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Hot Topic (3/6): Same-Sex Marriage - Should Gays Have the Right to Marry?

Posted by on Mar. 6, 2009 at 12:53 AM
  • 232 Replies
Thursday, Mar. 05, 2009

Gay Marriage: Is California's Supreme Court Shifting?


The prospects of same-sex marriage in California grew dimmer Thursday, when two Supreme Court justices who helped create the right for gays to marry in last year's historic decision expressed deep reservations about attempts to strike down a statewide referendum passed last fall to ban the practice. "You would have us choose between these two rights: the inalienable right to marry and the right of the people to change their constitution," said Justice Joyce L. Kennard, one of those two key judges. "You ask us to willy-nilly disregard the right of the people to change the constitution of the state of California. But all political power is inherent in the people of California." (Read "Activists Rethink Their Gay-Marriage Tactics.")

The justices created the right to marry same-sex partners in California last year in a sweeping 4-3 decision. But in November, Californians went to the polls to amend the constitution to prohibit gay marriage. The amendment passed with 52% of the vote, but protests spread throughout the state in the days immediately after the vote. Several groups sued, arguing that stripping away the right to marriage amounted to such a serious change to the constitution that it should require more than a simple majority vote. (Read "A Brief History of Gay Marriage.")

Same-sex-marriage supporters rally on the eve of a state Supreme Court hearing on Proposition 8 on March 4, 2009, in Los Angeles

Chief Justice Ronald George, the Republican justice who authored last year's opinion, appeared to agree that the barrier to constitutional amendments is far too low in California, noting that the Golden State has seen fit to amend its constitution no fewer than 500 times since 1911, while the U.S. Constitution has survived more than 200 years with just 27 amendments. But like Kennard, who had also voted with the majority to establish the right to gay marriage last year, George seemed to suggest Thursday that until the people of California raise the barrier for amendments, the court has little power to overturn their decisions. (Read "From Gay Marriage's Ground Zero.")

That line of thinking was exactly what Kenneth Starr, the former Whitewater independent counsel who is now dean of Pepperdine Law School, had in mind when it was his turn to argue against overturning Prop. 8. Starr is serving as counsel to supporters of traditional marriage who received permission to argue on the initiative's behalf when it became clear that Attorney General Jerry Brown would most likely support efforts to strike down Prop. 8. "The issue before this iconic court has to do with the sovereignty of the people of California," Starr said. "We have heard a lot about individual rights and suspect classification ... But the Attorney General's office points to one inalienable right, the right to marry. But the people, too, have an inalienable right to change their constitution."

When questioned, Starr conceded that his view of the state constitution would permit a simple majority of the voters to repeal any right enshrined in the state constitution, including the right to free speech or a prohibition against racial discrimination. "While it is unthinkable," he said, "... the people do have the raw power" to make whatever changes they desire, so long as they do not alter the basic structure of government. Changes that violate the U.S. Constitution, he added, would of course be struck down on federal grounds, but so far no federal appellate court has ruled that the U.S. constitution protects gay marriage.

The court can take up to 90 more days to issue its ruling, and questions during oral arguments do not always accurately reflect the thinking of individual justices. But Thursday's three-hour session did indicate that the primary argument advanced against Prop. 8 faces big hurdles in the court. Even the lawyers who are asking the court to declare Prop. 8 invalid because it is more like a constitutional revision — which would require approval by lawmakers as well as by voters — conceded, when asked by the court, that there is essentially no precedent in the court's history that directly supports their position. "We have a pretty well established body of law pertaining to what is and what is not a revision, and those decisions do not give strong support to your position that the people couldn't do when they did when they invalidated or disagreed with one aspect of the marriage decision," Kennard said. "Our past decisional law doesn't support the argument that the people couldn't do what they did."

But a second argument, advanced by Attorney General Brown, is that the most important rights found in the constitution are inalienable and not subject to changes by a simple vote of the majority, because they are too important. That argument, too, seemed to suffer under scrutiny from some justices, who asked how the court was supposed to figure out how to draw the line between rights that can't be taken away and those that are subject to amendment.

The hearings did offer hope for the 18,000 or so same-sex couples who have already married. Starr argued that the language in Prop. 8 means that no gay marriages, even those performed when the practice was legal, can be recognized by state authorities. That argument brought a bristling reply from several justices, who said such a ruling would violate basic notions of fairness. Still, such opposition doesn't guarantee that the court won't strike down the existing marriages. Given that three justices voted against gay marriage in the first place, it may be that all Starr needs to win on that point is to convince a single justice that Prop. 8 should be applied retroactively.

by on Mar. 6, 2009 at 12:53 AM
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by on Mar. 6, 2009 at 1:02 AM

Let's rephrase the question ..

Do I approve of government instigated contracts (marriage licenses) for homosexual couples in order to eliminate discriminatory acts based on sexual preference? 


Do I approve of homosexuals having a right to be married in a Christian church?


I've posted this before, but it seems appropriate to do it again:

  • I am a Christian - which means I am personally and religiously opposed to gay marriage.
  • I am a Libertarian - which means that I am politically opposed to a Constitutional Amendment banning or granting same-sex (or any other kind) of marriage.

Here is the basis for my argument:

The US Constitution does TWO things:

  1. It PROTECTS an individual's rights - it DOESN'T GRANT rights
  2. It BINDS the government to a restrictive rule of law, OBLIGATING them to protect and uphold the Constitution.

First, lets look at what a right REALLY is:

According to Black's Law Dictionary, a right is "inherent in one person and incident upon another .. the power of free action." Please note that rights are "inherent," meaning that it is physically impossible for rights to be extracted from a person by ANY means. In other words, someone can kill you - depriving you OF life, but they cannot deprive your RIGHT to life.

A right is something you can do without permission, therefore the opposite of a right is something you cannot do without permission. ANY time you need permission to do something, it is a privilege. Black's Law Dictionary defines this as, "a particular or peculiar benefit or advantage enjoyed by a person, company, or class, beyond the common advantages of other citizens. An exceptional or extraordinary power or exemption." Rights and privileges are opposites. Here are some corollaries:

  1. ALL rights are derived from property
  2. EVERY right implies a responsibility
  3. The ONLY limitation on your rights is the equal rights of others

To have a more thorough understanding of the differences between Rights and Privileges please click here: Rights vs. Privileges

For the sake of brevity and applicability, I am paraphrasing the information in the above document for the purposes of this journal.

It may come as a shock to read that there are no "constitutional rights." This term is misleading because it gives the impression that the Constitution grants rights.


The Bill of Rights enumerates our rights, but none of our founding documents bestow anything on you at all. All of your rights precede the US Constitution. The government can burn the Constitution & shred the Bill of Rights, but wouldn't have the slightest effect on the rights you've ALWAYS had. This also means that these rights aren't exclusive to Americans; America is just the country who has promised to protect them.

  • "The convention of a number of the states, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the government, will best insure the beneficent ends of its institution."

- The Preamble to the Bill of Rights (didn't know there was one did ya?)

Let's break this down:

  • Who? The convention of a number of states
  • When? At the time of their adopting the Constitution
  • What? They expressed a desire to prevent misconstruction or abuse of government power.
  • Solution? To add further declaratory and restrictive clauses.
  • Why? To further extend public confidence in the government

When we make an amendment to the Constitution, we are DECLARING to the government that we are claiming a specific right that they may not, under any circumstances, touch. Remember, rights are something that we don't have to ask for, and something that is inherent in us - we are born with them. If we had to ask our government to practice our rights - then they wouldn't be rights, they would be privileges (put this in the back of your mind when contemplating any other rights - you might begin to see how unconstitutional our current government is).

So how does this apply to the marriage issue? Let's break down the argument to its most basic points:

  • Proponents of gay marriage argue that marriage is a right for all couples who are in a loving committed relationship regardless of sexual orientation, AND should be privy to the same "rights" that heterosexual married couples have. (I have rights in quotations for a reason ... I hope that you understand this as I go on)
  • Opponents of gay marriage argue that marriage is a right for ONLY one man and  one woman, and homosexuality should not be rewarded because of the negative moral and social implications. Marriage is a religious issue and the government has no business in it.

......... *Sigh* Where do I start .......

How about with this: Marriage is NOT a right! ..... For anyone ..... gay or straight .....

  • You must ask permission to be married; you must ASK you significant other if you can marry them. If they say yes, you are granted a privilege to be a part of the person's life "as long as you both shall live." If they say no, you have NO legal recourse; you simply cannot marry that person; you've been denied that privilege. If marriage is a right, then the government is OBLIGATED, by the law of the Constitution, to protect your right. This DOES NOT happen! If Johnny asks Suzy to marry him, and Suzy says no, Johnny cannot sue her, and the government doesn't come to the aide of Johnny in order to protect his right to marry.
  • EVEN if you get past the first hurdle, the two of you STILL do not have a right to legally marry. You must ask permission from religious clergy or a JOP to marry you - they can also refuse  - and you must apply for a license in order to do it. Black's Law Dictionary defines a license as "a personal privilege to do some particular act or series of acts on land without possessing any estate or interest therein, and is ordinarily revocable at the will of the licensor (red flag) and is not assignable." Did George Washington have a marriage license? (No.) Did Thomas Jefferson? (No.) Did they simply ask the women they loved to settle down with them and perhaps raise a family? ..... Uh Yes! Ever heard of a Common Law marriage? Did you know that the ONLY reason why we have marriage licenses to begin with was to "approve of" interracial marriages. (red flag)

Because rights are derived from property, the ONLY way for marriage to be a right, is if you OWN your significant other. Owning a person is slavery and it not a right because (we all know this), it infringes on a personal liberty. Your rights cannot infringe on my rights and visa versa.

The Constitution was not designed to give the government the power to grant privileges to certain (or any) groups of people for any reason. Let me say this again......

"We the People" NEVER gave the government the authority to license , permit, or otherwise grant special privileges to anyone for anything!

The authority lies with in our own power to exert our own rights. For this reason (marriage) licenses are unconstitutional. However, under the current law, their is a civic injustice which discriminates against a certain group of people - in this case homosexuals.

So to the PROPONENTS of homosexual marriage ......

If you want the government to grant to homosexual couples the unconstitutional privileges that heterosexual couples enjoy, then keep doing what you are doing. HOWEVER, true liberty CANNOT thrive while our government continues to act illegally. If you want true justice you should  be fighting to get the government OUT of marriage by calling for the immediate discontinuation of the issuing of marriage licenses, the discontinuation of government endorsed privileges associated with marriage (and while we are at the penalties too), and revoke the authority of Justices of the Peace to marry couples. After all, the only reason to legally marry under current law is to reap the benefits associated with it. No one has any business telling homosexuals that they cannot have a common law marriage. If your significant other grants you the privilege to marry than it should be your right as a couple to live how you deem fit; you shouldn't have to ask anyone else beyond that. (This principle should apply to heterosexual couples as well). If a homosexual couple desires to have a clergy marry them and conduct a ceremony, then seek out a clergy who supports your relationship. While this may be outside the Christian faith (at least) why would you want to force someone to do something against their will?

And to the OPPONENTS of homosexual marriage ....

Please remember that I know why you feel the way you do; I feel the same way but with a major exception. If marriage is a religious issue and the government has no business involved with this, then why do you ....

  • permit the government to license marriage?
  • permit (and accept) government endorsed privileges?
  • try to misuse the Constitution -which dictates federal law - to fight a culture war?

Remember, the Constitution doesn't grant rights but it also doesn't restrict the people. The Bible may say that homosexuality is an abomination but it never says that we can use the government as our mouthpiece and coerce people to submit to Biblical law against their free will. Jesus Christ NEVER forced ANYONE to follow Him against their free will. I believe that we are a nation founded on Christian principles, but that doesn't make us a Christian nation. If we were, then the founders would have established a theocracy and not a Republic; a government that protects the rights of the individual over that of the group. If you want true justice you should be fighting to get the government OUT of marriage by calling for the immediate discontinuation of the issuing of marriage licenses, the discontinuation of government endorsed privileges associated with marriage (and while we are at the penalties too), and revoke the authority of Justices of the Peace to marry couples. After all, the only reason to legally marry under current law is to reap the benefits associated with it.

OMG! These two completely polor opposite poistions have a common ground on which they can fight upon: To get the government to follow the Constitituion and get out of marriage in order to allow us to live as "We the People" choose to live.

Imagine how powerful we can be when "We the People" speak!

Imagine taking back the power we have relinquished over time to the government!

Imagine the freedom YOU would have!

by Member on Mar. 6, 2009 at 1:07 AM

I am not a beleiver in taking peoples rights away.... mainly rights in who and who not to love. I dont beleive that is right.

{ will do whatever it takes for her kids kind of momma}
by on Mar. 6, 2009 at 1:14 AM

Yes they should have the right to marry.


by on Mar. 6, 2009 at 1:23 AM

I have too a opinions on this one. 

NO they should not!  It's immoral and just plain wrong!

But it's not illegal and as long as it's not illegal I will state my opinion but will hold no ill will to anyone who does not agree with me.  We have a right to opinions.  But when it's not illegal we do not have a right to dictate anothers life.

by on Mar. 6, 2009 at 1:40 AM

 Eilish are you a lawyer? Or did you take law in college? You seem very knowing of the legal things.

I don't know bupkiss about it...but I've had friends who chose to sleep with the same sex. One guy I worked with. A sweetheart of a guy who would help you out when you needed it. I also knew another at work who was gay and he was the flashy type...walking around with the whole "woman" talk and such. Just a step from being a cross dresser I think...although he would've made a very pretty girl...still...

Knowing these two guys....made me see that it's not a disease or anything they should be ashamed about. However, I was wondering...whatever happened to "sex behind closed doors"? I may like different things in the bedroom but I don't want to "wear it" out in public. Isn't that the same thing? I see all these parades and movies, tv shows with this sort of thing and  I think to myself...would it feel the same if it were people who were advocating BONDAGE...light or the industrial "I have a sex swing in my bedroom wanna see it?" type of thing? What if people who advocated sexual bondage had parades in public places? What if they wore ball gags and strap ons carrying whips and chains and such? Would I feel the same way?

 Can you imagine like "foot fetish" people having their own parade? The signs with "sexy feet" on them in some provocative caption? Other signs saying "I love feet I'm proud get used to it?"

I mean come on...

As far as love follow your heart and it takes you places. You might love a guy as a woman or love a makes no difference to me...As long as they are happy! Really who has the right to take away someone else's happiness?

Do I support gay marriage? Yes I do. To be honest I might have issues watching some guy kiss another guy in public but that's just something I learned when I was younger. I can't even watch Brokeback Mountain yet! But I am going to try someday. For now I am happy as a loving wife to a wonderful guy, being a mom to two spitfire little girls.. I might be in the minority here I don't know..but this is how I honestly feel.

by on Mar. 6, 2009 at 1:59 AM

Quoting truetigress:

 Eilish are you a lawyer? Or did you take law in college? You seem very knowing of the legal things.

No Ma'am ... just a mom who decided to learn a thing or two about rights.  I did take a Constitutional Law class in college, and it was the most intriguing class I have ever taken. I believe that if we took some time to actually pay attention to the law set out in the Constitution, we 1) wouldn't have the government problems that we had today and 2) issues like would be "non-issues." My most recent study comes from Michael Badnarik and his book Good to be King.

by on Mar. 6, 2009 at 2:47 AM

Yes. This should never have been put to a vote in the first place. Why does anyone get to decide who someone else can marry. Do you remember when everyone used to say how morally wrong it was for white people to marry black people. Marriage is noone elses business and some uptight busy body should not get to decide for the minority. Btw just because the Majority thinks its a good idea doesn't mean it is. Remember when the majority thought women shouldn't vote, or black people shouldn't vote, or that black people couldn't go to the same schools as the rest of us? So just because bigots can vote, doesn't mean its ok.

by on Mar. 6, 2009 at 2:55 AM

Quoting Eilish:

Let's rephrase the question ..

Do I approve of government instigated contracts (marriage licenses) for homosexual couples in order to eliminate discriminatory acts based on sexual preference? 


Do I approve of homosexuals having a right to be married in a Christian church?


Ok I do agree with you on this. I do not think churches should be forced to marry homosexual couples. The government should not get to dictate how religions practice. There are christian churches out there more inclusive views that do accept homosexuality and are even willing to marry gay couples, but no religious church temple or whatever should be forced to marry anyone they are not willing to marry.


Proud Pagan Mama

They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety. ~Benjamin Franklin~

by on Mar. 6, 2009 at 3:11 AM

 Yes I think they should. Its their right they cant help who they love. Love is love no matter what.

You know a lot of people say churches should not be forced to marry gay couples but yet they are trying to force abortions no matter what religion and on any kind of doctor.

These days things arent the way they use to be. So why cant we except the change?

by Bronze Member on Mar. 6, 2009 at 3:11 AM

I agree with what was already replied within this post. I feel that religious leaders should not be forced into marrying a same sex couple if it is against their religion. However, I feel that the government has no place to tell a couple that they are not aloud to be married or committed and cannot share their lives together like every other couple in this world. It is none of the government's business what goes on between two people (in a commitment sense).

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