10% of states now allow gay marriage

[SeattleUte]

Originally Posted by MikeWaters

Marriage is not a right, when defined as a licensed relationship from the state, with certain attached conditions and incentives.

Two consenting individuals vowing fidelity and partnership together, as long as they do not curtail the rights of others--in my book that's a right (Scalia might not agree).

Actually I would increase the number to more than two. I think if people want to get together and have polyamory, as long as they are adults and able to consent, that's their business.

About laws on interracial marriage--the argument here concerns the 14th amendment and "equal protection of the laws." People capable of being married, that is of age and consent, ought to have equal protection. And what is marriage? It's the union between a man and a woman--it's been that way for a long time. A gay "marriage" is actually a reframing and changing of definitions. Hence, an argument here that a ban on interracial marriage is a violation of the 14th amendment, whereas limiting marriage to man and woman is not a violation of the 14th amendment, as Tex has pointed out many times, every gay man has the opportunity to marry a woman should he wish.

So the question, as I see it, is whether the definition of marriage should be changed. And that is a legislative question, with the premise being what is good for the state, as that is what I see as the current reason for having marriage.

Now, what would be REALLY fun is having strict common-law marriage laws. Wouldn't it be hilarious if many gay couples found themselves "conscripted" by the state into marriage. "You've been together as a couple for 7 years, sorry folks, you're now married." That is going to be a bonanza for the lawyers.

The question isn't whether "marriage is a right." The question is whether being gay is the kind of attribute that would place gays in an automatically suspect classification subjecting laws that require or permit the public sector to discriminate against them to strict scrutiny. If the Supreme Court were ever to decide the answer to this question is yes, the odds are high that it would decide discrimiation against them in terms of freedom to marry is unconstitutional based at least on the Equal Protection Clause. Immutability is probably the primary factor determining suspect classification, but not always conclusive. For example, gender lies somewhere between suspect classification and rational basis test, the test applied to government's discriminatory treatment of non-suspect classifications. Even if being gay is like gender, it's still hard to imagine a ratinale for the court concluding denying freedom to marry was not unconstitutional.