Opinion snuck in earlier when Putin33 said "we're stuck with an 18th century concept of government in the 21st century" rather than "we have a robust, tested and adequately flexible basis for rule of law that has lasted 200+ years".

"Like ALGOL60, the U.S. Constitution is not only an improvement on its predecessors, but also on nearly all its successors."

And that's where opinion kicks in.

Prepare for pages full of which government is more succesful blah blah blah.

Oopsie. Weird mobile.

Putin33: Yet you spoke in general, not just about the States. You know very well that there are other countries in the world. And you were specifically denouncing courts for employing principles of constitutional equal protection. That's not at all as out there as other decisions in the States which involve constitutional interpretation.

tendmote: It's not flexible because it has hardly changed. It's only 'tested' because judges force constitutional interpretation where the constitution doesn't fit or isn't clear.

@ Putin33 and Draugnar

Okay, it was struck down under an equal protection clause, but that still doesn't make any sense to me. Under the legislation in question, anyone in Utah could get a straight marriage. How was this law an unequal protection of the population? It's not Utah's fault if gay people don't want a straight marriage.

Gunfighter06: The article covers that reasoning:

"
In his ruling, Judge Shelby said Utah failed to show allowing gay marriages would affect opposite-sex unions.

"In the absence of such evidence, the state's unsupported fears and speculations are insufficient to justify the state's refusal to dignify the family relationships of its gay and lesbian citizens," he wrote in the ruling.
"

@ JECE

But the judge completely failed to explain why gay couples are subject to unequal protection under the old law.

No gun, that is not a legal term, "straight marriage". Marriage is the term. And its legal definition in the US and Utah constitutions does not clarify sexual orientation. Therefore, denying gays marriage (when marriage isn't defined as between a man and a woman) is denying them equal protection.

What if this were denying interracial marriages, gun? Blacks can marry blacks and whites can marry whites, but the two can't intermingle. What if that were the argument. Is there any difference? Sorry, but your prejudice against another person strictly on the basis of their sexual orientation is an offense to me and my God.

Draugnar: Ha ha, since when did you turn liberal on this issue?

Draugnar's just being libertarian about this. What business is it of the government's who marries whom? Get Uncle Sam out of our bedrooms.

Exactly! Hecks gets it. The government has no business in marriage at all.

And JECE, I've always been for gay rights. Just review back over my 5 years on this site and look it up. Every time the subject comes up, I mention my friend Gary.

It'd be preferable if the government didn't put itself in the middle of registering and formalizing personal relationships anyway. But if they're going to insert themselves, they should minimize the degree to which they dictate how, when, where, or with whom to establish those relationships.

"Draugnar's just being libertarian about this. What business is it of the government's who marries whom? Get Uncle Sam out of our bedrooms."

Sigh, marriage confers thousands of legal protections, so if you're going to demand legal benefits via marriage, the government is going to be involved as to who gets to get those benefits.

If anti-statists didn't want this to happen they should have opposed turning marriage into a welfare program a long time ago. That ship has sailed.

"Yet you spoke in general, not just about the States."

Sure. But one of the reasons why other constitutional governments don't have the problem the States does is because their constitutions were/are newly approved. Basic Law is only a half century old. The Spanish constitution has only been in force since the 70s. It's easier to have a modern constitution when it's new made. Let me know how constitutionalism holds up in Spain 100 years from now. I bet you'll have the same problems the United States does. Certainly Portugal is already experiencing difficulties along that front.

"And you were specifically denouncing courts for employing principles of constitutional equal protection."

Because equal protection is vague and has been used more often than not to protect corporations, rather than individuals alleging civil rights abuses.

Just because I like the outcome this time doesn't mean I like the principle of judicial intervention. I'm trying not to be a hypocrite here.

@Putin,
Personally, I'd prefer that we sever legal protections from marital status and let them stand on their own. But to restate my prior point, I agree that as long as government-registered marriage is for anyone, it should be for everyone.

"The government has no business in marriage at all."

Then kindly hand over all the 1,000+ legal and tax benefits you get from being married.

"Under the legislation in question, anyone in Utah could get a straight marriage."

Which quite obviously denied same-sex couples the same legal protections as other couples. Hence the equal protection argument.

It makes sense to you, you just don't agree with it.

Tendmote:

"Correctness does not suffer wear and tear."

And yet you claimed you're not one of those Founding Father cultists. 18th century slaveowners and merchants are evidently politically infallible, are they?

Hecks:

"Personally, I'd prefer that we sever legal protections from marital status and let them stand on their own."

Well that doesn't make any sense because the state has an interest in encouraging family formation and protecting children, among other things tied to marriage. Detaching marriage from legal protection would be needlessly complicated. Because it makes for a cute slogan for those reflexively hostile to government.

@Putin,
I think you're misinterpreting what Draugnar and I are saying is the rational Libertarian reaction to same-sex marriage. A seemingly natural Libertarian reaction is to *support* same-sex marriage on the grounds that the individual, not the government, should determine what makes a relationship fit for recognition.

I'm not misinterpreting it. Libertarians fail to understand that any organization conferring recognition on something else doesn't take orders from those who might apply for recognition. They understand this when it comes to private organizations. They would never insist a church had to recognize a certain relationship, but they fail to extend that comprehension to government.

Individuals do not determine what makes a relationship fit for recognition anywhere or on anything. This libertarian argument falls completely flat.

@Putin,
"Well that doesn't make any sense because the state has an interest in encouraging family formation and protecting children, among other things tied to marriage."

Interesting. Well, my wife and I have been married for six years, and neither have nor want children. Tell me, then, does the government have the right or incentive to promote other marriages over mine because their marriages produce and protect children and mine doesn't? Maybe the government should prohibit me from marrying my wife because we don't intend to have kids? Maybe, to extend your argument to the point of absurdity, the government should force me and my wife to have children, because "the state has an interest in encouraging family formation and protecting children."?

Jeez, Putin, you've got me, ME, defending the Libertarians. I don't like being in this position.

Also, I think it's more than a little pedantic of you to argue with people who share your conclusion.

"Tell me, then, does the government have the right or incentive to promote other marriages over mine because their marriages produce and protect children and mine doesn't? "

I have a similar marriage, and yes the same does have this incentive in certain cases
More kids = bigger tax base. For developed countries with a top heavy population, they believe this is important.

"Maybe the government should prohibit me from marrying my wife because we don't intend to have kids?"

It's impossible for the government to know the intentions of those getting married. So such an idea is completely impractical.

"Maybe, to extend your argument to the point of absurdity, the government should force me and my wife to have children, because "the state has an interest in encouraging family formation and protecting children."?"

No, but the state does engage in a litany of economic inducements, typically, to encourage reproduction.

same = state

@ Draugnar

I oppose bans on interracial marriages, but I don't think a ban on interracial marriages is unconstitutional.

As for marriage not being defined as a man and a woman, isn't the fact that the state only offers hetero marriages a de facto definition?

@ Putin33

Everyone has a right to get married to someone of the opposite gender. How is this unequal to anyone? Couples don't have rights; individuals have rights.

Gunfighter06: Yes, that is addressed in pages 32-50. The best summaries are in pages 41-43 and 49-50

(You can also take a look at pages 13, 14, 16-18, 27-29 and 30-31.)

The decision was linked in the BBC article, too:
https://ecf.utd.uscourts.gov/cgi-bin/show_public_doc?213cv0217-90

@Gunfighter,
"Couples don't have rights; individuals have rights."
I think that's part of the question that's being decided. People's United ruled that because corporations are organizations of groups of people, corporations are entitled to the same speech protections as the individuals themselves. I think we're seeing a similar precedent being built here: that because couples are unions of two individuals, the same freedoms of association that apply to the individuals are also protected for the couple.

"Everyone has a right to get married to someone of the opposite gender. How is this unequal to anyone?"

Because not everyone feels sexual love towards a person of the opposite gender, obviously.

GF's argument sounds a lot like the "everyone has the right to be a Christian of a sect of their own choosing".