I can understand why folks may not be satisfied with my main man Ron's views on gay marriage and the like. But you do have to keep in mind that he's like 80. In that context, he's pretty open minded.

I wouldn't go quite that far. I'd just say he's (mostly) ideologically consistent. He doesn't want the federal government to have the power to define marriage, nor do much else. He's perfectly fine with state government making those same distinctions.

And this is one of my biggest problems with Ron Paul. I don't want an extremely powerful federal government defining things they have no business defining. But I want the federal government to be powerful enough to stop the state governments from doing the same things I wouldn't want the federal government doing. I think Green Habit said something to that affect once on this very forum.

It's a very tricky question. James Madison argued (IMO correctly) that a larger republic protects minority rights better than a smaller republic. But when you start talking about the federal government being powerful enough to overrule states on issues constitutionally left to states it instantly makes the country less democratic, and once that power is taken, it is scarcely ever returned. So now you have an extremely powerful federal government which can just as likely (more really) use that power to deprive citizens of their rights.

In the case of gay marriage, it wouldn't be the a powerful federal government overriding state governments, though. It'd be the Constitution limiting the power of all the governments.

Agreed. Though, Bill O'Reilly is eloquently arguing that marriage isn't a constitutionally guaranteed right.

I've actually been considering that line of thought as well. In Loving v. Virginia, (which struck down bans on mixed-race marriages) the Supreme Court found that, in addition to the law violating the Equal Protection Clause (which makes sense--denying people rights unequally), it also made a substantive due process finding in a shorter paragraph at the end:
I'm not sure if this is correct with regards to what we know of civil marriage. Certainly, people have the right to engage in romantic relationships--that would be found under freedom of association in the First Amendment. But does the Constitution require that states have to allow people to join incomes, adopt and care for children, and cede medical decisions to whomever they see fit? I'm skeptical that you should make a substantive due process claim on all of that in one fell swoop.

If/when SCOTUS strikes down anti-gay marriage laws on Equal Protection grounds, it would be interesting to see if a state like Utah (where the majority of its citizens subscribe to a religion that places very high importance on its view of marriage) opts to eliminate civil marriage altogether, to prevent its view from being sullied. That would force a couple wanting to marry (no matter the sexual orientation) to try and enforce that Due Process clause that currently exists as precedent in Loving.

I'm grading tests right now so I'll respond later.

I'm buying a right to marriage based on the 14th (Equal Protection Clause, Due Process Clause), 9th, and 1st (assembly/"discovered" freedom of association).

While you're finishing that, I'll add one of O'Reilly's fondest arguments on this subject. It was that if you allow gay marriage, then you have to allow the polygamists and the communes to marry. This argument fails if you limit your constitutional span to the Equal Protection Clause (everyone is equally allowed to civilly marry one, and only one person), but it may be valid if you're arguing substantive due process. How would a fundamental right to benefits provided via civil marriage be limited to just between two people?

right, and what's to stop a guy from marrying his dog or his horse?!!

That's probably why the EPC clause is the better argument.


No, it doesn't. It doesn't need to. The point is that if states are giving those benefits to married persons then they must apply that equally to any two people legally permitted to enter into that contract.

Well, so much for that debate. Hooray for agreement!

ops.