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by AntigoneRising on October 18th, 2007

AntigoneRising

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The Supreme Court ruled in Loving v. Virginia, "Marriage is one of the 'basic civil rights of man,' fundamental to our very existence and survival." The Constitution prohibits infringing rights without due process. How can same-sex marriage be prohibited?

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Answers. 5 helpful answers below.

  • by Highlander is semi-retired from AB on October 18th, 2007

    Highlander is semi-retired from AB

    Yes same-sex marriage may be prohibited. This has more to do with the definition of 'marriage' than the ruling mentioned. If marriage is defined to be between one man to one women, nothing in this decision would allow same-sex marriage. If however the definition is one-person to another, it would justify a same sex union.

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  • by ChrisDC on June 12th, 2009

    ChrisDC

    Antigone, my personal feeling is that it can't be, but there's a twist on Loving v. Virginia that most people overlook.

    The Court in Loving did not base their decision on due process grounds. Meaning that they did not say they were overturning Virginia's ban on inter-racial marriage because the state had no power to interfere with marriage decisions, they overturned it because it was racially discriminatory -- and violated the equal protection clause of the 14th Amendement.

    (The Virginia statute did not ban inter-racial marriages -- it barred white people from marrying anyone who wasn't white. Black/Asian, Asian/Native American, Native American/Black marriages were allowed, which meant that the Virginia Supreme Court's argument that the statute protected the purity of the races was just a pretext.)

    What this means is that Loving is comparable to the statutes that ban same-sex marriage, but it's not the same issue since Loving focused on racial discrimination as an equal protection violation.

    Equal protection jurisprudence fundamentally rests on the principle that similarly situated people should be treated similarly.

    This is why gender based classifications in the law get examined in a different way than racial classifications -- sometimes women are differently situated from men (in pretty much anything involving pregnancy, for example).

    The intent of the 14th Amendment with regard to race is that different races are "similarly situated" for most purposes.

    The U.S. Supreme Court has not held that straight couples and gay couples are similarly situated. I hope they will one day, but they haven't yet.

    The Connecticut, Massachusetts, Iowa and California Supreme Court decisions on marriage go there by reaching the conclusion that straight and gay couples are similarly situated.

    When the U.S. Supreme Court takes up this issue one day, they'll do doubt reference the Loving decision, but any decision they make on same-sex marriage is likely to be based on a different argument.

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  • by singwell-is off researching a lot on October 18th, 2007

    singwell-is off researching a lot

    The key word here is "survival". The survival of humanity is not furthered by same-sex relationships.

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  • by purplecows on January 5th, 2012

    purplecows

    Same-sex marriage is not fundamental to our very existence and survival.

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  • by adamjohn on May 20th, 2010

    adamjohn

    This is a good question. In the Council of Europe, none of the nation states are obliged to introduce same-sex marriages. The Council of Europe defines marriage as a union between a man and a woman. The UK introduced the Civil Partnership Act 2005, as a way of rounding off piecemeal legislation recognising rights of gay couples. The Government found it easier to give same sex couples a package of rights than lots of ad-hoc rights. The watershed came in 2004, when the House of Lords ruled that gay couples have tenancy rights when one of the partners dies in the same way that married couples do.

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