Why I am opposed to the Supreme Court ruling on gay marriage

After the Supreme Court's historic decision, my facebook wall exploded with commentary lauding the decision. This is the first time I can recall in which every post in a given day was on the same topic. Amongst us well-educated urban professionals, gay marriage has become a litmus test for whether you're "hip," "tolerant," and "progressive." To oppose gay marriage is now tantamount to confessing you're a child molester or a racist. You just can't do it.

This is the reason why I did not post my true feelings on the decision on my wall. I know all too well that I will be accused of bigotry, and they won't even consider the merits of my argument. I feel safe on WSO however, where anonymity reigns.

Let me be very clear on this. I PERSONALLY have no problem with gay marriage, nor do I wish gays ill. This issue has virtually no impact on my life, and I spend little time thinking or even caring about it. My opposition to the decision is a purely legal one and can be boiled down to the following assertion: marriage is not a political or legal right that is explicitly or implicitly guaranteed by the Constitution. As such, marriage is not a constitutional issue and hence not within the purview of the Supreme Court. The Court's job is to interpret the law, pure and simple. It is not supposed to rewrite the law or legislate from the bench. Its purpose is to act as an impartial arbiter of what the Constitution says and apply that reading to current problems.

When one reads the majority decision, there is very little in the way of actual legal arguments. Rather, it reads like a sophomoric romantic poetry aimed to tug at the heartstrings of its readers. It makes an emotional plea aimed at love. After all, only a monster can be opposed to love, right? However, this case is not about love. Us conservatives never said that consenting gay adults cannot be in a romantic relationship and engage in sexual activities. We do not deny them the right to enter into a civil relationship with its correspondent rights. We simply believe that big questions over marriage-a social institution that has evolved over thousands of years-should be decided by the people through a legislative process, not by judicial fiat. Yet, that is precisely what the Supreme Court has done. The majority, swept up by the false premise that equates gay marriage to civil rights for blacks, invoked raw emotions to impose its definition of marriage on the entire country. Gay activists meanwhile have bludgeoned anyone opposed as a bigot, a cultural neanderthal who is stuck in the 19th century. Religious people have now been marginalized by the radical cultural left, which seeks to aggressively use the courts to fundamentally re-shape American society.

For conservatives, this week saw three bad Supreme Court decisions (Obamacare and Texas housing being the others). It's a wake-up call for us, a stark reminder of just how high the stakes are in the 2016 presidential election. With several Court seats being up for grabs soon, a Republican president can once again put the Court on the right track: a venerable institution that sets aside its personal biases and adjudicates on the law.

FYI, I fully expect to get a ton of monkey shit for this post, but hopefully it will at least garner some interesting discussion.

Comments (48)

Jun 27, 2015 - 2:30pm

I'm a former lawyer and not a fan of judicial activism. I plan to read the decisions as this issue interests me.

But even if this does smack of judicial activism, if I felt like stridently declaring my problem with it, I'd have to think to myself "why am I objecting so much to this piece of judicial activism, but not so much to all the other examples?"

(Personal disclaimer: cool with gay marriage, opposed to gay divorce. You need to leave something on the table for people to campaign for)

Those who can, do. Those who can't, post threads about how to do it on WSO.
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Jun 29, 2015 - 10:05am


what about straight divorce?

I'm cool with straight divorce.

I'm thinking more about the LGBT gay marriage activists. They've fought a long and hard battle for the right to gay marriage. Now they've got it, after the initial parties, that leaves a hole in their lives. You need to leave something for them to fight for. I think a campaign for gay divorce could fill that hole.

Those who can, do. Those who can't, post threads about how to do it on WSO.
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Jun 27, 2015 - 3:29pm

ugh. I'm a conservative, but seriously, get over yourself. All constitutional law is totally made up anyways, as anybody who has taken even the most basic introductory conlaw class is aware of (you do know that all of the justices graduated at the tops of their law school classes, both liberal and conservative, right?). try living even one week of your life having society at large regard you as a lesser human being and get back to me.

Jun 28, 2015 - 1:22am

If all constitutional law is indeed "made up," then why even have a Supreme Court? If that's really the case, we should disband the courts altogether or not even adhere to their rulings since after all, it's just "made up," a mere legal unicorn.

Yup, I'm aware of the credentials of our Supreme Court justices. They're really smart. And your point is? 4 of these 9 smart justices (including the chief justice, who ruled for Obamacare and is by no means a partisan hack) ruled against gay marriage, so this is not some obvious "slam dunk" that you are making it out to be.

As for your final statement. I am in no way discounting the personal anguish that many gays have gone through. I empathize with them and in no way wish them harm. This case however is not about our personal feelings; it's purely a legal question of whether gay marriage is a constitutionally guaranteed right.

On a positive note, now that gay marriage is legal nationwide, hopefully we can focus on much more important issues affecting our country. And hopefully liberals can stop using gay marriage to bludgeon opponents by painting them as backwards bigots.

Jun 28, 2015 - 3:21am

Actually, my point was there are no slam dunks, because it's all made up anyways. Whether you want to disband the courts or not is up to you (at least in the world where anybody gives the slightest of a fuck about what you think -- hint, nobody does), or whether the courts perhaps serve a purpose that you may not fully comprehend is also an open question, but at any rate, your knowledge of constitutional law seems lacking, at best.

Jun 27, 2015 - 8:50pm

Ever since the Marshall court the United States has been under the rule of a secretive group of old white men (and now a few minorities). Heck there is never even is a pretense for impartiality, justices pretty much stick to party lines.

I don't know what you expected to happen if you gave a group of individuals unchecked power with zero accountability. If anything you have learned a little too late how unimportant democracy is to our nation.

Although I am a strong supporter of Gay Marriage and a big proponent of advancing a constitutional amendment, every American should be disgusted by how it was accomplished. Heck basically every single case where Scalia is on the dissent stinks of judicial activism.

Frankly I'm pissed about Texas Department of Housing and Community Affairs v. The Inclusive Communities Project. http://www.scotusblog.com/2015/06/disparate-impact-claims-survive-chall…

What happened is that the Supreme Court upheld "disparate impact" claims for housing discrimination. What this means is if you include anything like "income requirement, credit requirement" in a rental application you can be sued under the Fair Housing Act because those requirements create a "disparate impact" because they negatively affect protected minorities.

Jun 27, 2015 - 9:23pm


What happened is that the Supreme Court upheld "disparate impact" claims for housing discrimination. What this means is if you include anything like "income requirement, credit requirement" in a rental application you can be sued under the Fair Housing Act because those requirements create a "disparate impact" because they negatively affect protected minorities.

But, now the plaintiff must not only prove a disparate impact, but the intention to discriminate written in the policy that caused the disparate impact. This actually makes the burden of proof substantially more difficult to prove than before the ruling and the majority of experts expect the number of lawsuits to decrease fairly dramatically compared to today.
Jun 27, 2015 - 9:46pm

But, now the plaintiff must not only prove a disparate impact, but the intention to discriminate written in the policy that caused the disparate impact. This actually makes the burden of proof substantially more difficult to prove than before the ruling and the majority of experts expect the number of lawsuits to decrease fairly dramatically compared to today.

Firstly to respond directly to you, unless I'm reading it wrong, there never is an intention to discriminate necessary, hence the "disparate impact" ie a discriminatory effect even if it wasn't intended to discriminate. Certainly the framework of "disparate impact" that was magically created by the Department of Housing may be limited, but it was never strictly legal in the first place.

I'm more concerned about how the Supreme Court is adding in things that were never intended in a legislation by 'reading between the lines'. Disparate impact claims were never intended by the fair housing act, the theory was created by judicial activists and has never been tested in the Supreme court.

Sure, there will be less frivolous claims and people will have to higher more expensive lawyers to put out the same lawsuits, but this is clearly a victory for 'tenant rights groups'. Rather than having to fight over whether or not disparate impact exists and if it is protected (which is much more difficult to prove), people only need to fight for the former. Significant legal barriers have been removed.

I'm by no means an expert on this issue, and I always keep an open mind, and I welcome counterarguments to help me shape my beliefs.

Jun 28, 2015 - 12:49am

I agree with the Wall Street Journal's editorial on this topic almost entirely. It basically said what the OP said--that this ruling is entirely divorced (no pun intended) from the Constitution and is entirely based on emotion. But it also went on to say that the best thing to do is to move on, drop the subject and to take affirmative steps to ensure that individuals and private institutions get to maintain their religious liberty in the face of this cultural revolution. The editorial noted that in Justice Kennedy's majority opinion he said that gay marriage impacts no opponent and therefore they should essentially have no say against it, and that hopefully Kennedy would maintain this position when future cases come before the court where religious institutions and individuals are sued into complying with "anti-discrimination laws" (i.e. involuntary servitude)--Kennedy says that it doesn't impact opponents so hopefully he'll be consistent on that position.

For me, that's my biggest concern that people are forced against their will to participate in things that they find morally objectionable, whether it's abortion or gay weddings. I'm pro-choice on abortion, for example, but detest the idea that the government can pass a law mandating that private business owners violate their consciences by providing abortion drugs (or drugs they interpret as abortion drugs).

BTW, you just wait. Within a decade, there will be a serious push to strip religious institutions of their tax-exempt status for those organizations that don't condone gay marriage. If not by legislative action, then by IRS fiat--it will start selectively enforcing the rules against politicking. This ruling is not the end of this issue by a long shot. For the Left it's not enough to have gay marriage codified into the law--they will not be satisfied until the entire country condones the lifestyle, and for those who refuse the Left will seek to destroy them.

Jun 28, 2015 - 1:30am

I'm an atheist but am an ardent supporter of the freedom of religion and the right of religious individuals to abstain from activities that they find morally abhorrent. Liberals have tried to equate this with store owners refusing service to blacks during segregation, but that is a lazy flawed analogy. There is a clear line between outright discrimination and private citizens not wanting to be forced by the government to sell birth control pills for instance. Ultimately, the agenda of the Left is to impose its worldview on everyone, to punish those who refuse to accept their radical agenda, and eventually drive them out of the public sphere.

Jun 28, 2015 - 4:41pm

A bit melodramatic, no?

The spirit of the law and law itself was intended to evolve to fit future generations, or at least that's what the founding fathers who wrote it stated and fully acknowledged it was an imperfect and insufficient document. Viewing people equally in the eyes of the law isn't some revelation of emotion. It's a founding principle of the Constitution you are referring to, and so is the principle that the beliefs of one religion won't be inflicted onto others... "Congress shall make no law respecting an establishment of religion." Keep in mind the Constitution says all men were created equal, not women. But who would disagree with the current interpretation? They probably would've when it was written, which is my point.

The only emotion I see is GOP caterwauling, in an attempt to keep this a wedge issue for their conservative and religious base. I guess I'll be waiting to see this fear-mongering come to fruition, over my lifetime I've never seen any fear mongering out of the GOP be justified or proven correct but maybe it's different this time.

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Jun 28, 2015 - 6:43pm

Are you serious? Have you not seen the local "anti-discrimination" ordinances that have forced florists, photographers, and bakers to provide services that they find morally objectionable (and we're not talking about serving gay people--we're talking about forced active participation in gay wedding ceremonies)? The next fight from the Left is already upon us--involuntary servitude. This is already an issue and is not part of some right-wing paranoia.

What I find bizarre is that the Left can find and passionately defend new rights in the Constitution that actually don't exist, but things that are explicitly provided or prohibited, such as involuntary servitude, which is actually prohibited by the 13th Amendment, are just overlooked. The American Left sees the U.S. Constitution as a useful document sometimes to be manipulated to their whims and as a document to explicitly overlook when it doesn't suit them.

Jun 28, 2015 - 7:47pm

Yes, the Constitution is not a perfect document, and not every single issue of importance is addressed in it. However, the Supreme Court's role is to interpret that document, not to enact law or project their personal ideology onto a reading. And of course some cases are more clear cut while others are much more nuanced. Perhaps the best example of the former would be the seminal 1954 Brown vs. Board of Education decision, a unanimous ruling.

I disagree with your attempt to equate gay marriage with civil rights, equality for women, freedom from slavery. This is what the liberals have successfully done, thus portraying opponents as bigots on the same level as segregationists of the past. The fundamental difference in the view of us conservatives is that the aforementioned issues all revolved around core rights that eventually were expanded to accommodate other human beings. I'm not convinced that marriage is a core right because it is a social institution, not a political or economic freedom enshrined in the Constitution nor a moral "natural" right. If we wish to redefine marriage then there is a very easy clear way to do so: through a legislative process that creates new laws. Let me be absolutely clear on this. I have absolutely no problem with gay marriage and could care less who marries whom. Most conservatives don't either, so stop accusing us of being bigoted or somehow as being opposed to the right of gays to love whoever they want. That is at best a dishonest straw man argument.

Jun 29, 2015 - 9:27am


... entirely divorced (no pun intended) from the Constitution and is entirely based on emotion ...

as opposed to traditional marriage where a man and a woman negotiate and agree to a contract similar to big bang theory's sheldon (http://bigbangtheory.wikia.com/wiki/The_Relationship_Agreement)


For me, that's my biggest concern that people are forced against their will to participate in things that they find morally objectionable, whether it's abortion or gay weddings. I'm pro-choice on abortion, for example, but detest the idea that the government can pass a law mandating that private business owners violate their consciences by providing abortion drugs (or drugs they interpret as abortion drugs)

why stop there? why not have the business owner tell the employees what else they should do on their own personal time?


BTW, you just wait. Within a decade, there will be a serious push to strip religious institutions of their tax-exempt status for those organizations that don't condone gay marriage

Anything discriminatory should not be funded by tax dollars. Period.

Jun 28, 2015 - 8:56pm

That's not going to stop advocates. A lot of folks over on LGBT advocacy pages are salivating at the prospect of getting church's tax exempt status removed, and then finally bulldozing the churches.

I'd also argue that a LOT of people are severely misinformed about the LGBT movement, its origins, and what its actual goals are due it being an emotional charged issue and LGBT activists being extremely duplicitious regarding their originally stated plans.

My advice is to cut through all the bullshit in the media and go straight to the source: READ THE WRITINGS OF EARLY LGBT ACTIVISTS.

For starterse I suggest the book "After The Ball: How America will Conquer it's Fear and Hatred of Gays" (http://www.amazon.com/After-Ball-America-Conquer-Hatred/dp/0452264987)

The book was written to expound on a column published by two Harvard-alum LGBT activists titled, "The Overhauling of Straight America" which is readily available online. Here's some excerpts:

A media campaign to promote the Gay Victim image should make use of symbols which reduce the mainstream's sense of threat, which lower it's guard, and which enhance the plausibility of victimization. In practical terms, this means that jaunty mustachioed musclemen would keep very low profile in gay commercials and other public presentations, while sympathetic figures of nice young people, old people, and attractive women would be featured. (It almost goes without saying that groups on the farthest margin of acceptability such as NAMBLA, [Ed note -- North American Man-Boy Love Association] must play no part at all in such a campaign: suspected child-molesters will never look like victims.)

Now, there are two different messages about the Gay Victim that are worth communicating. First, the mainstream should be told that gays are victims of fate, in the sense that most never had a choice to accept or reject their sexual preference. The message must read: "As far as gays can tell, they were born gay, just as you were born heterosexual or white or black or bright or athletic. Nobody ever tricked or seduced them; they never made a choice, and are not morally blameworthy. What they do isn't willfully contrary - it's only natural for them. This twist of fate could as easily have happened to you!"

It continues

t a later stage of the media campaign for gay rights-long after other gay ads have become commonplace-it will be time to get tough with remaining opponents. To be blunt, they must be vilified. (This will be all the more necessary because, by that time, the entrenched enemy will have quadrupled its output of vitriol and disinformation.) Our goal is here is twofold. First, we seek to replace the mainstream's self-righteous pride about its homophobia with shame and guilt. Second, we intend to make the antigays look so nasty that average Americans will want to dissociate themselves from such types.

The public should be shown images of ranting homophobes whose secondary traits and beliefs disgust middle America. These images might include: the Ku Klux Klan demanding that gays be burned alive or castrated; bigoted southern ministers drooling with hysterical hatred to a degree that looks both comical and deranged; menacing punks, thugs, and convicts speaking coolly about the "fags" they have killed or would like to kill; a tour of Nazi concentration camps where homosexuals were tortured and gassed.

So basically...congratulations. If you believe that anyone who isn't rabidly in favor of gay marriage is a raving lunatic bigot, you bought the marketing campaign hook line and sinker.

And wrapping up the article

We have sketched out here a blueprint for transforming the social values of straight America. At the core of our program is a media campaign to change the way the average citizens view homosexuality. It is quite easy to find fault with such a campaign. We have tried to be practical and specific here, but the proposals may still have a visionary sheen.

There are one hundred reasons why the campaign could not be done or would be risky. But there are at least 20 million good reasons why some such program must be tried in the coming years: the welfare and happiness of every gay man and woman in this country demand it. As the last large, legally oppressed minority in American society, it is high time that gays took effective measures to rejoin the mainstream in pride and strength. We believe that, like it or not, such a campaign is the only way of doing so anytime soon.

And, let us repeat, time may be running out. The AIDS epidemic is sparking anger and fear in the heartland of straight America. As the virus leaks out of homosexual circles and into the rest of society, we need have no illusions about who is receiving the blame. The ten years ahead may decide for the next forty whether gays claim their liberty and equality or are driven back, once again, as America's caste of detested untouchables. It's more than a quip: speak now or forever hold your peace.

Best Response
Jun 28, 2015 - 11:12pm

I actually read the entire SCOTUS (Supreme Court of the US) opinion yesterday, so I figure I would walk you guys through it here.

The majority opinion did, I concede, sound a lot like romantic poetry and emotional crap. But I think that's just what happens when you have a case about marriage (lol). Also, I think that the opinion of the Court would be that "responsibility of the Court cannot be reduced to formula" and hence requires reasoned judgment based on history, context, and past cases, so it's necessary for them to talk about the importance of marriage, especially as previously argued in past cases.

What is the legal theory that the majority sets up in their opinion? They argue: "Under the Due Process Clause of the Fourteenth Amendment, no State shall 'deprive any person of life, liberty, or property, without due process of law.' The fundamental liberties protected by this Clause include most of the rights enumerated in the Bill of Rights. In addition these liberties extend to certain personal choices central to individual dignity and autonomy, including intimate choices that define personal identity and beliefs."

In other words, the SCOTUS majority opinion advanced a due process (14th amendment) legal theory and hence needs to provide that marriage is a "fundamental" due process right and that past precedent allows marriage rights to be extended to gays. Note that all of this discussion of this being a Congress issue makes no sense. If SCOTUS can prove the prior premises, then that proves SCOTUS has jurisdiction over the issue since due process rights are a courts issue and not a Congress issue.

The Court cites a large number of cases that prove precedent for marriage being a fundamental right. It isn't a strong, enumerated right like Freedom of Speech, but it is an fundamental, implied right that can be protected under the umbrella of more vague rights guaranteed by the Constitution like "liberty." Note that Scalia obviously thinks that this is B.S. but that's only because Scalia is a strict interpreter of the Constitution. However, most people reasonably believe that the 14th amendment allows Justices to allow for "implied rights." In past cases cited by the majority (Loving v Virginia, Zablocki v Redhale, Turner v Safley, and numerous others), SCOTUS affirmed the rights of various disenfranchised groups to marry on the basis of the same legal theory (that marriage is fundamental as a right and cannot be denied on the basis of the Due Process Clause). These were in SCOTUS cases in a variety of different contexts. In one case, somebody sued to be able to have interracial marriage. In another, somebody sued to be able to marry a prison inmate. In yet another, somebody sued to be able to marry despite being behind on child support payments from a previous marriage. In all cases, the court held that the right to marry is a fundamental, implied right falling under the 14th amendment, because it is essential our dignity, autonomy, and intimate identity (among a long slew of other reasons). For this reason, the SCOTUS ruled that, regardless of what people believe and do in the democratic process, people have the right to marry even if they are of a different race, are in prison, or are behind on the child support payments.

Past rulings have all presumed marriage is defined as between a man and a woman. The majority hence needed to prove that it makes sense to expand the definition to include gays. The argument that "the SCOTUS can't change definitions!" doesn't really make sense since the SCOTUS does this all the time. It's their job to change legal definitions in cases, for example, where these definitions impinge on people's Constitutional rights. The majority opinion argues that the REASONS used to support the 14th amendment legal theories for marriage cases in the past equally apply to homosexuals as well as heterosexuals. They provide a number of arguments for why this is the case. For example, past rulings have held that the right to marriage is intimate, affects future destiny, and is among the most important choices you will make and, therefore, it is a essential right for heterosexual couples. Past rulings have held that this applies whether you are black, in prison, and behind child support payments. It wasn't completely necessary in those past cases for these people to reproduce to prove the 14th amendment theory - just that these other groups did in fact need marriage to be a fundamental part of their autonomy, dignity, etcetera. The majority opinion points out that marriage for gays also serves all of these purposes. So, just like the right to marry can be extended to interracial couples (since after all, it's as important for the dignity of white-black couples as for the dignity of white-white couples), the majority Justices argued it should similarly be extended to homosexual couples on the basis of precedent.

Scalia and Roberts respond with the following arguments, none of which are very persuasive in my opinion:
- Marriage is a very old institution with a storied history (true!). It's clear that the Framer's all intended for marriage to be between a man and a woman (probably true also!). All historical definitions of marriage are that marriage is between a man and a woman (true!). Historical definitions of marriage desired for it to be for the purposes of procreation (probably untrue, but doesn't matter anyway!). From here Justice Alito says: "To prevent five unelected Justices from imposing their personal vision of liberty upon the American people, the Court has held that 'liberty' under the Due Process Clause should be understood to protect only those rights that are 'deeply rooted in this Nation's history and tradition.' And it is beyond dispute that the right to same-sex marriage is not among those rights." I understand this argument and it sounds reasonable. But, frankly, I didn't find this that persuasive since it looks like Alito just added the word "only" in that aforementioned quote to make it sound like a simple issue of going based on historical American culture (its obviously not lol but good try Alito). It is completely within dispute as to whether historical precedent supersedes the legal arguments made by the majority. In my naive view, it seems that Alito does a poor job arguing that it does in this particular case. There are obvious cases where 14th amendment theories have been used to extend rights in ways that are not historically grounded, so this is just a load of B.S. in my view.
- The Constitution doesn't explicitly say we have a right to marriage. For Scalia and people with a strict view of constitutional law, this might be enough to say "there's no right to marriage" and throw out the majority's legal theory. For most people, however, this isn't enough of an argument, since most people don't assume a strict view of Constitutional interpretation.
- Alito argues "Noting that marriage is a fundamental right, the majority argues that a State has no valid reason for denying that right to same-sex couples. This reasoning is dependent upon a particular understanding of the purpose of civil marriage." He then goes on to argue that the benefits of marriage that the majority claim make it fundamental to both gays and straight people "focuses almost entirely on the happiness of persons" but "is not the traditional one. For millennia, marriage was inextricably linked to the one thing that only an opposite-sex couple can do: procreate." This is somewhat reasonable, but it's probably not true. The majority cites a vast number of valuable purposes of marriage other than procreation. It's true that procreation is a very important part of marriage, but I think it's almost completely unreasonable to argue that it is the "only" or "most important purpose." So long as that is the case, I think that the majority is correct in asserting that the varied other valuable aspects of marriage allow it to be extended under the 14th amendment.

Alito needs to address the crux of the majority's argument, but I don't really think he or the other minority justices really do much other than complain to be quite frank. At the end of the day, I think that the majority opinion makes the strongest legal argument because, frankly, extending legal rights to gays is just a logical extension of past court decisions.

TL;DR: I do think there's something to be said about the SCOTUS acting in a supra-legislative way, so I understand your point OP. However, this argument doesn't work because the majority opinion successfully argued that marriage is a 14th amendment due process right which operates at a legal level above democratic process. To be clear, most of the people who are commentating on this issue have simply never read the actual arguments made by the Justices on this issue. If they had, we would stop hearing that argument, since it makes no sense given what was argued in SCOTUS.

Jun 28, 2015 - 10:46pm

Church and state should be seperate, right? Then can someome tell me why the govt is prohibiting gay marriage?

Plain fact is the govt has been in the discrimination business the second they got into the marriage business.

Only thing I'll say is I don't think this should force religious groups to marry gay people. But as this country stops believing in the spaghetti monster we should stop letting tax free groups tell us what to do.

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Jun 29, 2015 - 8:13am

Here's the problem with your argument:
The laws & effective laws (ie agency policy & by-rules) use "Marriage", "Spouse", etc. to define benefits, rights, and other requirements. This isn't saying "Under Catholicism marriage is defined as... " it's saying, 'hey- if you're using marriage as a test then gays must be included as well". Additionally for the separation of church & state argument... umm, you've heard of a marriage license? ie the state certifying that you're married? That's a breakdown of church & state there. So this, in essence, is restoring the balance that was broken before being gay became a political issue.

Plus, if you want a real legal argument, how about 'separate but equal' being unconstitutional since the 1960s. How is this any different? If your church won't give you the sacrament of marriage then that is their prerogative, but if the state won't give you a marriage license but wants to give you something that is 'effectively the same thing' (Civil Union)... that's government-sponsored segregation and has been illegal for quite some time.

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