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Is a right to marry in the constitution at all...?

There is no right to marriage -- gay marriage, same sex marriage, heterosexual marriage -- guaranteed in the Constitution. In fact, marriage is not mentioned in the Constitution at all, which means the federal government has no role in marriage as a construct.

Per the Tenth Amendment to the Constitution:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

Because the Constitution does not grant the federal government any authority with regards to marriage, the Tenth Amendment explicitly leaves that power with the individual states.

My state can discriminate against gay folks who want to marry?

It certainly can. Nothing in the Constitution prohibits individual states from defining marriage any way they choose. One state may embrace marriage between two people of the same sex; another state may recognize only heterosexual marriage between one man and one woman; a third state could even choose to legalize polygamy if it wishes.

Currently most states have not legalized gay marriage. Those that have include Connecticut, Iowa, Massachusetts, New Hampshire, New York, and Vermont, plus Washington, D.C.

Doesn't the Fourteenth Amendment's "Equal Protection" clause challenge this reading?

No. The Fourteenth Amendment, to this end, guarantees three things: 1) that states do not pass laws that exclude specific individuals and groups (i.e. banning a gay man from marrying a wo

13 Answers

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  • 7 years ago

    You know what else the constitution doesn't say you have the right to do?

    1. Watch television.

    2. Talk on the phone.

    3. Fly in an airplane.

    4. Post moronic comments to internet sites like Y!A.

    So what?

    -------------------

    Amendment IX

    The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

    Amendment XIV

    Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

    ...

    Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

    ------------------

    It's not merely the existence of the 14th Amendment that's important, it's also what is said in the 9th.

  • 7 years ago

    If you are not aware. The court decision of Varnum v. Brien is why same sex marriage in Iowa is legal. The Iowa Supreme Court determined that denying a marriage licenses on the basis of sexual orientation violated the equal protection clause of the Iowa Constitution.

  • ?
    Lv 5
    7 years ago

    Anything not explicitly mentioned in the US Constitution is left up to the states, marriage included. No one said that marriage was a federal issue.

  • John S
    Lv 7
    7 years ago

    So I'd like to point out 1 thing that the vaste majority of people confuse.

    1) Gay marriage vs. Same Sex Marriage.

    Gays CAN get married.. always could. They just had to do it to a person of the opposite sex.

    What is therefore prohibited is Same Sex Marriage.

    This may seem like semantics - but it is not.

    It shows that the government doesn't discriminate against a person's sexual orientation, but their gender.

    The government doesn't ask, nor checks on a person's sexuality.

    Gay, Straight, Bi, whatever. You can get married if you want. Just to someone of the opposite sex as you.

    This applies unilaterally to EVERYONE. -- Equal Protection.

    This is BECAUSE marriage is defined as the union between a man and a women. This is what philosophers would call the 'essence' of what marriage is. The physical reality that the word 'marriage' describes.

    The word, marriage, already has a predefined definition and it is open to everyone who is an adult, regardless of sexual orientation.

    ___________

    Therefore what people resent is the re-definition of a word and thus changing its fundamental truth associated with it.

    Like suddenly including rectangles as squares. - We already have a word to describe a rectangle and one to desribe a square. We don't need to combine them or redefine a square to also mean a rectangle.

    They are distinct arrangements.

    Likewise a Same Sex Civil Union is different then a Marriage. -- They just ARE. It is reality.

    _________________

    The media and some groups have confused the issue by making it about "the right for homosexuals to get married" - but that is a twisting of the actual issue.

    Religious people (some of who are taught more philosophy) have been rightfully saying that this is a redefinition of marriage.

    Example:

    Can I simply say I am someone's heir?

    What if I REALLY want to be Bill Gate's heir... can I make myself one?

    ANSWER: NO, because the essence of what an heir IS, means that Bill Gates names his heirs. I can't do it, even if I really really want to. Even if it seems more fair or equal that's NOT what an heir TRULY is.

    Same with marriage - it is TRULY describes a certain state between a man and a women.

    Even cultures which recognized homosexual relationships never called their relationship a 'marriage' some of them (like the Greeks and Romans) had BOTH.. a wife AND a same sex partner.

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  • ?
    Lv 7
    7 years ago

    The US Supreme Court completely rejected the argument of Gay Marriage being a civil right and pushed it back to the state acknowledging the 10th Amendment.

  • G C
    Lv 7
    7 years ago

    The Declaration is the philosophy upon which all laws are to be legislated. In the Declaration it is the Creator who gives rights and it is that God who's laws we follow.

    Marriage is to be regulated by civil governments by the authority of God. People have to be protected. Children, siblings, incest, etc. There MUST be rules and because there is divorce where the families are divided, legal problems come into play. There is no doubt that marriages are regulated by civil governments and under God's laws.

  • 7 years ago

    The primacy of the Constitution is well established in cases where state laws violate it. Marriage is contract that confers rights and privileges to the two people involved. Just like a state cannot have slavery, voter discrimination, or other limits. There is also the precedence of mixed race marriage prohibitions being found unconstiturional. Stare decisis carries a lot of weight.

  • 7 years ago

    The constitution also protects the right to pursuit of happiness, and marriage is thought by many to bring happiness. Also, the government is prohibited from making laws respecting religion, which basically the entire basis for banning gay marriage

  • ?
    Lv 5
    7 years ago

    Relax, most states will soon oust fundamentalist bigot politicians and you can celebrate your fondness for various types of marriage endorsed by the state.

    I assume that's what you're getting at?

  • Anonymous
    7 years ago

    Romans 1:24-32 "Full of murder, envy, strife, deceit"............

    Attachment image
    Source(s): Looks like two ex-wives on the ground in the background huh?
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