Fiscal Conservatism: Is banning Same Sex Marriage unconstitutional?

"The three-judge panel of the 1st U.S. Circuit Court of Appeals in Boston ruled that the provision defining marriage as between a man and woman is unconstitutional in that it denies gay couples the rights granted to heterosexual couples."

Claim: It infringes the due process and equal protection clause

Fact: The debate over same sex marriage is actually what marriage is. No one can claim a breach of liberty, right, or other notions without first answering this question. to claim a liberty has been violated, marriage must be defined."[1] As Robert George, Sherif Girgis, and Ryan Anderson continue:

""Any legal system that distinguishes marriage from other, nonmarital forms of association, romantic or not, will justly exclude some kinds of union from recognition. So before we can conclude that some marriage policy violates the Equal Protection Clause, or any other moral or constitutional principle, we have to determine what marriage actually is and why it should be recognized legally in the first place. That will establish which criteria (like kinship status) are relevant, and which (like race) are irrelevant to a policy that aims to recognize real marriages. So it will establish when, if ever, it is a marriage that is being denied legal recognition, and when it is something else that is being excluded."[1]

This is the most common quote I think that has been used in the SSM debate, and the thing is it works. Before claiming whether or not this right is being infringed we must ask even if the right applies. Marriage is by nature a heterosexual procreative union meant to lead to other child rearing acts. Marriage is a heterosexual union. Same Sex "marriage" does not exist therefore no right is being infringed.

Also arguing any loss of rights actually begs the question if the right even exists. Only if this right exists are they actually being deprived of something. Even if this right exists, the equal protection does not apply (see quote).

Also this view falsely argues all discrimination is unjust discrimination. Like all other rights it is NOT absolute. Freedom of speech can be taken away. Gun rights for criminals can also be taken away. Even if we have this pre-conceived notion that the right exists one could argue that it is not absolute (it is, it only applies to heterosexuals). One could also argue discrimination is NOT even bad, as only unjust discrimination is inherently bad.

So as we can see this claim is a moot, and before you claim liberty is being deprived you have to define what marriage is. As marriage by nature is ONLY heterosexual one can argue the right to marriage does not apply. This liberal claim is illogical.

Claim: A right to marriage exists

Fact: I personally agree, no doubt that the gays and myself hold this to be true. However, our views do separate and my view here is not self refuting. Even though we agree it is a right, we differ on what marriage entails. (see above claim, it is not self defeating).

But it is often argued in courts same sex marriage is a right, and they should get access to the institution, even if it means a redefinition. Now in my opinion this simplifies the issue, as it means they will be forced to define marriage is just a loving relationship. But this is faulty as this definition means we would have to accommodate for many other couples. And back to what I have been saying this whole time:

"Secondly, one cannot claim to have a right to some X unless one first knows what X is."[2]

X is a procreative natural heterosexual union. The point being you cannot have a right to X unless you either define X to your advantage or get rid of X altogether. So marriage is a right, but not for homosexual couples.

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Well, that's how illogical gay marriage is folks.

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[1] Sherif Girgis, Robert P. George, and Ryan T. Anderson, “What is Marriage?” Harvard Journal of Law and Public Policy 34, no. 1 (Winter 2010)

[2] http://theosophical.wordpress.com/2010/11/18/marriage-same-sex-marriage-and-fundamental-rights/