Marriage
is left to the states under the Constitution and it should stay that way. The
fix for the same sex marriage problem is to apply standard doctrine on marriages to same sex
marriages. States should have to recognize as valid marriages performed in
other states even if those marriages could not be legally performed in their
own state. This leaves the definition of marriage to the states, and leaves
marriage law to legislatures where it belongs. It allows states who don't want
gay marriage to forbid it within their state, but allows gay people to go to
another state to get married. Since it is a decision that follows precedent,
Conservatives will grumble but not become enraged. Just like in the Defense of
Marriage Act case, Conservatives will find losing acceptable because they will
lose based on states' rights. Over time everybody will get used to the idea and
it will cease to be a big deal.
Ruling that the 14th Amendment
requires states to allow same sex marriage is ridiculous. There is no way the
14th Amendment says anything about same sex marriage. At the time it was
ratified, homosexual acts were illegal. Ruling in this fashion will create
stubborn resentment which will last for years, just like the Roe v Wade ruling
did. It will be based on what the justices want the law to be rather than what
the law is. And given the availability of a less intrusive solution of
requiring the recognition of marriages performed in other states, it's a completely
unnecessary abuse of power. Further, it will remove the predictability of what
the law is. The Constitution will become something with a meaning that can
radically change on any given day in the Supreme Court. It will move us
radically closer to the rule of men, not the rule of laws.
The 14th Amendment was passed
specifically to prevent segregation and anti-miscegenation laws. Using it for
same sex marriage is ridiculous. It does not apply. I realize it's tempting to
get everything you want from the Supremes without having to do the hard work of
winning state by state. But anything you win in the Supreme Court with no
consistent reason, is something you can lose the same way. The whole reason
liberals are so nervous every time a new Supreme Court Justice is appointed is
because Roe v Wade was based on nothing but what the court at the time wanted
the law to be. It could be easily reversed at any time and everyone knows it.
Big changes like this should be done legislatively. It takes longer, but it
gains wider acceptance and it lasts longer as a result. Gay marriage is winning
the argument politically. You don't need a shortcut.
When the 14th Amendment was adopted,
homosexual acts were illegal. To interpret the ratification of the 14th
Amendment as legalizing gay marriage is ridiculous. It was not the intent of
the people who ratified it. Religion has nothing to do with it. (I'm a
Congregationalist who goes to church once a year for Easter.) I'm in favor of
gay marriage. I am not in favor of the Supreme Court inventing new ways to
interpret the Constitution and its amendments that the original ratifiers would
find unbelievable. If the Supreme Court can bend the 14th Amendment to that extent,
then they can bend the entire Constitution in whatever direction they want with
no checks or balances. Since gay marriage is winning anyway, why do we need to
use the 14th Amendment in outlandish fashion when there are easier ways to get
there which will leave the Constitution with some meaning? Big changes like
this are what legislature are designed for.
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