Jag ([info]agrajag) wrote,
@ 2005-11-06 12:22:00
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Current mood: thoughtful

Legality of gay marriage
I just had a thought on the legal status of gay marriage. If you look at marriage as a contract between two people, then the government is denying certain people from signing that contract based on their gender. I'm almost certain there should be some kind of anti-discrimination law that could be used to present an attack for gay marriage with that thought process.

However, I can't recall of a court case being based off of this, so I'm guessing there's some flaw in my logic. Probably in the way marriage is a license and not a contract. Although I would still think that you couldn't deny licenses based on gender. Unfortunately, I don't know enough about the law to know for certain. Although if someone out there has some better ideas on this, I'd love to hear them.


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[info]eridan
2005-11-06 05:37 pm UTC (link)
Actually, I think it was in VA where they declared marriage to be equivalent to a contract, and stated that two persons of the same gender could not sign said contract.

I can't remember to be honest which state it was, but i'm just WAITING for the contract lawsuits for people trying to dissolve business partnerships based on the fact that both people on the contract are female or male.

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[info]tsaiko
2005-11-06 08:20 pm UTC (link)
That would be VA. They have screwed up all sorts of contracts that way. Don't know what, if anything, the government did to fix it. Given that they've also managed to screw up their labor laws pretty bad by invalidating an older law and thereby invalidating all laws referencing that law, I wouldn't put it past them to have just gone "Ooops!" and left it on the books. -_-

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[info]purrmeow
2005-11-07 12:36 am UTC (link)
it's a disgustingly sticky situation, which it really shouldn't be, because (as you know) there is a huge difference between a legal marriage and a religious marriage. but there's something specific about a marriage contract that, up until recently, has not been dependent on gender, but some states are changing this saying that this certain type of contract can only be between a man and a woman. fear and bigotry are awfully difficult things to fight against.

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[info]reginod
2005-11-07 01:59 am UTC (link)
Article I Section 10 Clause 1 of the Constitution holds that “No State shall…pass any…law impairing the obligation of contracts”
I’m not sure how this has been traditionally interpreted (but I gather that it has traditionally been read to apply to existing contracts and not to blocking the formation of new contracts), but it seems to me that a reasonable reading could get you the result that states can’t forbid gay marriage contracts (not, of course, that the federal government couldn’t).
I gather the reason the gay marriage cases have been argued they way they have (under the 14th amendment’s cue process clause) is because the Supreme Court has fond that marriage is a fundamental right protected by that part of the Constitution and any restriction of this right will have to sever a clear state interest and the law must be narrowly tailored to achieve that end and only that end. This is Loving v. Virginia if you want to read the decision. This forces opponents of gay marriage to argue that it would harm the state in some way (which is what they normally do) or that the right to marriage is really just a right to heterosexual marriage (which seems to be a weak argument, but they make that too).
Just my two cents (Obligatory: I am not a lawyer and this should not be taken as legal advice)

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good thoughts
[info]revkara
2005-11-22 09:10 pm UTC (link)
I've given this lots of thought and performed some really great and meaningful same sex marriage ceremonies.

PS you don't update enough

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