation because California allows non-procreative couples that it knows can't procreate to marry.

What's left?

Oh, and California extends the benefits of marriage to same-sex couples through its domestic partnership laws.

So, California offers the benefits of marriage only to opposite-sex couples because of procreation, but it offers the benefits of marriage under a different name to same-sex couples because... ??

California regulates marriage for the purpose of procreation... it offers these benefits to married couples because it reasonably expects that they can procreate. Yet it offers the same benefits of marriage to non-procreative couples that it can't reasonably expect will procreate. And it offers the same benefits to same-sex couples as "domestic partner" benefits.

It appears that California has absolutely no real interest in offering the benefits of marriage only because of an interest in the ability to procreate.

So basically, heterosexuals can marry regardless of whether they can procreate or not. Same-sex couples can only engage in these "domestic partnerships" because they can't procreate.

I was attempting to answer the question in your terms. I hold that the real reason no same sex couples got married between 1850 and 1977 (or at any other time before or since up to 2004) is because same sex couples do not meet the definition commonly held to be "marriage". Given California's language (which I could not independently verify), there was a loop hole. Apparently not everyone saw the common definition as the legal definition. Thus it was quickly changed in 1977 when this loophole was spotted. This was bolstered by a referendum bill ---Prop 22 in 2000. Prop 22 passed by a 61.4% to 38.6% margin.



Is there a law in California mandating sexual relations between married couples? If not, this argument is flawed.



So, is marriage itself un-Constitutional since it grants privileges and immunities not granted to single people? If you read this passage too broadly, it would pretty much do away with most of the legislative function.

For example, why should poor people receive Welfare from the State of California? Isn't that giving privileges and immunities not given to richer people? What about affirmative action. That certainly fits the bill. It should be flatly un-Constitutional based upon this clause.

Like it or not, DOMA has passed the rational basis test in US District Court. Maybe Prop 22 (which is essentially the same language as the federal DOMA and is referred to as the California DOMA) is un-Constitutional in California. Fine. The definition of marriage is within the State's power to legislate. Have at it, California. But, that reasoning does not apply on the federal level.

EDIT:

One thing about California which I am not sure when it went into law:

California Family Code 300-310: VALIDITY OF MARRIAGE



I'm not sure if the 1977 law changed both sections 300 and 301 or simply section 300. The use of the term "and" in Section 301 seems to indicate that marriage is between "An unmarried male of the age of 18 years or older" AND an "unmarried female of the age of 18 years or older".

I'll have to check on that.

You also hold that when the State explicitly defines a term in law, that it takes that legal definition as the intended meaning. Or at least that is what you stated here:



Unless you mean that when a term is explicitly defined by law, the courts also take the common, everyday meaning of the term as the intended meaning. In which case, why define anything explicitly by law? What purpose does that serve?

Where in the definition of marriage does sodomy come in, anyway? How could you be anwering the question in my terms? Sodomy is not mentioned at all in the definition of marriage. Not even in the "commonly held" definition. So, how do couples that engage in sodomy not fit that legal definition of marriage?

I'll assume then that you don't agree that sodomy was the law that kept same-sex couples from marrying. You see, there had to be something in the law in order to legally prevent it. No law, no legal prevention.



On the same terms. Can a single person engage in a marriage contract with himself?

If you have a non-procreative heterosexual couple and the state knows they are non-procreative and it still allows them to engage in the marriage contract, it also has to allow a non-procreative homosexual couple engage in the marriage contract. Why? Because of the terms in which non-procreative heterosexual couples are granted the right to marry. They do not have to be able to procreate. What the law in 1977 did was change the definition of marriage such that you only had to be a heterosexual couple in order to marry (procreative or non-procreative), the only class of citizens explicitly excluded by the law was homosexual couples (who are also non-procreative). The only reason they appear to be excluded is because they are a homosexual couple. This violates the State Constitution.



It occurred in the same year.

Again, I will say that if you read that clause too broadly, many state services would be un-Constitutional.

What if I'm 14 and want a driver's license in California. Aren't I being discriminated against? The state offers licenses to 17 year olds (eliminating the argument that 14 year olds are minors). Why not 14 year olds?

What if I want to join the California National Guard and I'm 36 years old. Why should the state be allowed to exclude me simply because I'm "too old" at 36?

The age-old definition of marriage is one man one woman. Prior to the 1960s, this was simply accepted because everyone understood it. All of a sudden, everyone has questioned if we thought was marriage is really what marriage was (and is).

The state allows discrimination on various grounds all the time: race, income level, age, sex, marital status, place of residence, and many many more. Of course the definition of discrimination is "the cognitive process by which two or more things are differentiated".

I doubt many people would agree that we should give everyone $500 a month. But they would agree to give poor people or disabled people that money. Why should parents be treated differently than non-parents come tax day (head of household status). Why should married couples be taxed at a different rate than co-habitating couples? The examples are literally endless.

Back to the definition of marriage. It was clear to lawmakers that when they created the marriage definition (in 1850) that it was assumed that a married couple was one male and one female, both over the age of 18 or given permission by their parents. There are other various conditions (cannot be closely related, cannot have certain diseases, must be mentally competent, etc). Your reading of the California Constitution would make these differentiations illegal.

In addition, the laws in California repeatedly refer to "husband" and "wife" in the context of marriage. And yet are we to assume that a "husband" could be female or that a "wife" could be male? What makes the sky "up" and not "down"?

Why shouldn't 17 year olds be able to freely enter the marriage contract? Ah, they are a minor and legally unable. By why should a parent be given the permission to waive this legal inability to enter into a contract? Who is this "parent" person anyway?

You see what I'm getting at? I hope you will not deny the fact that marriage has forever been between one man and one woman not because the law precludes other relationships from being marriages, but because other relationships do not fit the definition.

When you point to the definition of marriage in California prior to 1977, you say "Look! It says nothing about opposite sexes!" To which the easy reply is : "Opposite sexes were assumed before we were required to find out what the definition of "is" is. When it became apparent that the commonly held definition was not sufficient under the law because of this parsing of the words, the California legislature quickly made sure that their intent was clear: marriage is between one man and one woman.

Without addressing everything, I will say that most of the arguments against same-sex marriage stem from a continuing line of logic--since this is legal, that must be legal, and so forth. We don't allow 14 year olds a driver's license, a prejudicial treatment towards the immutable trait of age. But this is not the same, since driving is not a right, but a privilege. Furthermore, driving is inherently dangerous towards others on the road. If same-sex couples being wed suddenly resulted in heterosexual couples being sent to the hospital, there might be a case for exclusion. Marriage, considered a right by the Supreme Court, is not inherently dangerous to anyone outside of those entering into the contract.

The state prohibits a 36 year old from joining the National Guard (?). This is suspect and perfectly arguable as a case of unjust prejudice. It was once that women were not allowed to join the military. Did that make it legal? Tradition stated that women were not suited for the military. Yet it wasn't true, since women could still end up on the barrel end of a gun.

Arguing traditional meanings is not legally valid. So please, in these forums, stop doing it. Traditionally, slavery was fine. Traditionally, women weren't allowed to vote. Traditionally, interracial marriage was against the law. Traditionally, same-sex couples aren't allowed to wed.

Simply that a majority of individuals vote for something does not make it inherently right. A constitutional ban on same-sex marriage would be legally sound, which is why the push to do so is as forceful as it is today. However, since Massachusetts has allowed same-sex couples to marry, and the Constitution's full faith and credit clause would warrant that these marriages be recognized in other states, DoMA seems to contradict constitutional law.

So I ultimately come back to the conclusion that I've long since made: same-sex marriage is a right granted by our Constitution. Until the 28th amendment shows up to ban same-sex marriage, I posit that it is inherently granted. The fact that this amendment is being so fought for is a sign that this is true. They know it and it scares them so much that an amendment is needed to ban it.

You're quite wrong there. Law is all about tradition. That's what gives it stability and predictability. Yes, there are times when it has to change, but that change needs to be made deliberately, by the people and their representatives - not by the whims of judges and activists claiming that something is a right, with nothing to back it up but their own preferences for how things should be.


And you know what these two have in common? I'll give you a hint by throwing out two numbers associated with them, respectively: 13 and 19.


Actually, that's not a very old "tradition", and it added something new to that which never formed part of the traditional definition of marriage: race.

And yet, still, the "activist" judges needed to get involved. Brown v. Board of Education, Browder v. Gayle, Loving v. Virginia, even Lawrence v. Texas.

And again, I will say that laws can't arbitrarily discriminate. The discrimination must be reasonably related to some legitimate purpose - at least. In the case of a fundamental right, the discrimination must be necessary in order to further that legitimate purpose.

Now, every individual has the right to marry the person of their choice. The Supreme Court has very clearly made that statement. This is not to say that the State can't limit that choice - they can and they do, but in order to do so, there must be a legitimate purpose and the limitation must be necessary in order to further that legitimate purpose. Now the State does not care if a heterosexual individual chooses to marry another heterosexual person of the opposite sex even if their union will not result in procreation, so how can it claim that it is necessary to prevent a homosexual individual from choosing to marry another homosexual person of the same sex even if that union will not result in procreation? It obviously isn't. So, even if marriage is all about procreation, if an individual is allowed to marry a non-procreative individual, then it is obvious that the State does not feel it is necessary to have an exclusion based on the ability to procreate.

What is the difference (as it relates to the function of marriage) between a same-sex couple and two 90 year olds getting married? Both are unable to procreate. The State is aware of this inability to procreate based on information readily available to them without an invasion of privacy. What's the difference?



Which laws?



Well, you see, Amlord, we have laws for a reason. If it is not illegal it is legal. Being that civil marriage is a legal contract, if the definition does not exclude them, they are not legally excluded.

Why stop there? Why stop at same sex coulpes? Maybe your list could look like this:

"Traditionally, slavery was fine. Traditionally, women weren't allowed to vote. Traditionally, interracial marriage was against the law. Traditionally, same-sex couples aren't allowed to wed. Traditionally, non-procreating couples (either same sex or hetero) of blood relation aren't allowed to wed. Traditionally, marriage consisted of only two people."

So, why not let them all marry? Your initial list seemed to stop at an arbitrary point. And that's the problem with your argument.