You are a married gay couple on vacation in a state which banned gay marriage

[badtoworse]

42. That is your argument, and a rather weak one at that.

Last edited Wed May 9, 2012, 10:40 PM - Edit history (1)

The constitution is silent about marriage. It does not grant the federal government any power to establish laws regarding marriage, nor does it prohibit the states from doing so. Under the 10th Amendment then, the power to establish laws concerning marriage are reserved for the states.

The states are required to provide equal protection under their laws under the 14th Amendment. The question of whether laws prohibiting same sex marriage violate equal protection and are thus unconstitutional has not been finally adjudicated. The Court of Appeals for the 9th Circuit has ruled that California's Prop 8 does violate the equal protection provisions, but stayed its ruling pending an appeal to the SCOTUS. I'm not sure if the SCOTUS has decided to hear the case or not. Perry v. Brown is the case in question.

To say that prohibiting same sex marriage establishes a state sponsored religion is just ridiculous. Virtually every major religion opposes same sex marriage and some people are opposed just because they don't want the definition changed. For whatever reason, same sex marriage usually loses at the ballot box. Nobody changes their religion as a result and there is no new religion created, so I don't see where a state religion is being established. People are opposed to other things that various religions also oppose (e.g. murder, rape, theft, etc.) but establishing laws prohibiting those things does not constitute establishing a religion, does it?

The SCOTUS may ultimately rule in favor of same sex marriage, but if it does, I doubt it will be for the reasons you state.