> I don't see that gays are asking for any rights that straight people don't already have - the right to entwine their finances with their life partner and to file taxes jointly; the right to be named as next of kin for the person they love; the right to sit at the front of the bus.

Who says getting married is a right? I'm not aware of any Supreme Court decision that classifies it as one. Generally, the Court tends to define rights as being things fundamental to secure organized liberty (to paraphrase). That includes things like speech, privacy, religion, voting, freedom from unreasonable searches, etc. If gay people were denied those rights on the basis of sexual orientation, they might have a case. The Supreme Court places the strictest of scrutiny on laws that restrict people's fundamental rights.

Marriage more likely falls into a category akin to driving. States can restrict the right to drive: people under 16 can't do it, or people who are just 16 can't carry passengers for six months, or whatever. In this circumstance, all that a state has to do is show that there is a rational basis for the restrictions (and the law has to be related to a legitimate government interest).

In the case of marriage, the rational basis is that marriage is historically defined as being between men and women. The legitimate interest is that states have always regulated marriage and it's seen as one of their proper functions. About these points there is no doubt.

Now you say you want to change the definition of marriage. Hey, fine by me. But now we need to understand how these things are viewed by the Courts. If you'll remember, this thread started with a discussion about getting the Supreme Court of the United States to declare gay marriage a right. This would be completely out of line with its past decisions and constitutional law.

The constitutional basis for all of this discussion is rooted in the 14th Amendment, which has two relevant things to say: 1) states must give all people "equal protection" under the law and 2) cannot deny "due process" to anyone. Those are the only two clauses in the Consitution that even vaguely imply that the states have any particular obligation to treat people fairly (except for a few amendments that say states can't deny certain people the right to vote)[1].

Like I said before, unless your fundamental rights are being infringed (and that's a small list of freedoms), the government is generally allowed to discriminate against you with only the flimsiest of pretexts. The Court has ruled that "equal protection" and "due process" do not mean that everyone must always be treated exactly the same. It's pretty clear that nobody intended the 14th Amendment to mean that all people, regardless of age, were allowed to vote. So equal protection doesn't mean no discrimination whatsoever, and thus the Court has come up with that "rational basis" test.

There is one major catch: if you are a member of a racial minority, you get special status. The reasons for this are long and involved, but basically the Court ruled that the 14th Amendment (passed immediately after the Civil War) was specifically intended to protect the rights of minorities. Furthermore, these minority groups have historically been politically disenfranchised, and thus the courts owe them special protections.

The Court has not extended this protection to ANYONE else. Racial minorities stand alone in claims of equal protection violations. Women are the only other special case: they're less protected than racial minorities but a little more protected than anyone else.

You don't have any special protection if you're a member of any other group. I believe there may be a few borderline cases with the disabled (particularly mentally disabled, who may have to rely more on the courts than other groups), but otherwise states are pretty free to discriminate against other groups[2].

This finally gets us back to the topic at hand. Sexual orientation is not a "suspect class" that merits special protection by the Courts. At best, homosexuals might hope for the "quasi-suspect" status that women enjoy, but that's still probably not enough for the Court to tell states they can't discriminate against gays in marriage.

As much as anyone may feel it's morally just for gay people to be able to get married, there is no constitutional basis, either in its text or in Supreme Court case law, for such a thing.

Once more, I suggest that if gay people want to be able to get married, they work strongly at convincing legislatures to change the laws.

> > Why not end this? Why have any kind of civil recognition of marriage?
>
> More sensible might be to separate out the religious and civil aspects of marriage - have a civil marriage that is open to anyone with a licence, and brings with it the financial and legal benefits of marriage, and allow churches to join people together in religious ceremonies as they see fit, but without any legal meaning. This way, everyone can have the wedding of their choice.

Why have any particular financial or legal benefits for marriage? Why not simply allow people to enter into various partnerships as they see fit? If two people are living together and want to file taxes jointly, you could allow that, while at the same time not giving them any special status. If people wish to designate their partners as next-of-kin, allow it. Seems simple to me. The all-or-nothing marriage license is outdated in a good many cases today (note the increasingly popular prenuptial agreement, for instance).

> If they are the same, why not give them the same name?

Because it upsets some people to think of two same-sex partners getting legally married. I don't understand why it does, but it does. I'm probably not going to convince them otherwise anytime soon. Democracy is about finding workable compromises. Same-sex "civil unions" are more popular than allowing same-sex marriages.


As you note, right now gay people are getting the short end of the stick in that they can't enjoy the benefits of marriage right now. I would like to put an end to that injury as soon as possible. Civil unions allow us to circumvent a lot of the animosity toward same-sex marriages. If, after we have same-sex civil unions, we find we really need gay marriages, then we'll work on it. But the civil unions thing seems like a good compromise.

> Labelling them as being different will not encourage them to be treated the same. Names and labels have great emotive power, and insisting on the term "civil union" for something you freely admit to being identical to "marriage" can only make people think of those so labelled as of less value.

But almost all of the benefits of marriage we're concerned with are legal. And they're pretty limited. If we let people get civil unions, then it seems to me it will be fairly likely that they'll also be able to file taxes jointly, etc. Maybe they won't get all the non-legal benefits right away (such as medical coverage from private insurers for spouses), but those aren't areas the government should be messing with too much anyway.

> I thought the American system was set up so that government could (to an extent) do the right thing without worrying about what was popular. I believe the term used is "tyranny of the majority".

There is no tyranny here. By not being able to get married, gay people are being denied some benefits that, while not insubstantial, are hardly vital.

Homosexuals are not being tyrannized by heterosexuals because they can't get married any more than the rich are being tyrannized by the poor because they have to pay higher income taxes.

They are not losing any fundamental rights. Nobody is telling them they can't speak or assemble freely. They are not being denied fair trials.

You and I may agree that the situation is unfair, but there is nothing in the Constitution that requires all laws be fair -- after all, tons of laws necessarily cause some group to lose something, and the losers tend to view those laws as unfair. The solution to laws that are just unfair and stupid but don't strip away vital rights isn't to run to the courts. It's to change the laws via the democratic process.

If you run to a judge too much, the system breaks. After the Warren Court of the '50s and '60s issued a series of landmark civil rights decisions, the conservatives wised up. Starting with Richard Nixon's 1968 presidential campaign, appointing "strict constructionists" to the bench has been a key point in the Republican agenda (Roe v. Wade in 1973 only drove the issue home). They've made a very strong point of vetting judicial nominees for political ideology and ensuring that the party will approve of the decisions judges make.

It's working, too. The current Supreme Court is split 5-4 toward a much more conservative viewpoint than 30 years ago. With Bush getting to replace probably at least three justices, and likely with young ones, it's not going to get better for liberals. The lower federal courts are still rife with Reagan appointees (the Reagan administration turned screening appointees into a science).

Because of this, appointing judges has become a huge political battle. The judiciary has become increasingly politicized and partisan -- the one branch of the federal government that's supposed to be relatively free of it. The Democratic minority in the Senate has refused to allow confirmation votes on tons of Bush appointees for the lower courts, and it's created a mess of empty seats on the benches. This is not healthy for the federal judiciary.

The point is that we shouldn't expect the Court to make all the unpopular political decisions for us that we happen to favor. If the courts don't pick and choose their decisions, the legislators will, over time, begin demanding greater control over the courts. As the final check on the federal political process, I believe the Supreme Court has a vital role in defending our rights. At the same time, it's the weakest branch and the most dependent on the others for enforcement of its decisions.

It should use its nearly absolute veto power only when it absolutely has to, only to defend the most fundamental of rights. There is no way that marriage qualifies as one of these.

> 40 years ago, several states forbade interracial marriages. Had popular opinion favoured the compromise of allowing such marriages but calling them "civil unions", would this have been the correct course of action? I think not, and I fail to see the difference in this case.

It would have been a perfectly fine course. I've already explained the legal differences though, since racial discrimination is looked at differently by the courts than any other types of discrimination.

Stephen

[1] If you want to argue this point you can make a case that a lot of the Bill of Rights is vague about who it applies to and thus should apply to the states as well as the federal government. But there's nothing in there that would cover marriage, so it's pretty tangential.

[2] Members of specific religions are another interesting case. They don't get special protection under the 14th Amendment, but they are covered under the 1st.