I suppose almost all of you heard about this:

Gay Couples Tie the Knot in Massachusetts

It seems to me that May 18, 2004, will go down in American history as a landmark.

This thread is not intended to debate how you feel about same-sex marriage. Now that it is, at least for a while, a real phenomenon in the USA, I wonder about the future.

It seems probable that Massachusetts will rush to define marriage as pertaining to opposite-sex couples only. Before that can happen, there are going to be a lot of same-sex couples joined in legal wedlock.

To be debated: What will happen to these couples if same-sex marriage is banned in the future?

Will they continue to be married in the eyes of the law? Will the ban be made retroactive? Is that even legally possible? If not, will there be a special class of same-sex couples who will be legally married, while others cannot?

I ask those of you who are experts in the law to speculate about what might happen.

If & when same sex marriages are banned, no further same sex marriages will be legally allowed, but the existing ones can't be made void. Since, same sex marriages will not have the concept of natural inheritance, much confusion related to adopted children of such couples will be there. Such marriages will have these issues lingering around for decades even after they are banned.

Well, I'm by no means a legal expert, but I'm not sure that's necessary. So, I'll say what I think might happen, depending on how a "ban" might be crafted. The prevailing opinion in the US right now seems to be in favor of defining "marriage" as between a man and a woman, but still recognizing a same sex union as a "civil union". If we assume that this sort of concept eventually becomes part of the Constitution, then the "full faith" argument for making Massachusetts state law the law of the land in this regard becomes moot. It would then fall back to what each state decides on their own and a same sex couple that was considered "married" in Massachusetts would be considered to have a "civil union" in Oregon or California, and have the rights under each of those states' laws.

Recognition of same-sex marriages is just a matter of time. Every time there is a social change of this nature (Blacks allowed the vote, segregated schools banned, women allowed the vote, women allowed legal equality, divorce laws enacted, etc) there is always a group (always right-wing, usually religious) that opposes it, declaring that whatever this most recent change is it will result in the end of civilisation and life as we know it.

Inevitably the change goes through, transition is not always easy, but civilisation goes on and people are better off, equality is served and that same vocal group goes into hiding waiting for the next social change they can protest.

I have heard a lot of people speaking out against gay marriage. A few bring up some genuine legal and ethical concerns that will need to be addressed, and that people are justified in being concerned about. But a lot just rant about the evils of homosexuality, call aids the 'gay plague' and cite an obscure section of leviticus where homosexuality is declared a sin, while conveniently ignoring the next page where eating shellfish and wearing clothing of more than one type of fabric are also considered equivalent sins.


There will be some backsliding, in particular if Bush proceeds with his plan to use the constitution for the first time ever as a tool to suspend rights. However in the long run I do not think it likely that gay marriages will be banned, and as such these people will have their marriages recognised without difficulty.

If the conservative right does win a temporary victory, one can be sure they will try their hardest to make these existing mariages nul and void. I hope that does not happen...

What will happen to them? Well they will be forced by a Catholic influenced society to continue their educating crusade towards equal rights. I know some people will call me John Kerry on this, but I have changed my mind (or as some people call it "Flip-Flopped") on this issue.

I used to think NO when it came to gay marriages, but then I it hit me, "What do I care?"

Sanctity of marriage??? I think that the divorce courts and lawyers have been destroying the sanctity of marriage for decades.

So, I put my "bull headed" thoughts away, and actually looked at the issue, educated myself on the issue, and CHANGED MY MIND. I hope that you all don't think any less of me for doing so.

Gov Mule,

Nope, I don't think any less of you. It takes a great deal of self-confidence and thoughtful reflection to change.

Resistance to change no matter what is being bull-headed.

Anyway, I'm also no legal expert, but if civil unions are allowed, I don't think any legal issues will come up that are different from hetero marriage.

You see, marriage is really nothing more than a civil union under the law. That much I know. Whatever else is involved with marriage has to do with spirit, and that can't be legislated.

Eh, I'm repeating myself myself reapeating I'm, eh.

It just strikes me as silly when it seems that everyone is OK with civil unions.

I think it depends on how the future law is written. I have to be honest, I have not read the specific statute being debated in Massachusetts, so I can't comment on this. Assuming there is no mention of a grandfather clause, then a judge will decide.

If there is a grandfather clause, then marriages entered in before said law would be legal. If there is no grandfather clause specifically mentioned, then there may be some precedent for voiding the existing marriages. For example, when Utah joined the Union, it was required to pass a law against polygamy and this was applied retroactively. Also, when states began passing laws moving the drinking age from 18 to 21, most applied the law retroactively. I think Louisiana had a grandfather clause specifically within the statute, but I am just guessing.

Anyway, legally, I think this is still an open question. Only thing for sure is that there are going to be a lot of lawyers, billing a lot of hours over this! Yet another reason I am heading to law school!

What will happen to these couples if same-sex marriage is banned in the future? Will they continue to be married in the eyes of the law? Will the ban be made retroactive? Is that even legally possible? If not, will there be a special class of same-sex couples who will be legally married, while others cannot?

The bottom line up front: No one knows for sure. No one can say with absolute certainty. Most likely, it will eventually end up on the US Supreme Court's doorstep for determination. I can just imagine the intense frustration that must cause for both sides of the aisle in contemplating the legal uncertainties of the future.

I will try to focus specifically on this question: "Can the ban be made retroactive - is that even legally possible?" For the purposes of argument, I assumed we were talking about a federal constitutional amendment banning gay marriage, rather than a state constitutional amendment.

In trying to answer that question, I started by trying to prove it would not be possible. That for those couples who legally marry between now and the time an amendment is passed, the legal effect of their marriage can not be undone retroactively. I looked for support in the text of the US Constitution concerning ex post facto laws, bills of attainder, and impairing contracts.

Article 1, Section 9, Clause 3 states "No Bill of Attainder or ex post facto Law shall be passed," and shortly thereafter Section 10 states: "No State shall... pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts"

An Ex Post Facto law is a law passed after the occurrence of an event or action which retrospectively changes the legal consequences of the event or action. A Bill of Attainder is a legislative act that singles out an individual or group for punishment without a trial. A law impairing the Obligation of Contracts would be a law that retroactively releases one party to a contract from their obligations under the contract. Section 9 made them prohibited for the federal government, and Section 10 made them prohibited for the states. Note that with regard to impairing the obligation of contracts, it is prohibited by the states but not by the federal government. Before we look at how those clauses might prevent a constitutional amendment from being applied retroactively, however, we need an example of what such a constitutional amendment might look like. Since we do not know whether or not such an amendment will ever be passed, and exactly what it will say, the following example is just as arbitrary as any other:

"Marriage in the United States shall consist only of the union of a man and a woman. Neither the United States nor any State shall recognize or grant to any unmarried person the legal rights or status of a spouse."

Such an amendment would be designed to first define what marriage is in the United States, then proceed to prohibit the federal government and the state governments from recognizing or giving legal rights or legal status to anyone who is "not married." Since you are only married if you are a man and a woman, gay and lesbian couples fall into the "not married" group.

Returning to the constitutional safeguards against retroactive laws, we'll need to look at them individually. Please remember that in the context of what follows, we are only talking about the issue of whether or not it is legally possible to make a Gay Marriage ban retroactive:

1. Ex Post Facto. Arguments in favor of declaring an amendment unconstitutional might try to draw support from the Ex Post Facto clause. It might be argued that since the amendment was passed after the marriages, it can not be retroactively applied to undo the legal rights granted to the marriages. Unfortunately, the US Constitution did not clearly define what an Ex Post Facto law was, and the US Supreme Court interpreted the "words and intent" of the Ex Post Fact clause as encompassing "[e]very law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed." (Calder v. Bull, 3 U.S. 386, decided 1798). I shepardized the case and as you can imagine, there is a long line of cases after Calder but a sampling indicated that they contemplated the use of the Ex Post Facto clause with regard to criminal laws, not civil laws. In Calder, the majority opinion stated that the proscription against ex post facto laws was derived from English common law well known to the Framers, and set out four categories of ex post facto criminal laws: "1st. Every law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action. 2d. Every law that aggravates a crime, or makes it greater than it was, when committed. 3d. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed. 4th. Every law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offence, in order to convict the offender." In the recent case Carmel v. Texas (529 U.S. 513, decided 2000), the Supreme Court acknowledged that it has repeatedly endorsed this understanding. So, ultimately, the problem with trying to declare an Anti-Gay marriage amendment unconstitutional on the grounds of the Ex Post Facto clause may run into the problem that historically, the Supreme Court has only interpreted it to prohibit criminal Ex Post Facto laws.

2. Bills of Attainder. Arguments in favor of declaring an amendment unconstitutional might try to draw support from this clause, which prohibits a legislature from singling out an individual or group for punishment without a trial. However, simliar to the way the Ex Post Facto clause operates, Bills of Attainder were designed to prevent the legislature from usurping the power of the courts to adjudicate criminal trials, not civil matters. Someone might try to argue that gays and lesbians are being "punished" by an amendment but that is not an accurate use of the term punishment within the context of Bills of Attainder. The drafting of the clause probably borrowed heavily from what happened in England in the late 17th Century; Sir John Fenwick was charged with high treason, but could not be convicted without the testimony of two witnesses. Parliament passed a bill of attainder making the two-witness rule inapplicable, and Fenwick was forthwith convicted on the testimony of only one witness. So we see that the history behind the Bill of Attainder clause has its roots in preventing the legislature from usurping judicial power and affecting the outcomes of criminal matters. According to U.S. v. Brown (381 U.S. 437, decided 1965), it was intended as a "a general safeguard against legislative exercise of the judicial function or more simply - trial by legislature." And as much as I may personally dislike the opinions of the current Chief Justice of the Supreme Court, "These clauses of the Constitution are not of the broad, general nature of the Due Process Clause, but refer to rather precise legal terms which had a meaning under English law at the time the Constitution was adopted. A bill of attainder was a legislative act that singled out one or more persons and imposed punishment on them, without benefit of trial. Such actions were regarded as odious by the framers of the Constitution because it was the traditional role of a court, judging an individual case, to impose punishment." (William H. Rehnquist, in The Supreme Court, page 166).

3. Impairing the obligation of contracts. When two people marry, is commonly held that the marriage is in and of itself a contract. Arguments in favor of declaring an amendment unconstitutional might try to draw support from this clause, on the grounds that the amendment would render the obligation of contracts between two married persons (gay or lesbian) moot and unenforceable. There are at least two problems with this, however. First, the Amendment in question above would not prohibit gay and lesbian couples from being bound to each other by whatever contracts they have with each other. The text of the marriage amendment only prohibits the federal and state governments from recognizing or granting to any "unmarried person" the legal rights or status of a spouse. So while the law would prevent a State Court from allowing a gay or lesbian couple to sue their employer for denial of spousal benefits, it would not prevent a gay or lesbian individual from suing their partner over any obligations they might owe each other from entering into a contract. Secondly, because the Obligation of Contracts clause under Article 1 only binds the state governments and not the federal government, it would really only apply to state constitutional amendments, not federal constitutional amendments. Since we are talking about a federal constitutional amendment here, it probably renders the Obligation of Contracts argument moot.

Coming full circle, it is therefore my opinion that it is possible that a constitutional amendment could be passed, effectively defeating gay marriage rights with regard to the benefits of marriage, that could operate to retroactively take away the benefits being granted to gays and lesbians being married in the here and now, unless someone can think of a way to work with other parts of the Constitution. My understanding of the original poster's question went to the heart of this issue, and my answer is "unknown." None of what I've said should be construed as proving the issue in either direction - my overall point is that based on what I can gather from the US Constitution and its interpretation, I believe it wouldn't necessarily preclude a constitutional amendment cleverly designed to undo gay and lesbian spousal rights and benefits. Of course, I could be wrong. And ultimately, it will be up the US Supreme Court to carefully parse through and decide this issue.

At this point, before clicking the "submit post" button, I feel like I should add my own two cents on the anti-marriage amendment issue (disclaimer: what follows is purely my own opinion). I am against any such amendment. Many different people see this issue on different levels and in different terms, and I can respect the opinion of people who feel that gay marriages should not be considered marriages, but I see this as fundamentally a discrimination issue. If we as a nation go forward with and ratify an amendment like the one in question, we will be doing something we have never done before: actively enshrining discrimination into our Constitution. I'm sure there are others who see it differently, but that is what I believe.

(edited: spelling and grammar)

I'm not an expert, but I do watch The Practice From my perspective their marriage license can be easily revoked just as a military soldier's stripes. Then again, if you take away the marriage license of gays, will the same be done to adulterers and other nefarious people? I would imagine that they could still give each other property through wills and that kind of thing, but if one of them is in the hospital?

What i found the most interesting in this certain case is the fact that the lesbian judge on the Mass. Supreme Court actually voted against the allowance of same-sex marriages. Her argument was that the court did not have the power to go against the will of the American people who are 2/3 against same-sex marriages. Some of the other judges were just so left-wing they were unable to see this.

I am against same-sex marriages but being realistic...eventually they will be legal. Its inevitable with organizations like the ACLU and stuff who ram this down our throats as a civil rights issue. (although i dun believe it is) I think that we are heading down of path of immorality. This has nothing to do with a religious viewpoint but it has to do with a humanitarian and ethical viewpoint. So many doors are open with a decision that allows same-sex marriages even if people are made to believe there wont be.

I assume you're talking about Justice Margaret Marshall. She actually voted with and penned the decision for the majority, writing that "barring an individual from the protections, benefits and obligations of civil marriage solely because that person would marry a person of the same sex violates the Massachusetts constitution."


If a Court finds a law unconstitutional, it is irrelevant even if 99% of the population desires otherwise. It is up to the population on the whole to consider whether or not they want to ratify a constitutional amendment to change this.

Despite the fact that Azure has touched on this, it bares repeating. Left or Right-wing is irrelevant. The judges have NO responsibility to popular opinion whatsoever. Their obligations lay in the law, and their deliberation and interpretation thereof. The fact that you ignore this demonstrates that you don't understand how the American legal system is constituted.

Those judges are specifically obligated to ignore what it is you say they were too blind to see.

As for removing marriage licenses, which is after the all the topic of discussion; I can't imagine how the government could get away with taht without a massive legal challenge. A license can be refused if it violates existing law, but if it is established legitimately then a change of that law can't effect the nature of that license.

A parallel would be driver's licenses. If the legal driving age was raised to 19 in a given state, you could not take away the licenses that had already been issued to people under that age, as far as I can tell.

Perhaps the government would allow the few people who did get married to keep that status, but not allow it for anyone else after a certain date as decreed by court or legislative law. You are right though, this sets up an interesting legal fight that would undermine the efforts of those against same-sex marriages. Then again, it's common for people to lose their licenses everyday, so I don't see how this would be any different. Yes a person could sue, but we have people today who try and appeal to get their licenses back for felony convictions.

lederuvdapsc is correct in stating that its only a matter of time before gays are allowed to marry. Perhaps the only way for the anti-same sex marraige group to win this debate is to base it on secular, philosophical grounds, rather than theological ones. Basing it on religous arguments is becoming a rather outdated method of attacking same sex marriage in my humble opinion.

Maybe i am crazy or something...but my understanding is that the people of this country are the ultimate authority. Arent WE supposed to be the ones with the power? We have checks and balances and we have the constitution to make sure that they cannot do something that is against the will of the people. The first and most basic principle of our Constitution is the belief that the final power in government rests with the people. That is why the very first words of the Preamble is:



The Supreme Court is in place to interpret the laws that we have given to them. If they interpret it falsely then there is a problem. With the logic you have given, the court has the ability to do whatever it wants because what the people want doesnt matter. It doesnt work that way. Their obligations lay in the people and then to the law that has been given to them by the people...thats how the American legal system works.

I think some confusion has developed here between the role of the judicial system under our constitution and the power "the People" have over government and the constitution itself. To reiterate, judges are supposed to be prohibited from being influenced or swayed by popular public opinion when deciding legal issues. Their job is to interpret and apply the law, based on their best attempts to ascertain exactly what the law is, without pandering to public opinion. Judges determine the law by consulting the Federal and State constitutions, acts of the federal and state legislatures, and/or federal and state case law (prior precedent). Sometimes Judges make mistakes determining exactly what the law "is," and we have appeals that go up to higher courts to sort out those details. The Supreme Court is the highest court in the land, however, and when the Supreme Court rules on a constitutional issue, it does not matter if popular public opinion is opposed to the ruling. If "the people" en masse do not like the ruling and are so inclined, they can petition their congressional representatives to introduce a bill proposing an amendment to the US Constitution, and if it passes the hurdles laid out in Article V then it becomes part of the Constitution and actually changes the very law itself that the Supreme Court based its ruling on. So, ultimately, the people (on the whole, as a mass) have the power to make changes to the Constitution that supersede the power of the Supreme Court (as they should), but its important to note that they must do so by the procedures laid out in Article V, and at no point in the process can the People directly tell the Supreme Court how to rule. This is no accident; it was incorporated into our legal system to prevent the problem of popular majority opinion influencing or swaying Courts to rule in a manner unsupported by the law. Constitutional amendments take time and effort to propose, debate, pass in the legislatures, and be ratified by the States, in order to try and ensure that a majority of "the People" have thought the issue through carefully. It may not be perfect, but it really is a beautiful system when you study it on the whole.

Thats sort of the point i was trying to make. Ultimatejoe made it seem to me that the people's opinion was irrelevant which i cannot accept. The Supreme Court should not rely or be swayed by public opinion but they also cannot ignore it because that is undemocratic.

In answer to the debate question, I believe that what they're trying to do in Massachusetts is -- by Constitutional amendment not expected to happen before 2006 -- to convert those marriages into "civil unions" and give them all the same features as a marriage, but not calling it marriage. Sort-of a "separate but equal" status, which will eventually get its butt kicked in the Supreme Court.

Edited for clarity.

What will happen to these couples if same-sex marriage is banned in the future?

If the ban comes in the form of legislation or executive order then we'll have ourselves a nice juicy Supreme Court case. In fact I think we are headed that way anyway, because if the homosexual marriages stand in Mass. then we are going to have a full faith and credit case before the supreme court.

The only possible way to avoid the events set in motion is to pass a constitutional ammendment banning homosexual unions of any kind. Given the incredible difficulty of passing any ammendment and the fact that not even close to 2/3rds of the country supports that idea -- it will never happen.

So, my prediction is that the next few years will be touch and go, but within 5 years homosexual marriage will be 100% legal in the United States. I believe that it will stand either in Mass. or CA (or both) and then we'll have a Supreme Court case which forces it on the remainder of the country.

I've been reading up on the Anti-Miscegenation laws which I believe pertinent to this debate. First, a little history: Miscegenation - encyclopedia. Second, I think the outcome of same-sexed marriages within the courts will be similar to Loving v. Virgina and here is the Supreme Court decision itself. In this decision is a very interesting point:

My feeling is that unless a Consitutional Amendment is passed, then the US Supreme Court will eventually rule similarly. This means the Defense of Marriage Act will also be overturned. Now, if a Constitutional Amendment is passed, then there will again be a series of court cases relating to the status of the now unconstituional same-sex marriages. Coming into this debate, I felt pretty sure that such an amendment would face serious constitutional challenges. After reading Azure-Citizen's very informative analysis of possible challenges to such an amendment, I'm not so sure. I would add that the "Due Process Clause" of the 14th Amendment may also pose an interesting challenge.

They will still be married until they become unmarried/divorced/widowed.

If same sex marriage is banned in the future, those same sex marriages that are made before the ban takes place cannot become null and void because the ex post facto part of the Constitution would supercede any law of Massachusetts declaring them null and void.

How would you address the specific problem that the Supreme Court has interpreted the Ex Post Facto clause of the Constitution to pertain to criminal laws, while a cleverly worded amendment would simplify invalidate the present-day value of a gay marriage in terms of civil law?

First, it would be one of those rare instances where tax-paying citizens are punished by civil law for--and I can't believe this--loving and committing to each other. Not merely restricting, but relinquishing marriage from citizens. Would this apply? I doubt. However, for those who will be deemed married, what would occur if the FMA passes?

I think they will have their marriages revoked, looking at it from a percentage perspective. It is easier to revoke the rights of a small percentage than it is to have companies and government alter their processes to handle this small percentage. I find this depressing, yet entirely plausible. I often have to wonder about how free we really are--other countries are passing us up in terms of civil liberties.

These couples will rightly fight to keep their marriages intact. I even doubt they'd be satisfied with a civil union. Separate but equal has never worked. If the slippery slope argument is such a problem, the solution is simple: alter the wording to "marriage is to be between two consentual human adults." Case closed--no slippery slope to be found. If a brother and sister want to marry, so be it, specifically because the percentage of brother-sister marriages would probably be so low as to be inconsequential.

But I'm off-course and off-topic. If gay couples have their marriages revoked, lawsuits will follow quickly thereafter. Eventually and inevitably, one of two things will occur: gay marriage will be legal and recognized in our nation; or gay marriage will be outlawed forever. I hope for the former; I fear the latter will happen.

The FMA, incidentally, revokes the rights of future generations from altering the amendment. Perhaps that is another topic?

That would really be outrageous and I'm not sure how they think they could make that work. Do you have a cite to that? I wasn't able to find it.

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Logophage, I think you made some good points in your post concerning miscengenation laws and how that might impact on challenges to laws banning same-sex marriages. As you said, we will probably see a series of court cases contesting things like the Defense of Marriage Act and similar laws. If I may play devil's advocate for a moment and address two likely counterpoints that may be brought up:

1. The State miscengenation laws involved made it a felony (possible prison time) to marry outside a person's race, which in turn made it easier for the Supreme Court to step in and apply the 14th Amendment to strike down the state laws on the basis that they deprived their citizens of liberty without due process and equal protection. The current laws at issue are tailored a bit more cleverly, as they do not make same-sex marriages a felony offense but instead define marriage as something which can not apply to same-sex couples, and in turn those couples are left without rights when it comes to trying to get the benefits of marriage. This is not dispositive of the issue but it would make it harder to press the case.

2. If we're talking about a State constitutional amendment, or a State law passed by its legislature, the Court could apply the 14th Amendment to strike down the law, but how would you be able to apply the 14th Amendment to a federal law, or worse yet, a federal constitutional amendment, like the one I discussed previously?

This is off-topic but briefly returning to Loving v. Virginia, I think it is a great case for underscoring the incredible bigotry involved in those laws. You probably read how the trial judge wrote:

Here is an idea that opponents of gay marriage haven't tried.....
Put a clause in the constitution that states if the State's Marriage Amendment is voided by the Federal courts that it automatically resends the States ratification of the U.S constitution.

My apologies. I should have provided that link before. However, I must admit that nowhere else have I read that the FMA would prevent future generations from reversing the decision. Perhaps this is untrue--all I've read of the FMA is that it defines marriage as between a man and a woman. Perhaps the proposed amendment was altered to exclude this restriction.

http://www.dailyrecord.com/news/election20...ions042904.html

This is a good point; however, I'm not sure that the US Supreme Court would "buy" the clever wording assuming they use Loving v. Virginia as precedent. Even if gay marriage were not "criminalized" but rather "de-civilized", I still think the "Due Process" clause of the 14th Amendment applies. I believe these folks are intelligent enough to see through the semantic games.


Right, I'm wondering this as well. What happens when an Amendment, at least with respect to modern constitutional interpretation, is obviously in conflict with other parts of the Constitution? Also, if marriage is defined as being between a "man and a woman" is it possible that one member of a gay male couple, for example, could just define himself as being a "woman" for the marriage certificate? I don't see where that's unconstitutional.


It always amazes me: the intricate mental gymnastics people go through to rationalize their beliefs. I suppose the trial judge also believed that all humans originated from Adam and Eve; if so, his anti-miscegenation justification would stand in obvious conflict.


Hmm. Since it is the US Congress who adds new States into the Union, I assume it would take an act of Congress to remove them (though I cannot find any references to this). Also, even if this were possible in the scenario you've given, I find it highly unlikely that any State would accept this condition; rather, I find it highly unlikely that such an Amendment would get passed.

The opponents of gay marriage could refine the language to define it in biological terms, or even define it with genetics.

Some people are against gay marriage because of non-religious issues:
Biology indicates that it takes at least one male and one female to reproduce.

Here is an interesting read on the FMA and gay marriage. -> http://www.family.org/cforum/judicial_tyra...qs.cfm?pt=fma#1

Some more....
http://www.family.org/cforum/fnif/news/a0032319.cfm


It is an interesting read on the opposite side of the coin.

Where is it written that marriage benefits are offered to couples with a stipulation that they reproduce? Where does it say that heterosexual people must reproduce, or even that they must be ABLE to reproduce in order to receive marriage benefits? Nowhere. That's why this argument holds no weight. (If you object based on their inability to reproduce). We've been through this before. Sterile couples are allowed marriage benefits, this is no different than allowing gays to marry. Both can and do adopt children. These children need the financial and legal protections that marriage provides. Biology has nothing to do with it.

FargoUT, thanks for the link and the update. For anyone who is interested, here is a link to the current proposed amendment.


It supersedes the previous constitutional provisions and amendments. For example, the 17th Amendment directly conflicted with and changed the provisions of Article I, Section 3 with regard to electing US Senators. The 26th Amendment changed the voting age originally specified in Section 2 of the 14th Amendment. And the 21st Amendment simply outright repealed the 18th Amendment. That which comes later, overrules that which came earlier.

A federal constitutional amendment defining marriage as being only between a man and a woman would become the supreme law of the land. The only thing that could overturn that would be a later constitutional amendment repealing the marriage amendment.


The clerk responsible for issuing the license probably wouldn't allow it. Even if they did, it would be a short lived victory. What happens if the newly married couple is later denied health benefits by one of the spouse's employer? They would have no rights in the courts.

All of this underscores what an extreme step a federal marriage amendment would be. I think it is fair to add, however, that the odds of such an amendment actually being ratified are unlikely.

[QUOTE=logophage,June 2 2004, 5:30 PM]

[QUOTE] Also, if marriage is defined as being between a "man and a woman" is it possible that one member of a gay male couple, for example, could just define himself as being a "woman" for the marriage certificate? I don't see where that's unconstitutional. [/QUOTE]

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In my opinion, one key problem in defining marriage as being between only one man and one woman is the fact that there is NO DEFINITION of what a man is, what a woman is, or whether a person's sex may be changed. These may seem like questions with common sense answers, but in fact, the complexity is astounding.

What is a male or what is a female? Sex, per se, is usually determined by a quick inspection of the genitals at the time of birth. For the vast majority of the population that determination in itself is sufficient. Problems arise, however, when children are born with physical abnormalities such as ambiguous genitalia or other intersex conditions. How do we decide then? Some say chromosomes... the problem is that approximately 1 in 500 persons born has chromosomes that are something other than XX or XY. These include XXY, XYY, XO and a multitude of other possibilities. If it's determined that chromosomal makeup determines sex, then there is potential for over 1/2 million Americans to be classified as "other." Whom should they be allowed to marry? Chromosomal testing was once used by the IOC (olympic committee) to determine sex for competition, but was quickly abandoned because the issue was sooo complex. What about children with ambiguous genitalia? Who determines how they'll be classified and raised? What if an incorrect diagnosis is made and the child grows up self identifying a a member of the "opposite" sex? One thing that many people don't realize is that sex change surgery was not designed for transsexuals, but rather to "correct" genital problems of newborns. Finally, should it be posible to change one's sex through surgery or other permanent means? Statutes and court opinions vary greatly from state to state, some say yes AFTER irreversible surgery, others saying absolutely not because a birth certificate is a historical document, and others require chromosomal testing. If we choose to define marriage, we MUST have a universal standard.

I apologize for rambling, but this issue is of extreme importance for me, because I was one of those children born intersexed. Based on archaic knowledge, I was diagnosed as suffering fro hypospadias and micropenis at birth, and at the recommendation of doctors, was raised as a boy. Anytime I deviated (even slightly) from a masculine path, I was physically beat into submission and forced to comply with societal norms. Forced hormone treatment was used to reinforce the ill conceived diagnosis, and my parents were told that if I were allowed to follow MY feelings, it would be psychologically damaging and socially embarrassing. It wasn't until after I left home that I learned the truth. Based on modern medical diagnostics, it was determined that the decision at the time of birth was erroneous, and that I was, in accordance with medical standards, actually female. Chromosomal testing concluded that I had a XX chromosomal karotype. I was shocked to find that I had ovaries and a uterus, and that their functioning and development had simply been altered by the male hormones forced upon me. In essence, I was robbed of my childhood, and my life to that point had been one big lie. Thanks to medical technology I've been able to take back most of my life, having my name and legal sex changed and physical abnormalities corrected, and I now lead what I believe to be a normal life. As a woman, wife, and MOTHER. Despite these victories, however, one problem persists... Although my driver's license identifies me as female, my birth state refuses to change my birth certificate to reflect my true sex even with medical evidence and a court order from out of state. In this case, am I still legally male because of my birth certificate? Is my marriage to my husband actually void because both of our birth certificates identify us as male? Is it ethical for the state to deny me my right to marry because of a medical mistake? If getting pregnant and giving birth to a healthy child isn't enough "evidence" to prove myself female, where do we draw the line? The lunacy never ends!

In keeping with the original thread topic, I believe that IF a constitutionally sound ban on same sex marriage were to be implemented, the existing marriages would have to be honored. Civil marriage is a contract between two consenting individuals, and to summarily invalidate existing legal and binding contracts would set a dangerous precedent in civil law.

RedAnt, thank you for taking the time to share your personal perspective on the gender identification issue. Your insights make an excellent case for pointing out how human beings do not automatically fall into nice, neat categories labeled M or F. It is easy for non-affected people to overlook this (myself included), or be resistant to changing the misconception that everyone is automatically born one way or the other.

Unfortunately, with the current status of the law and our bureacratic government systems, it seems to be uphill legal battle for people who do not have a clear XX or XY genotype/phenotype. It is too bad that those who arbitrarily set policy haven't had the chance to walk a mile in your shoes and see what it is like.

I also thank you, RedAnt. The issue of ambiguous gender is tremendously important to this debate. Having recently read Middlesex by Jeffrey Eugenides -- which is an excellent book (the main character is a hermaphrodite) -- I have had cause to think about same-sex marriage as it pertains to gender identity, gender preference as well as ambiguous genitalia. I don't believe, as some have posted, that defining oneself as female having previously been defined as male is a clear-cut issue for the clerk issuing the marriage license or for the insurance company granting/denying benefits. Gender like most things is not a black or white, left or right, up or down, male or female issue.

I also find it bizarre that people have proposed that reproduction or even the potential for reproduction be the litmus for marriage. If that were the case, then you would eliminate a large number of accepted marriages today, such as those involving post-menopausal women, infertile men & women or medically unsafe pregnancy.

But, getting back on topic....

Not only do I agree with you, RedAnt, but I believe that it is inevitable that same-sex marriage will be legal even if an Amendment is passed because of the ambigous gender issues you've outlined.

Ok lets try a new type of argument here and see how it works:

My man, the Greak Philosopher Socrates, taught that there were 4 types of an argument: There was an argument from Emotion (I want that car), the lowest form of all arguments. In the middle were the arguments of Traditon(i have always had that car) and Authority(the government says i should have the car). Finally there is the argument from Reason (The car's purpose is to be mine), the highest form of all arguments.

Now, the argument is that not allowing two people of the same sex to marry is discrimination and a violation of equal protection. I would like to add that this is untrue because every american, male or female, are allowed to marry whomever they want of the opposite sex...that is equal...because every person has that same right. But then the argument is..."but they cannot marry the person they love." AHA! Please ladies and gentlemen tell me which of the 4 arguments Socrates taught is tied with that argument? The answer is emotion...its an argument based on personal feeling....not that of reason. "Love" is not a requisite for marriage in the eyes of the state so that argument is completely rebuffed.

Lets look at an argument based on reason now. Will someone please explain what the underlying, ultimate purpose of the male and female sex organs are? The very essence as to why we have them and why they are so unique to each gender. Dont worry, i shall answer it. The ultimate purpose of our sex organs is for procreation. No matter what anyone says...that is its purpose... that is the indispensible function of the organs. You may cry, hey its for personal pleasure or nobody honestly cares about that...but it still does not take that "reason" away. Marriage should be between a man and a woman. This is because it is only a man and a woman together who can fulfill the ultimate purpose.

Marriage is an institution...argument from tradition....the church says homosexual marriage is wrong...argument from tradition....homosexuals should be allowed to marry eachother because they are in love...argument from emotion...the male and female sex organs' underlying purpose is to procreate...argument from reason.

I did my best with this argument. I think it could work...just need some feedback i guess. ( i am really presenting this to see if it is an effective debate tool for my debate team arguments next year)

But back on topic, if homosexuals marriages are banned, there is no doubt that all unions will be broken. An amendment is an amendment...something that should be followed just like the 1st, 2nd 3rd...exc..

Well, there are a couple of problems with your argument. I will try and state them as plainly as I can.

1. While you are correct, I would say, that the 'purpose' of sexual organs is reproduction, you haven't tied that to marriage - you haven't given us a compelling reason why the purpose of marriage is reproduction. And were you to do so, I would counter that you are arguing from tradition!

2. Further to the first point, did you notice that in all your examples of 'faulty' arguments (tradition, emotion, authority), you spoke specifically of marriage, but your argument from reason was based on reproductive organs? Your leap of faith was moving from this given, to an 'ergo,' men and women only should marry.

Since many men and women now marry and choose not to have children, you can only argue from tradition that the purpose of marriage is reproduction. If you can't find a reasonable connection, then your entire example of the 'argument from reason' falls apart.

lederuvdapac: While the debate is about the implications of banning same-sex marriage via Amendment for those same-sex couples that have already been married, I think your position is sufficiently important to address in this forum. So, I have a few questions about your arguments:

1. What happens when two unmarried people of the opposite gender are not married but still have children? How does this fit within the married=procreation definition?

2. What happens when two people of opposite gender are married but one or both persons cannot procreate (due to, for example, a medical condition)?

3. What happens when two people of opposite gender are married but choose not to have children?

4. What happens when two women are married and one or both persons have children via artificial insemination?

5. What happens when two men are married and the couple uses a surrogate mother inseminated by one of those men?

6. What happens when gender is misdefined, such as what RedAnt cites in a previous post, and is married to someone of the "same" gender?

7. What happens when one or both people have ambiguous genders, such as hermaphrodites, XXY chromosomals or XO chromosomals?

8. What happens when one or both people have undergone operations to change their genitalia so that exomorphically they are of opposite gender?

Here is something funny from a friend I just got. It may be funny, but it tells a lot about the conservative argument in this matter.

Since I am still a newbie, I don't really know if this is appropriate here. If it is not, please edit this post to your liking.

If I may add to what QuarkHead is saying. you are arguing from natures standpoint on an issue that deals with society. If you continued that logic you would be able to justify the elimination of marriage. Naturally as a man I am design to disseminate my sperm to as many fertile women as possible. Monogamous marriages seem to counter directly against natures intent. Not only can I not spread to other women, but I have to beg from my wife.
You could also use that argument to justify sex with children. If sex's natural intent is procreation, then when a female hits an age where she can procreate than she is suitable to have sex. We are talking about 12 to 14 on average, I believe.
Lastly, homosexuality may be a natural way of population control. So the question is, do you really want to take the argument of reason, or rather nature, to it's highest levels??

First, re: "ill someone please explain what the underlying, ultimate purpose of the male and female sex organs are?"

I am going to assume that they are for sex. And yes, procreation. But, you ignore homosexual sex. For a gay person, the purpose of their reproductive organs is homosexual sex. Or mastubatory sex...so how you can link sex, marriage, penis, vagina, and procreation in the way that you do, and then imply that your way is somehow the right way is beyond me.



Ok...your entire argument seems to be a huge non-sequitur--none of it really follows. You argue, without real justification, that our sex organs exist for reproduction only. Do they? Like I said, there are other purposes and uses which may be just as valid (again, you never really proved your reasoning). Then you contend that because our sex organs are only for reproduction that we can ONLY marry the opposite sex, because that what marriage is--a fulfillment of the uh, "ultimate" purpose, or Prime Directive or...are we on Star Trek??? Why did you say that Lederuvdapac?

Anyway, you don't link the sex organs, "ultimate purpose", and marriage in any coherent way, except to tell us that they do, and marriage is a logical extension of the "ultimate purpose". The problem is, you have not ruled out the possibilities of other purposes. Or, the possibility that sex organs are not around only to pop out babies.

Also, if someone is truly homosexual, then why should they be forced to enter marriage with a woman (if they are a man) and fulfill the "ultimate purpose"? That seems like a privacy, free choice thing for me. And that is why I can't really support any of your claims.