Why isn't gay marriage protected under the first amendment?

..when it says: "Congress shall make no law respecting an establishment of religion." For example.. you can't make gay marriage illegal because a religion believes it to be "wrong."

Update:

Lol guys.. please turn down the sass. This is an honest question. I am not homosexual.. I literally am just curious.

I know marriage is a religious thing to begin with, but married couples have rights given by the government. I mean.. that's what the whole argument is about anyway. If there was no difference between a civil union and a marriage, there would be no controversy, really.

14 Answers

Relevance
  • Mark
    Lv 7
    8 years ago
    Favorite Answer

    Because the US Supreme Court has said that government CAN ban polygamy and not violate the First Amendment as it does so. The case in which that happened was well over 100 years ago, Reynolds v. United States. Here's a Wiki summary of that case and the Court's ruling:

    http://en.wikipedia.org/wiki/Reynolds_v._United_St...

    Furthermore, there has been other rhetoric (known as obiter dictum) in two other cases which also mentioned that getting married is not a constitutional right, per se:

    "The State ... has an absolute right to prescribe the condition upon which the marriage relation between its own citizens shall be created, and the cause for which it may be dissolved." -- Pennoyer v. Neff, 1877.

    "Marriage, as creating the most important relation in life, as having more to do with the morals and civilization of a people than any other institution, has always been subject to the control of the legislature." -- Maynard v. Hill, 1888.

    State legislature's control over marriage is LESS than absolute now, though, because of a few 20th Century rulings, like Loving v. Virginia, 1966, Zablocki v. Redhail, 1978, and Turner v. Safley, 1986, but none of those cases were decided on the basis of the First Amendment. None of those cases claimed that a right to get married is as absolute as the 19th Century opinion had claimed that a state government has absolute power over marriage. So states STILL have SOME control over dictating who can marry whom.

    • Login to reply the answers
  • 8 years ago

    How WOULD gay marriage be protected under the first amendment? Is being gay a religion? Not according to those who claim to be genetically predisposed.

    If, according to you, the no establishment clause protects gay marriage some how, can you reconcile the free exercise clause? The important part you left out - "or prohibiting the free exercise thereofโ€. Congress can not compel individuals to recognize gay marriage within their religious institutions.

    If the 'marriage controversy' is all about the 'rights given by the government', in essence its all about the Benjamins, then marriage has been reduced to contract law and should be treated thus. Think of the money savings. No need for child tax credits, all sorts of different filing statuses with the IRS, etc. Anyone could 'marry' anyone else for whatever reason. There would be no such thing as marriage fraud.

    Then again, there would be even fewer families since the state would, as it has already begun, take over that role.

    The purpose of a government recognizing marriage traditionally is to foster the natural growth of the population along with a economically stable structure to accomplish that goal. Once the primary purpose of marriage is no longer to have children, we arrive where we are now. Its all about the Benjamins.

    • Login to reply the answers
  • Anonymous
    8 years ago

    I think you have a number of misconceptions here.

    First of all, the meaning of "Congress shall make no law respecting the establishment of religion" means that there will be no State sponsored religion - i.e., like the Church of England, or Catholicism during the crusades.

    There will be times that the civil laws of the US are in conflict with certain religious practices - Mormonism, for example, embraces bigamy; Voodoosim entails the ritual slaughter of animals, some of the more conservative sects of Islam embrace Sharia law, whose tenets conflict with our equal rights laws. It happens.

    The idea of gay marriage is relatively new - at least in the public eye. The establishment of marriage is hundreds, maybe thousands of years old. The fact that we are debating the issue so heavily and are able to question our laws and our constitution with regard to it is to our credit as a nation.

    Nor is gay marriage illegal in the traditional sense of the word. While it's true that in many states a gay marriage is not recognized in the same way as a heterosexual marriage in terms of tax treatment, insurance benefits, and certain other fiscal and social benefits, no gay couple will ever be arrested, fined or thrown in jail for their behavior. There's a difference between something that is "illegal" and something that just isn't recognized within the standard definition of the law.

    I believe that the solution lies not in the re-definition of the word "Marriage", but in the re-definition of the word "Civil Union", and how that pertains to all of us. I see no reason for the government to base any benefit or lack thereof on whether or not two people are sleeping together. I think that all of us should be allowed a 'Civil Union" with the partner of our choice - whether it be gay, straight, asexual, parent-child, brother-sister - whatever. If there is a tax benefit offered to two people who are "doing it" there should be the same benefit offered to two people who are not.

    Marriage then can remain a spiritual commitment between two people in love outside of any government interference.

    Source(s): "c
    • Login to reply the answers
  • Bill
    Lv 7
    8 years ago

    Actually it's the 14th Amendment that protects marriage for homosexuals.

    The First Amendment concerns (among other things) freedom of religion. But you don't actually need any religious blessing to get married under the law. And the government cannot force any church/synagogue/temple/mosque or whatever to perform any marriage it doesn't approve of. You may wat to get married in a church, but you need not. That's entirely your choice.

    However, the government is not allowed to discriminate without a rational basis. The 14th Amendment guarantees equal protection under the law and equal rights. If the government is going to offer certain people the benefit of marriage, it must offer everyone those benefits unless it has a very compelling reason not to. Homosexuals have as much right as heterosexuals do to gain the tax benefits, estate law benefits, hospital visitation rights, insurance benefits, etc., of joining their lives and property to their significant other.

    • Login to reply the answers
  • How do you think about the answers? You can sign in to vote the answer.
  • Doug B
    Lv 7
    8 years ago

    Because marriage is both a religious and secular institution.

    The better place to look is the Due Process clause of the 14th Amendment. That's the one that requires the equal application of all rights and privileges. There is a raft of court decisions upholding that marriage is a right, and that any challenge to that right has to be decided on a case by case basis; e.g. you need to show why a person cannot be married to a specific other person, you can't ban all people based on a common identifying trait.

    • Login to reply the answers
  • 8 years ago

    Because Marriage has nothing to do with religion as far as the government goes. It is more along the lines of to people legally incorporating

    Gays can marry all they want in any church they can its just not legally recognized

    • Login to reply the answers
  • Anonymous
    8 years ago

    Because marriage is a religious thing to begin with. It might be inconvenient but that's how it is. There was never any secular form of marriage, it all derives from religious doctrines. It's not about making gay marriage illegal, it's about re-defining something that's religious. Like for example if you wanted to have Catholic Mass with by eating soup & drinking cool-aid, it's against religious tradition. You would have to call it something other than Mass. Also, the nation was founded before Marxist-subversion. Most of them were modernists who knew that sexual perversion would shatter any hope of civilization beyond a capitalistic pyramid scheme. So if gay people want to merge buttsex with "holy matrimony" they have to call it something else. If I try to bring pedophilia, bestiality or bondage porn into a church or a Mosque, it just doesn't make sense. Remember, separation of church & state. It's the same principle as when atheists fight to take the word "Christ" out of Christmas. It makes no sense. However, you can just as easily worship Santa Clause under an Illuminati pyramid & have just as much fun without trying to destroy a religious holiday.

    @JOE: If marriage were a product of secular government, then it would be illegal not to be married, at least in most cases. But it's not. Marriage is about morality, sanity & preservation of the human race. It's not until you get a monolithic conspiracy *against* humanity that you have homosexual marriage & such.

    • Login to reply the answers
  • Hazard
    Lv 5
    8 years ago

    But you can make gay marriage illegal because the government and the people (Some of whom may be influenced by religion) believe it is wrong.

    • Login to reply the answers
  • 8 years ago

    You're absolutely right.

    It's discrimination, as it's a law instated against a specific minority group in favor of a particular religious faction. In other words, it's a law pressed upon an individual due to the religious and cultural preferences of others.

    • Login to reply the answers
  • 8 years ago

    There is no such thing as gay marriage. Gays are creating the notion of gay marriage and trying to make it out to be some sort of constitutionally protected right.

    • Login to reply the answers
Still have questions? Get your answers by asking now.