General Question

LostInParadise's avatar

What is the legal argument against gay marriage?

Asked by LostInParadise (17830 points ) June 5th, 2012

I read that there is a chance that the issue may soon work its way to the Supreme Court. I know we have discussed this before, but I am interested in this from a strictly legal point of view. If any of you are lawyers, I would be particularly interested in what you have to say.

I have no stake in the outcome, but taking as neutral a position as possible, I just don’t see any legal angle to prevent same sex couples from enjoying the same legal rights as heterosexual couples. I know Scalia and Thomas would never vote for it. I am curious to see what arguments they can come up with to support their viewpoint.

Here are some of the arguments that I have heard, none of which pass legal muster.

Homosexuality is immoral. Well, not everyone feels that way. Those who do are entitled to their opinion, but you can’t legislate morality. You are going to have to explain to me how there can be victimless crimes.

It is unnatural. Firstly, what things are natural? I could argue that flying in an airplane is unnatural. If God wanted us to fly, he would have given us wings. Secondly, it is in fact natural. Homosexuality has existed in all places and at all times, even if not practiced by the majority. There are cases of homosexuality among other species as well.

It will destroy the institution of marriage. How so? I don’t see how extending the number of people who can make a commitment to each other can possibly do any harm to marriage. I have yet to hear anyone give the specifics for this argument.

Have I missed anything?

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43 Answers

Response moderated (Off-Topic)
ragingloli's avatar

The same arguments that have been fielded against interracial marriage.
None of them hold any water.

Homosexuality immoral? Only according to religious dogma. And according that, not believing in Jesus is immoral, too. In fact, that is the one sin that can not be forgiven.
And the abrahamic holy books endorse slavery. The immorality argument is utterly worthless.
Unnatural? Homosexuality has been observed in a lot of animal species. Plus you are most likely born that way. It is natural.
It will destroy the institution of marriage? The same argument was brought up in opposition to interracial marriage.
And let us not forget that marriage was originally a contract between families and clans to create economic and political alliances by exchanging property, which included wives.
Yes, plural, because polygamy was the norm. Who got to marry was decided by the heads of the families. Women had no say. Women were not allowed to have property. Women did not inherit. And you only could marry within your religion.
When all that was changed, when women got to decide who they marry, when polygamy was abandoned, when women were allowed to have property, and when women were no longer property themselves and when people of different religions could marry each other, did that destroy the institution of marriage?

bolwerk's avatar

One argument is that homosexuals aren’t or shouldn’t be a protected class.

The tradition argument falls flat, and legislation that is based on tradition alone of course can be changed. Marriage was only traditionally a secular matter because it involved estates, property, etc.. It otherwise should have been an ecclesiastical matter. If you want really traditional marriage, require that the father of the bride give some livestock to the groom as a dowry.

Anyway, I don’t even see a good argument for keeping marriage around as a government-regulated institution. But if it’s gonna happen, and it will, I see no need for it to discriminate against homosexuals.

Trillian's avatar

Considering the ease with which people marry and divorce, my counter question would be; What sanctity of marriage?

DominicX's avatar

No, none of those arguments are legal-based, which makes sense since the argument against gay marriage is not based in legality, but in tradition and religion. I don’t have a problem with people wanting marriage to be entirely traditional, ceremonial, and religious, but in order for that to happen, that means that the legal aspect of marriage needs to be removed from it. You can’t have it both ways. You can’t insist on marriage being only religious and traditional and then insisting that the government have a role in marriage. As long as marriage is a legal matter, then it should apply to same-sex couples.

ucme's avatar

There isn’t one, just archaic, neanderthal psychobabble, spewed from the mouths of bigots in powdered wigs. I can’t be doing with it I tell you.

Linda_Owl's avatar

It is not a “legal” question, it is a “religious” question. The various religions have all decided that being a homosexual is a ‘choice’ these people make & since it goes against the things that are stated in their ‘Holy Books’, religious people have decided that it should be against the law. These people are born this way & to discriminate against them like this means that religion is being allowed to dictate to the public sector.

marinelife's avatar

There isn’t a valid legal argument.

bkcunningham's avatar

What happened in California that is taking the issue to the US Supreme Court?

wilma's avatar

I agree with @DominicX I think that the legalities of marriage, and the religious aspect that some people observe should be separate.
Everyone would be able to get a legal Marriage (maybe a different name for it?) and then only when legally married a religious marriage (Maybe a different name here instead?) could take place within the parameters of any of the religious institutions.
Everyone would have the same legal rights and the different religious groups could make their own rules for who could be married within their own sanctuaries.

Sorry to answer the question more directly, no I can’t think of any legal reason other than tradition and those who support that tradition say that anyone can marry anyone else of the opposite sex, (within the age parameters) so they consider it fair and legal.

dabbler's avatar

There isn’t actually any except plain old inertia of institutionalized fear of that which by contemporary standards seems ‘unwholesome’. And some people are stuck on a ‘definition’ hang-up, such as nuh-uh-that’s-not-what-it-means-to-me.
And there is a larger problem that not enough folks understand that what “marriage” means to people personally should be required to have in common with the civil institution only their spelling.

People can make whatever commitments they chose with each other, even contractually and call it marriage between them or whatever else they like.

But civil marriage has to be defined in a way that clarifies administration of civil laws that are concerned with it. It’s not about morality just practical executive-branch administration.

josie's avatar

Read the legislative record of the states that outlaw it.

flo's avatar

Just curious @LostInParadise re. There are cases of homosexuality among other species as well.
Are you talking about penguins?

Added:Homosexuality has existed in all places and at all times, I don’t know if that as well as the” ...among other species” would be legal arguements for the for side though.

Ron_C's avatar

There is no real legal argument, there is however a great deal of conjecture. DOMA was passed to define marriage as between one man and one woman, I believe it is being overturned as unconstitutional.

Conservatives think that gay marriage will somehow effect or cheapen their marriage. Of course thinking that way actually cheapens their marriage.

Others say that if you let two guys get married the next step is getting married to dog or horse. I’m not sure how their twisted little minds figured that one.

Finally there is the argument that marriage has been declared in the bible to be between one man and one woman. Of course they forget about Solomon’s wives and David’s dalliances.

bolwerk's avatar

ConservativesAuthoritarians are not afraid of their own marriages being diminished. They’re afraid of homosexuality being legitimized, which I think has basically already happened. Some might be actively afraid that, if gay marriage becomes legal, all the straight kids are gonna want to try it, and they might even enjoy it.

Simone_De_Beauvoir's avatar

There isn’t one.

Blackberry's avatar

@flo It doesn’t.

If you look at the reasoning for DOMA, it is vague, worded poorly, and not very solid. I think that is what the OP means by legal arguments. We already know the fallacious BS arguments, but I think OP was wondering what reasoning was used to pass the clearly unconstitutional DOMA. I’m on my phone now so I’ll look it up later.

Jaxk's avatar

I used this argument before but just in case someone hasn’t heard it, I’ll do so again. Most of our laws concerning marriage were enacted to promote the family. The joint tax return was enacted to give households a chance to have one worker and one stay at home parent. The government has a vested interest in promoting a good home life for children. The government does not have a vested interest in giving a tax break to anyone because they found thier ‘soulmate’ (gay or not). SS survivor benefit were the same one stay at home parent would not be penalized because they didn’t work but chose to stay home for the kids. Inheritance tax, samo, samo.

The government has no obligation to give you a tax break just because someone else gets it. You must fit the criteria the tax break was designed to promote. Marriage has been an easy way to define who would be in that position. Even now when marriage is becoming more transient, most marriages end up with children.

Lat point. The marriage laws have been defined as a husband and wife. If you want to argue to change that you need a compelling reason to do so. State law has governed this historically and I believe the states will continue to prevail.

BhacSsylan's avatar

@Jaxk the compelling reason is, quite simply, why are SS couples not afforded the same benefits? They can also form families, they can also have or acquire (when discrimitory practices don’t block them) children via surrogates/donation/adoption. They can have a stay-at-home parent and a breadwinner parent (though this is fast becoming the minority in opposite sex couples as well). And studies consistently show no difference in the home life of the children of SS couples beyond a slight higher chance of being interested in being homosexual (no actual difference in if they are, just a higher williness to think about it. I know, armageddon!). In order to deny those couples the same right, the state must show a compelling interest in order to block it (which one can also attempt to argue, but has ample precident). And currently, there is none.

Also keep in mind that the state does absolutely nothing in order to actually check the ability and williness of a potential couple to have children. As they should not, naturally.

Patton's avatar

Not that it’s any good, but the actual legal argument is this: states should be allowed to set their own marriage laws, public referendum is a legitimate way of setting laws, therefore existing laws prohibiting gay marriage are legitimate (meaning the Supreme Court can’t overturn them).

Lots of things about that argument are correct, but it fails for a very simple reason: basic human rights are a matter of federal jurisdiction (especially as reinforced by the 14th Amendment). The US Constitution was created to protect citizens from many things, including the possible tyranny of a prejudiced majority. Here’s one place where that fact is very, very relevant.

JLeslie's avatar

@Jaxk Nothing you said is compelling to me to why gay marriage should not be legal. If people have a problem with the marriage tax break then let’s argue the validity of it in court. If we as a society believe legal protections and tax breaks are important for spouses and children, then how does supporting those ideas and laws exclude gay marriage? Their committment is as real, they have children, they build a life together like any other couple.

Aethelflaed's avatar

The thing is, laws do legislate morality. Murder and rape are illegal because we find them morally wrong, especially because they harm people. Now, I don’t think same-sex sexuality is harmful or immoral, but the people who are trying to legislate it do see it as harmful. So, I’m not really sure the “we can’t legislate morality” thing holds.

ragingloli's avatar

@Aethelflaed
Murder, theft and rape (and slavery, which god is fine with) are legislated against because they harm other people. Physical, material or financial harm are objective events to base moral and legal judgement on. Some vague feeling of “eww how icky” is not.

Aethelflaed's avatar

@ragingloli I think there’s more to it than “ew icky”; I think a lot of these people see it as helping gay people not go to hell.

ragingloli's avatar

@Aethelflaed
I somehow doubt that it is “a lot”. I think those are just a tiny minority and most would be delighted to see those “abominable fags” roast in eternal fire.

Lightlyseared's avatar

This comic covers it.

flo's avatar

@Blackberry@flo It doesn’t.” It might be a good idea to state why not.

flo's avatar

By the way the reason I put that link is because some people’s arguement against it is because then some will demand to be married by the clergy.

ragingloli's avatar

And the counter argument to that should be ‘equal protection before the law’. It trumps religious conviction. How many do you think would defend that chaplin, who is working in a government institution no less, if he refused to marry interracial couples? How many do you think would bring up the “religious freedom” argument in that case?

dabbler's avatar

@flo I think @Blackberry is pretty much right, the link you posted is not very relevant.
The issue in your link is about the right of a chaplain to refuse to do something considered immoral, from his or her perspective.

The O.P asks whether outlawing same-sex-marriage has a legal basis.
That’s relevant to the link only that same-sex marriage is one more assignment that a chaplain may feel compelled to refuse. Besides that coincidence they are not related.

If same-sex marriage is illegal it is just one more aspect that might be contrary to a chaplain’s beliefs for which he/she might refuse the task.

You did write “I don’t know if the following has any relevance” and IMHO @Blackberry gave a reasonable response.

flo's avatar

@ragingloli I was bringing up the clergy because maybe the reason why it is not legal all over the place by now is partly because the clergy who think that couple will go to church etc. and demand it.

flo's avatar

The clergy in the military should quit if they feel that way.

JLeslie's avatar

@ragingloli If he is working in goverment he should have to follow the law. But, Chaplains in the military is a rather tricky topic, I think I would make them an exception. A Chaplain or Reverend who works for the government, nonmilitary, I think it is straoght forward, they would have to perform a civil marriage if it was law.

flo's avatar

That was not the best link to post. I was just thinking of clergy period, not so much the ones employed by the government.

JLeslie's avatar

@flo Clergy not in government should never and will never be forced to marry gay people in my opinion. Nor interreligious marriages. And, personally I would go as far to say not even interracial. They can do whatever they want. I don’t feel like you can force someone to officiate a religious marriage. Civil marriage is totally different. This is the problem with the US allowing clergy to do the civil part by a power vested by the state. Church and state should be totally separate.

Dr_Lawrence's avatar

When it comes to human rights issues, a referendum is an unacceptable method to set public policy!

Throughout history and across locations, there have been widely supported viewpoints and policies that were widely accepted by the majority.

Before the Civil War, many American states widely accepted slavery and the belief that Negros were inferior and sub-human and were not entitled to any rights enjoyed by the majority.

There are still pockets in the USA where blatant discrimination based on race, gender, sexual orientation, religion or political affiliation is still tolerated, even if officially the law prohibits it.

In the USA today, women still get paid less than men doing the same work for the same employer. By defining an employment position formally, an employer can make sure that certain jobs are open mainly to women and other job categories are open mainly to men even though the jobs require the same skills and involve exactly the same work.

The same institutional tricks are used to keep minorities out of job categories that are paid well or eligible for enhanced benefits. It does not make any difference whether laws prohibit such discrimination. What matters is what actually happens, not what should happen.

In South Africa under Apartheid, even though Blacks were the majority, they were not permitted to vote or entitled to most of the rights enjoyed by Whites despite the fact that they were the minority! A plebiscite of eligible voters (the white minority) was meaningless on matters of human rights for Blacks.

Under the Nazi regime during World War II, a referendum concerning the systematic extermination of Jews, Romany (Gypsies), Homosexuals and the mentally retarded would not have been an appropriate way to determine questions of the rights of minorities declared to be inferior to the Aryans.

Popular opinion is often nothing more than deeply ingrained prejudice, superstition, or irrational beliefs that are demonstrably contrary to fact. Denying facts does not make them false. It just shows that those who deny facts are either ignorant or intentionally blind.

flo's avatar

@JLeslie I know, I was referring to the mistaken belief on the part of the clergy and their flock (I have heard it expressed) that that is where it will be heading down the line.

@Dr_Lawrence , Heterosexuals have children and live happily without getting married, so I don’t know if we could refer to the “marriage” part of discrimination against SS couples in the same breath as the items you mentioned. But maybe I’m misunderstanding…

JLeslie's avatar

@flo I agree with that. They use it as propoganda to scare people and convince them there is a slippery slope, same as the bullshit about once gay people can marry next will be people marrying their pets.

flo's avatar

@JLeslie “marrying their pets” ...now that is beyond beyond. I don’t know how anyone can get there.

bolwerk's avatar

They come up with this stuff because they think about it. If you look at two dudes holding hands, you probably see a gay couple, your brain acknowledges it, and you move on with your day. When someone like Rick Santorum sees two dudes holding hands, all hell breaks loose: his mind goes to a giant black penis penetrating a 9-year-old white boy while a succession of barnyard animals immediately take a lordosis position. And his pants tent.

They come up with this stuff because they secretly like it.

flo's avatar

@bolwerk I don’t know. I’m not understanding it. Don’t they see how it makes them sound ridiculous?
Anyway I just wanted to point out there are the clergy and their supporters who have no problem as long as their own rights are not taken away, and I don’t put them in the same box as the rest.

dabbler's avatar

“Don’t they see how it makes them sound ridiculous?” Nope. Hypocrites are not like that. They tend to be flawed in that self-reflection/introspection thing.

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