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Does the States Interest in Gay Marriage Serve?

November 21, 2008 By: jaysays Category: Stupid Things People Say About Gays

I have focused heavily on the religious right in my arguments about gay marriage and have neglected the non-secular arguments.  Today’s quote is in reference to a purported non-secular argument and reads as follows:

Homosexual relationships do nothing to serve the state interest of propagating society, so there is no reason for the state to grant them the costly benefits of marriage, unless they serve some other state interest. The burden of proof, therefore, is on the advocates of gay marriage to show what state interest these marriages serve. Thus far, this burden has not been met.  — Adam Kolasinski

The most harsh point in his argument is where he places the burden of proof.  In law, burden of proof is everything, almost.  In his example, he argues that because “homosexual relationships do nothing to serve the state interest of propagating society… there is no reason for the state to grant them the costly benefits of marriage…”  However, there is no burden of proof in marriage law on heterosexual couples to prove their relationship will benefit the states interest.  Let’s look at due process and equal protection under the law.

LOVING ET UX. v. VIRGINIA, 388 U.S. 1 (1967) was a historic case in the battle for civil marriage rights for whites to marry blacks (or blacks to marry whites).  Loving states:

These statutes [statutes banning interracial marriage] also deprive the Lovings of liberty without due process of law in violation of the Due Process Clause of the Fourteenth Amendment. The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men. [emphasis added]

I make note, albeit somewhat sarcastically, that Loving does not say “pursuit of happiness between a man and a woman.”

Loving goes on to affirm that:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Civil Marriage is law.  To deny any person the equal protection of the law, without due process abridges “the privileges or immunities of citizens of the United States.”  In order for the law to deny such civil right, the State holds the burden of proof to show that such relationships would detriment society.  Mr. Kolasinski’s efforts to shift the burden of proof on those denied such liberties is false, misleading and improper under the 14th Amendment, Loving and good common sense.

Mr. Kolasinski is a Doctoral Student of Financial Economics.

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