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]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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