For the record:

[judecorp]

The United States Supreme Court established in 1923 that the rights to marry and raise children were protected under the Due Process Clause of the Constitution. However, the legal system has been involved in marriage since the Lord Hardwick Act passed in 1753. This Act required a license for marriage (meaning that a couple who can not obtain a license may not legally marry), as well as a church ceremony. Many laws passed by states to regulate people's marriages have been struck down by the courts as unconstitutional. Loving v. Virginia, 1967, showed that laws forbidding individuals of different races from marrying violated the Constitution of the United States. Earlier, Griswold v. Connecticut (1965) overturned a law that made it difficult for married couples to receive information about birth control. Both of these state laws were struck down as infringements of individuals' rights to marriage and privacy within the marital relationship.

If restricting marriage to race was seen in 1967 as unconstitutional, how is restricting marriage to biological sex constitutional? (Let's leave the Defense of Marriage Act - 1996 - out of this for a minute, because that changes things.) To those people who have remarked to me this morning that no one is being forbidden marriage, they're just being forbidden the choice to marry who they want to, I ask this: if it was still against the law in some states to have an interracial marriage, would you be saying the same thing to a friend of yours in that circumstance? (Well, gee, Bob, the law doesn't say you can't get married, you just can't marry Jane because she's Caucasian. Suck it up!)

Barring same-sex marriage isn't a product of heterosexism, it's a product of sexism. Barring same-sex marriage says that a man can marry a woman, but I can't marry a woman - not because I'm queer, but because I'm a biological female. Discrimination on the basis of sex has also been marked unconstitutional in these United States. Just for the record.

Comments

yes but

[vorpalbla.livejournal.com]

I'm with you 100% on one having a right to marry a person of the same biological sex. BUT...

Given the abject failure of the institution of marriage, as evidenced by half of them ending in divorce, the domestic violence, the huge amount of money that goes into getting married or getting divorced, etc., etc., do you really want to expand it? Or would it be better to do away with marriage (as a legal function, at least)altogether?

I've always found it disturbing that while you are expected to trust someone when you are close enough to legally marry them, at the same time you expect them to seal the deal with a legal document. If I trust as friend, we don't seal an agreement with a contract, we shake hands on it and that's that. Getting legally married is like saying "I trust you, but really I don't trust you."

Re: yes but

[communista.livejournal.com]

Given the abject failure of the institution of marriage, as evidenced by half of them ending in divorce, the domestic violence, the huge amount of money that goes into getting married or getting divorced, etc., etc., do you really want to expand it?

It's still a right that every human being should have. Every day we walk into situations, knowing the possibility of failure. That's the same with marriage. Some people choose to be together for life without marriage, but a lot of people do so because there is no choice.

You've clearly got a strong opinion on marriages :) I personally think that just because something doesn't work for everyone, it shouldn't be done away with. There are also benefits to marriage such as insurance, buying homes, etc... Which can all be done independently, but again should be available as an option to any two human beings who wish to make that type of commitment.

Re: yes but

[vorpalbla.livejournal.com]

As long as marriage is a legally binding action, the government will be in the position of deciding who can marry whom. This will inevitably lead to its sanctioning some relationships but not others. Why, for instance, should it be allowed to discriminate against a threesome who would like to get married?

The parts about insurance and buying homes could be resolved in a variety of legal manners other than marriage. For instance, one could show evidence of having lived with the other person (as with domestic partner benefits) for x amount of time.

I'm not saying that no one should ever get married--by all means, if you feel like it, go with your significant other to a priest, minister, rabbi, humanist chaplain, or even Mistress Cleo if you swing that way, and say "We want to get married." Have a big party with champagne and cake. All of this could be done without having to get a license from the government that grants you permission.

Re: yes but

[etherial.livejournal.com]

I would be all for the legal disbanding of marriage except for one thing.
You and your spouse have legal confidentiality.
Just like your lawyer, your priest, and your doctor, your spouse cannot be forced to testify against you (though unlike all of them, they may do so if they choose).

That is a right that I want to see protected.

Re: yes but

[judecorp.livejournal.com]

Oooh, that's a good privilege. Yes.

In regards to marriage (or lack thereof)

[communista.livejournal.com]

I don't think anything should be taken away from anyone. At the same time, nothing should be kept from anyone, either.

There are pros and cons to marriage, as there are with simply staying in a committed relationship. It would be easier to allow marriages between two people regardless of gender, than it would to feasibly do away with marriage.

Re: yes but

[judecorp.livejournal.com]

I know we've had this conversation before, and personally, I completely agree with you. I don't really agree with marriage, it doesn't really sit well with me. (And this is not /since/ I was married, but rather something I tried to squelch in order /to/ get married...) I wouldn't mind seeing it entirely disbanded in favor of something else, but that's not going to happen.

And since it's not going to happen, and since not everyone feels the way I do, I think the option should be open to everyone regardless of condition.

[murnkay.livejournal.com]

It is insane, and in some places legal now. As well as Canada.

Things change but not fast enough to keep up with reality. I love the backhanded putdowns too. Those are always my favotire. "No I have no problems with same-sex relationships ... Just so long as they don't happen."

Those are the poeple who need to be hurt, the ones with the subtle fear and hatred, not the loud vocal ones. The loud vocal ones everyone knows are fools.

[judecorp.livejournal.com]

"I don't mind what they do behind closed doors in their bedrooms, but do they have to flaunt it in public?"

[livinginfits.livejournal.com]

i think it's all silly anyway. there are two types of marriage. the first is making a lifelong commitment to another person... declaring that they are your life mate. the second is merely a tax filing status.

you're arguing for the tax filing status? anyone can get married, the government can't deny you that. they've proved, though, that they can make up rules as they please to suit any old needs. this means they can choose not to grant you your tax exemption. frankly, i don't believe in marriage in the eyes of the law.

did this ramblingness go anywhere?

[mayna.livejournal.com]

It's more than just a tax filing status... there is right of survivorship, you count as a RELATIVE to the person (where otherwise you're a "friend"), and things like that. If these walls could talk 2 had a good segment on the problems of being a gay couple and NOT being allowed to legally marry.

[judecorp.livejournal.com]

I think that if some people can get government benefits by getting a marriage license, then all people should be able to get those licenses and be eligible for those benefits.

Whether or not I, personally, believe in marriage (which I don't), in goverment benefits (which I do), or in lifelong commitments (which I'm not sure about), none of that matters.

[juliann.livejournal.com]

Legally speaking the real issue is the definition of marriage. Is it defined, or was it defined at the time of the writing of the constitution, as the union of two people or the union of a man and a woman? If the latter then only the union of a man and a woman is constitutionally protected. And I believe you will find that this is the case at the federal level even if some states have changed their own local definitions.

Argue the rights and wrongs of that all you wish, but on legal grounds I don't think it's a valid LEGAL argument that same-sex unions are constitutionally protected or ever have been or will be without a LEGAL change in the LEGAL definition of marriage.

Again I am not touching on the *ethical* or *moral* implications, but when you start arguing that you should have a right under law I really have to point out that you don't.

[juliann.livejournal.com]

I should also point out that the legal system (that is the British Legal system which affected and was the foundation of the US legal system) has been involved in the regulation of marriages since /at least/ the 1650s. I haven't researched it before then but I know well the changes made under the Lord Protector and so it's at least 100 years prior to your Act as stated.

It could be argued that since there is no official religion in the US then marriage has only EVER been governed by the legal system since the founding of that country. Ergo it has ALWAYS been a legal question not a religious, ethical or moral one in your country.

[judecorp.livejournal.com]

The Constitution didn't state anything at all about the sexes of the people being married UNTIL 1996. This is when President Clinton signed (after Congress passed) the Defense of Marriage Act. This Act defined "marriage" for Federal Purposes as a union between one man and one woman.

So your answer is no, then yes.

[jost.livejournal.com]

Technically, the Constitution does not mention marriage at all. The concept of marriage being protected (Very important distinction from being a Guarantee or a Right) is an implied power derived from judicial review as being covered under the due process clause Jude mentioned.

[mayna.livejournal.com]

*shrug* I don't see why they think it's such a big deal. If it's against peoples' religions, so what? There's supposed to be a separation of church & state. So make it legal under federal law, and whether Joe Bob thinks that it's "real" in his religion is his own perogative. It doesn't hurt anybody and has the potential to garner more tax dollars with the marriage penalty.

[thatpatti.livejournal.com]

in this case, i agree with you entirely. :)

[judecorp.livejournal.com]

has the potential to garner more tax dollars with the marriage penalty.

Definitely. Although depending on what the tax laws are at the time, sometimes there's a penalty, sometimes there's not. Right now, though, absolutely. MORE MONEY.

ooo a debate

[fagtastic.livejournal.com]

i think everyone should have the right to marry. even if we choose not to use this right, we should be intitled to it just like anyone else.

im just as human as the next person. as are you, so we should be given this right.

Re: ooo a debate

[judecorp.livejournal.com]

Welcome to the fray. The whole situation just leaves me feeling very sad.

It's Transgender Rememberance Day. <3

[dch4.livejournal.com]

Please write down the date.

I agree with you.

[judecorp.livejournal.com]

OH MY GOODNESS I AM GOING TO BRONZE THIS JOURNAL ENTRY FOR POSTERITY.

Hey, how are you, hon?

[phatsin8.livejournal.com]

My senior year of high school I made same sex marriages my cause of choice. I wrote papers about the injustice of gay people not being given the same rights as other heterosexual couples and I co-wrote a bill to allow same-sex marriages in my government classes mock congress. What was great, to me, was that my government class passed the bill however, our teacher (acting as president) vetoed it, which pissed off most of the people in the class. Basically, I think that people are becoming more open minded towards the subject, but until this new breed of people are able to find their ways to the benches and institutions that govern this great nation of ours that change is going to continue to be halted. It sucks, but just keep in mind that the day IS coming. I hold onto that belief.

[judecorp.livejournal.com]

but until this new breed of people are able to find their ways to the benches and institutions that govern this great nation of ours that change is going to continue to be halted. It sucks, but just keep in mind that the day IS coming. I hold onto that belief.

I sure do hope you're right. It's nice to see that idealism is not dead. Sometimes I worry that I'm the only one. :)