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Is Banning Same-Sex Marriage Unconstitutional?

February 7, 2012

Evan Hass posted an argument on facebook that took off like wildfire. Lots of my facebook friends have posted it up. He critiques the “marriage is sacred” argument against same-sex marriage. For some reason some people argue that same-sex marriage would violate the “sanctity of marriage.” You can find his original status update here. This is what he said:

same sex marriage sacred

Does this argument work? Some very educated people think not. However, I think it’s possible to defend the argument.

First, it is true that the belief that marriage has an eternal definition as between one man and one woman as ordained by God is a common belief among many Christians (and perhaps some other theists). This argument in and of itself is not unconstitutional.

The first amendment states, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

What is relevant here is not that congress can’t respect an establishment of religion, which was posted above. What is relevant is that the free exercise of religion shouldn’t generally be restricted by the government (and the government shouldn’t generally show favoritism towards a particular religion). Some religions (or non-religions) state that we have a right to same-sex marriage. To ban same-sex marriage is unconstitutional insofar as it would favor one religion over another for no good reason. (Of course, there can be secular reasons to restrict religious practices when they would harm others.)

I believe that the argument above implies that the argument against same-sex marriage (that God doesn’t like it) would be an inadequate (and therefore unconstitutional) reason to deny the right to same-sex marriage because it would restrict our right to practice our religions (or non-religions) that state we have a right to same-sex marriage.

If same-sex marriage hurts people, then perhaps we do have a reason to deny people the right. However, that seems unlikely. We currently have no evidence that same-sex marriage hurts anyone.


First, it was brought to my attention that the original argument is either deceptive or incomplete insofar as it doesn’t mention the fact that “sanctity” has a definition not mentioned — saintly or very virtuous. I think this oversight is not serious because such a definition of “sanctity” has nothing to do with same sex marriage. I don’t see any reason to ban same sex marriage involving the “saintly” or “very virtuous” elements of marriage.

Second, the argument above is not a good argument that banning same sex marriage is unconstitutional. It is merely a refutation of a bad argument. For an argument as to why banning same-sex marriage is unconstitutional, go here.

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