The question for debate:
Is it really necessary to amend the Constitution in order to define marriage?

In another thread, a question was raised re: Bush’s stance on gay marriage.

It is interesting to note that a search on-line for a definition of marriage is apt to find a gender-neutral definition. e.g.:


The thought occurred to me however, that if I were in a court of law, the judge would likely reach for a different dictionary. My copy of Black's Law Dictionary is a 5th edition, copyright 1979. It's been around awhile and may not be current, but it defines marriage:


An on-line search seems to indicate that the 7th edition is the current standard, but I also found, FindLaw for Legal Professionals where marriage is defined:


Building Codes are enacted into law by a practice of adopting by reference. Thus a state legislator needn't be concerned with the difference between a "grounded conductor" and a "grounding conductor," as adopting the National Electric Code by reference defines both.

If nationally recognized legal dictionaries already define marriage as being between a man and a woman, why is a Constitutional Amendment called for? Wouldn't it be sufficient for the U.S. Congress and/or the state legislatures to simply adopt recognized legal definitions by reference to a given legal dictionary?

Let's see if I can explain the logic.

Yes, in answer to your questions, some dictionaries and some states define very clearly what they think a marriage looks like. One man, one woman.

However, that creates a "lesser class" of committed couples -- homosexual couples -- who are not permitted to partake of the legal benefits of the marriage license issued by the state. Another possibility is that a state -- like Hawaii -- would decide that same-sex marriages are something they are willing to sanction and that it would create a lawsuit situation when a married same-sex couple left Hawaii and tried to exert their rights elsewhere.

The worry for many of those opposed to same-sex marriages is that a Federal court somewhere will decide that this violates the (insert your favorite here) Amendment by discriminating against same-sex couples.

No one knows what the Supreme Court would do in that case. So, to take the uncertainty out of it, they want to write it into the Constitution that same-sex marriages cannot happen. This can't be a "law" or "resolution" or even a "state constitutional amendment", because the court's interpretation of the U.S. Constitution would trump all of those in a court ruling.

So, those opposed to same-sex marriages want to make it clearly specified in the U.S. Constitution what "marriage" means.

You would think so, but apparently it is not enough.

When my Wife and I went to apply for our Marriage Licence there were, if I remember right a series of questions for the "female" to answer, and a series of questions for the "male" to answer. A third set of question dealt with our "eligibility" to Marry. Where we "closely related" and if either had been Married previous. If you answered yes, then you had to provide evidence to prove that a divorce had been granted, or that the previous spouse had died.

After leaving the Courthouse with Licence in hand, we both felt that we had entered into a Contract with terms acceptable to all.

Now there is a movement afoot to change the defined intent of a contract that I entered into.

If it takes a Constitutional Amendment to quarentee this, I will support it.

Did the contract specifically define an "intent" that would not be applicable to, say, two women? What specifically was in this contract that indicated an "intent" other than to marry and share your lives?

Curious minds want to know.

Redliner1989 answers:

Lets see, hmmmm, a section for a female, a section for a male, a section to determine if the two parties met the qualifications to "Marry"..............

Nope no place for a second male, or a second female.

OH YES, and the State Statute that defined what condition are acceptable to the State for a legal MARRIAGE......

Yep, sure did!

Now curious minds know!

Well, if a state passes a law that explicitly states that marriages between two women or two men are legal, then all the definitions in all the lawbooks in the world can't change that. I don't see how even the most conservative Supreme Court could say that such an law violates the Constitution in any way. Therefore, such an amendment would be necessary for those who wish to make sure than no same-sex couples ever marry.

Let me make it clear that I consider such a goal, and such an amendment, to be pure evil.

[quote=redliner1989,Mar 11 2004, 11:06 PM] [QUOTE]amf Posted on Mar 12 2004, 03:09 AM
Lets see, hmmmm, a section for a female, a section for a male, a section to determine if the two parties met the qualifications to "Marry"..............

Nope no place for a second male, or a second female.

OH YES, and the State Statute that defined what condition are acceptable to the State for a legal MARRIAGE......

Yep, sure did! [/quote]
Umm... I still don't see it in your answer. "intent" does not equal "qualifications". What is the "intent" in your license that couldn't be satisfied by two males or two females? Read the license and provide the quote that indicates an "intent" (I could post the definition, but I think that's usually annoying).

Merci!

Maybe this will help ya...

From the Statute:

25-1-1. Marriage defined -- Consent and solemnization required. Marriage is a personal relation, between a man and a woman, arising out of a civil contract to which the consent of parties capable of making it is necessary.

Note: "between a man and a woman", "contract"

Pretty darn clear.

later dude...........

Oh, and before you go down the road that I know you want to go down. I am a Licenced Real Estate Broker I know intent, in a final contract can be explicit (see the Statute), or made through a series of actions to which both parties to the contract agree happened.

Now, go ahead and post your definition of "intent", but please make it a relevant definition of the above "contract".

Which gets us back to something I said before--what's really being defined here is social norms. That's what lead to this definition--as others here have pointed out, that definition has changed dramatically throughout history. The reason for these changes has been changing social norms. This explains all the controversy, as well. Those against are railing against the changing social norm, and therefore acceptance, which goes against their beliefs. It is certainly angering to see society accept something you firmly believe is wrong--that's where the passion in the arguments come from. However, this is all emotion driven--which is also why it seems so difficult to back up such sentiment with concrete examples of exactly what harm would occur. Because it's not really the harms that are being argued, but the change in social norms showing acceptance of such activities.

Even if I agree with you, where is the evidence that Gay Marriage has become something that is socially acceptable so that the "norm" needs adjustment?

I think what you mention, the change of the social norm, is refereing to, at least in the latest change in the "norm" is the change of law making Blacks "free to wed" Whites.

Prior to the "change" in the law, the above statute could have read: "Marriage defined -- Consent and solemnization required. Marriage is a personal relation, between a man and a woman, arising out of a civil contract to which the consent of parties capable of making it is necessary."

After the "change" in the law, the above statute read: "Marriage defined -- Consent and solemnization required. Marriage is a personal relation, between a man and a woman, arising out of a civil contract to which the consent of parties capable of making it is necessary."

No change, whatsoever was needed because the law was NOT sexual orientation based, in fact it was a change in law to reflect the color on ones skin.

At about the same time, many other laws were challenged and changed, again, all based on skin color.

Now, in the case of Gay Marriage, make the appropriate changes to the statute and note a radical change, not simply only in wording, but also Intent.

The decision in Loving vs. Virginia is clearly based most strongly around assuring the right of a person to wed who they wish to. The court could have said the Lovings had the same right as anyone else to marry a person of the same race, but the court decided, rightly, that their right to marry the person they wanted to marry was being infringed.

Men who registered to vote before womens suffrage had signed a contract that specified the gender of the party involved, that doesn't mean they lost anything when women were allowed to vote.
Your marriage is not effected in the least by allowing others to wed.

Good to hear that you're a licensed real estate broker. Good thing you're not a psychic, though, since you really missed where I was going, which was stated in my previous question:



If you look at the statute you quoted and remove the phrase "between a man and a woman", does this really change the intent? Is "Marriage defined -- Constent and solemnization required. Marriage is a personal relation, between TWO PEOPLE, arising out of a civil contract to which the content of parties capable of making it is necessary." Does the intent really change? Or does it just change in YOUR mind, because you don't want gay marriages?

Redliner1989 replies:

Are you joking? Read the decision. Here are just a few lines from the case:

"In June 1958, two residents of Virginia, Mildred Jeter, a Negro woman, and Richard Loving, a white man, were married in the District of Columbia pursuant to its laws."

"Virginia is now one of 16 States which prohibit and punish marriages on the basis of racial classifications."

First, Blacks and Whites WERE able to Marry in MOST states at the time Loving vs. Virginia came before the Supreme Court in 1967.

Name one State that recognizes Gay, or Same Sex Marriage. While the States prior to 1967 were passing laws allowing inter racial marriage, the opposite is true now. Even the threat of Same Sex marriage has States racing to strengthen the current marriage laws.

Second, this clearly indicates that a violation occurred when the "State" violated the Constitution for a Man to wed a Woman based soley on skin color.

No where in the case is it indicated that the Court approved individuals"to marry the person they wanted to marry" no matter what.

This is clearly a misstatement of the findings.

Look at it this way, shouldn't participation in the "Olympics" be open to everyone? No, You must qualify to participate in the "games". Yet I do not hear this huge outcry that anyone wishing to participate is excluded.

How about this line from the decision: "The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men."
Your personal prejudices aside, homosexuals are free people.
You are using circular logic here. You are arguing that the existence of prejudice justifies it's existence.
And it violates the constitution to deny the right of a man to marry based on the gender of the person he loves.
LIE. The state didn't deny the Lovings the right to marry- they denied them the right to marry the person of their choice.
Competing in the Olympics is not a basic human right.

The problem with relying on legal definitions found in books is that there is always another book that doesn't agree with your definition.

From Duhaime.org : Marriage - The state-recognized, voluntary and exclusive contract for the lifelong union of two persons. Most countries do not recognize marriage between same-sex couples or polygamous marriages.

It says most countries do not recognize marriage between homosexuals, but it defines marriage as between two persons.


From Nolo.com

The legal union of two people. Once a couple is married, their rights and responsibilities toward one another concerning property and support are defined by the laws of the state in which they live. A marriage can only be terminated by a court granting a divorce or annulment. Compare common law marriage.


Nothing about gender.


While I support gay marriage and oppose an amendment that discriminates against homosexuals, I would say that such an amendment would be the only way to make anti-gay policy constitutional. If those opposed to gay marriage are so concerned that gays may ever be able to get married, an amendment may be their only way of at least postponing homosexual equality.

To Jaime:

Thanks, it is tiring to continually have to debate while fending off these kinds of implications.

To Slim: My definition came from a legally accepted Statute. The same Statute can be found in many State "Marriage Laws" and have legal standing. Just wanted to clear that up.

To Grendel72:

Your quote that you provided from "Loving vs. Virginia" continues to misrepresent to case, ""The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men."

This case AGAIN, and the findings of the Supreme Court, recognizes that the "marriage" between a Man and a Women, which is now, and was the law then, a union between a Man and a Women. All comments in that vain addresses IT.

Show me just one line in "Loving vs. Virginia" that indicates that this is not the case.



No, I am using legal precedence.



Redliner1989 responds: Loving vs. Virginia violates the constitution to deny the right of a man to marry based on the gender of the person he loves?

Where?



Actually, the State of Virginia didn't deny the Lovings the right to marry, the Lovings were already married prior to returning to Virginia, but had they attempted to marry in Virginia, they would have been stopped from doing so, based on Race. No Lie Grendel72 it is fact.

To AMF:

Intent, I think you agreed can be written.

If you changed the statute, you changed the intent.

I am NOT stating that. Rather, I am trying to show that this is what the issue is. There is one group saying that the norm does in fact need to be adjusted (or has been), and another group stating that it does/has not.

No it doesn't. The Lovings could have been told that they were free to marry a person of the same race if the important consideration wasn't the freedom to marry the person of your choice.
I already did. I am a free man, but the government would deny my right to marry.
The legal precedent is that marriage is a basic human right, and as such cannot be denied to a class of people without a strict scrutiny test to determine that it would be advantageous to deny said right.
Don't put words in my mouth.
The decision in Loving vs. Virginia was that the gov't was violating the Lovings right to marry based on the race of the person they love. Right now the government violates my right to marry the person I love based on his gender.
The state refused to recognize their marriage, based on race.

How about you respond to my comments from earlier:

Gendel, the Supreme Court Did not base the decision AT ALL on sexual orientation. I again ask you to provide the Supreme Courts comments, or Judgement in which they did!



YOU have never been denied the right to "marry" YOU refuse to attempt to "qualify" for it. And that is YOUR right!



Marriage IS something that YOU have not been denied access too. Choose NOT TO access it AND IT IS YOU avoiding it, NOT the Government keeping it away from it!.

I am going to bed know, I will finish when I get the chance.

The supreme court's decision had nothing to do with sexual orientation, and I never said it did. The court's decision was based on the fact that marriage is a basic human right, and should not be denied to a segment of the population.
Just as the lovings had the right to marry people of their own race rather than the person they love?
The right to marry the person I love most definitely is denied to me.

The ongoing debate between the two sides, more to the point, between Grendel72 and myself is THE perfect example as why a constitutional amendment may indeed be necessary to end this.

The question as outlined by Jamie:

"Is it really necessary to amend the Constitution in order to define marriage?"

In the United States of America, in 2004, most states have statutes that already define Marriage.

The statutes all define it as "only" between a Man and a Woman.

Yet some would say that this denies basic human rights because it denies the Institution from anyone marrying anyone.

The need for a Constitutional Amendment arises to affirm that many "Institutions" ARE available to all American's, yet, should you wish to avail yourself of the "institution" YOU must take the steps necessary TO qualify.

Lets look at what opening all "institutions" to everybody, and the legal precedent "it" creates could lead to, ALL of which are considered "basic human rights".

The right to shelter:

Using the same logic as is presented by the Pro Gay marriage side, but placed on this basic right.

A Homosexual Black Woman want to buy a home. She diligently saves her money, borrows money from friends and is given money from family members. She secures a promise from a bank and can now afford a $100,000.00 house. She spots the home of her dreams AND there is a For Sales sign in the yard. She calls the Owner and asks how much he wants to sell his house. The Owner responds $225,000.00 is the appraised value, but I will take $210,000.00 for it. She offers $100,000.00 and he refuses the offer.

Should the Woman be able to take the Owner of the home to Court because he is standing in her way of obtaining her "basic human right" based soley on her ability to qualify for the house?

After all, she worked hard to qualify for her "dream home". She has a right to the home of her choice, sure there are other options, but THIS IS the home she desires to spend the rest of her life in. And, if shelter is a "basic human right" she should be able to inhabit ANY shelter she wants to inhabit whether she can afford it or not.

The answer is NO.

Yet using the logic, that simply changing terms harms nothing, she should, and she should win the case.

Who does it hurt. Only the Owner of the home, but he is such a small portion of the entire economy that the harm caused him pales in the face of someone getting their "basic human right" fulfilled exactly the way they want it.

Redefining a "base institution" from one that requires "qualifiers" to one that requires "no qualification" is THE reason that a Constitutional Amendment may be required. When an institution as solid as Marriage is able to be radically changed for such minor reasoning, All institutions become fair game. Risky at best

redliner, your example is severely flawed, but you're on the right track with the first part of your posting.

Why is your example flawed? Because you describe a negotiated contract between two individuals, one who wants to sell something and one who wants to buy it. That's nice, but it doesn't resemble marriage, which is a contract between two people AND THE STATE. Your example doesn't include the government in the middle saying who the person with the home can sell it to or who the buyer can buy from. The problem here is the government is making the rules and favoring one set of parties over another.

Try again to come up with another example, though. You had a good summary of the issues to start.

AMF Stated:

Actually, the marriage IS a contract that meets the REQUIREMENTS of the State, the State Licence is issued to "give notice the world" that the Individuals have met said REQUIREMENTS.

Read the Statute again:
"Marriage defined -- Consent and solemnization required. Marriage is a personal relation, between a man and a woman, arising out of a civil contract to which the consent of parties capable of making it is necessary."

I will once again point out "between a man and a woman". Please note that it does not read "between a man and a woman and the State".

A License and a Contract are two absolutely different legal entities.

Again, Why do we need a Constitutional Amendment was the question. To protect the institution, and many more institutions from those who want all qualifications to cease.

again, review AMF's Statement:



A contract, by law (which is State Statute or falls under Federal Jurisdiction) has qualifications that are regulated by Law, be those Civil Contract, Real Estate Contracts, etc. The State regulates who may enter into contracts, and who may not, State, Local and Federal Regulations can, and many times DO tell individuals where they may live (case in point, eminent domain). Don't think the State can "Force" people out of their homes?

The effort to distract from discussion was a noble effort, but it makes even clearer the need for a Constitutional Amendment to define Marriage.

redliner, your analogy does fall flat.
The exchange of property is not met by one party in your example. A closer analogy would be to the old tactic of redlining by race in real estate deals, where a person of one race was prevented from buying property in a certain neighborhood whether they could afford to or not.

Grendel72 wrote:


You miss an important aspect of the debate. I will post it again:

"Marriage defined -- Consent and solemnization required. Marriage is a personal relation, between a man and a woman, arising out of a civil contract to which the consent of parties capable of making it is necessary."

Gay marriage also misses not one, but two of the conditions.

So what? the women in the example only failed to meet one condition.

Again, "Why do we need a Constitutional Amendment to define Marriage". Without it all contractual "unions" will have less meaning.

I do not think this is an important aspect of the debate. Respond to my post from earlier if you are going to insist on pedantry:

The exchange of property between individuals need to be equitable and agreed between said individuals. Your example does not include uninvolved third parties butting into other peoples private affairs.

I didn't answer because the question states that registering to vote, or the act of voting is a contract, which in and of itself is false, and therefor has nothing to do with the question at hand which is "why do we need a Constitutional Amendment to define Marriage"

Again I will post the legal definition of "Marriage" per the State Statute in which I got married:

"Marriage defined -- Consent and solemnization required. Marriage is a personal relation, between a man and a woman, arising out of a civil contract to which the consent of parties capable of making it is necessary."

A state regulated activity is not a Contract. If you require the legal definition of a "contract" there are many online resources that can help you with that.



"need to be equitable"?. This is NOT a discussion of equity, it is a discussion on "Contractual requirements" and "qualifications within contracts" and when the state can and cannot create situations, statutes as is the case of Marriage, where one must qualify or meet certain requirements before entering the institution.

Who establishes what is "equitable" if the parties can't? (and it does happen). The State!

The answer is yes, the State can, and does. Marriage is but one of those. I believe that the whole concept is under duress and that a Constitutional Amendment may indeed be needed to save it.

Pedantry at its finest. I do so wish you would debate in good faith rather than weaseling.
I can guarantee you that people getting married meet with each others approval. The people actually involved in the contract want to enter it.
In your analogy, one of the people involved in the contract is being shortchanged. With same sex marriage, the people entering the contract are happy with what is being offered- it is only outside parties who are completely unaffected who complain.
If I believed that this was your real reason for favoring the constitutional amendment I would continue the debate, but as it is I'm through with this inanity.

The reason that A Constitutional Amendment may be needed is to STOP people from redefining things that have LEGAL definitions.

1. A Race based Supreme Court Ruling has nothing to do with Sexual Preference.

2. Marriage IS a CIVIL Contract between 2 individuals of opposite sexes!

Call is Pedantry if you wish. You post an example, in which the entire premise is false, then expect a correct answer? Sorry, it just doesn't work that way. I am not a mind reader.



I can guarantee you that people getting married meet with each others approval, and the states requirements, without "shortchanging" the long established, legally defined statute to which MILLIONS UPON MILLIONS entered into contracts!

Yet another reason that a Constitutional Amendment, defining "Marriage", may indeed be needed! The States interest in the institution, as well as the Millions who met all requirements are who would be shortchanged!




Exercising your right to walk away from a debate is of course your right. I am glad to hear you decided to stop your "inanity".