Author Topic: is it unconstitutional to ban gay marriage?  (Read 62595 times)

mek42

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is it unconstitutional to ban gay marriage?
« on: May 03, 2008, 01:51:09 PM »
Specifically the first - "Congress shall pass no law favoring an establishment of religion nor prohibit the free practice thereof."

All of the arguments against gay marriage that I am aware of are religious in nature.  I am genuinely interested in hearing some cogent, non-religious arguments against gay marriage.

If all of the arguments against gay marriage are religious in nature, if Congress passed a law banning gay marriage, wouldn't it be a violation of the first amendment?

Having said this, I do think that forcing churches to perform gay marriages would likewise be a violation of the first amendment.

Zardozimo Oprah Bannedalas

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Re: is it unconstitutional to ban gay marriage?
« Reply #1 on: May 03, 2008, 02:03:25 PM »
Reproduction doesn't (normally) happen in a gay marriage. The government likes reproduction, as this provides more taxpayers to pay for the old people's medicine, serve in the .mil, provide buxom interns for Washington officials. Hetero married folk can (and often do) reproduce. Thus the .gov gives them certain advantages, tax credits... etc.
That's why the government likes marriage - they get something from it.

That's the argument as I remember it.

Headless Thompson Gunner

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Re: is it unconstitutional to ban gay marriage?
« Reply #2 on: May 03, 2008, 02:21:25 PM »
Not this $%^& again...

Chief Squattanpoo

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Re: is it unconstitutional to ban gay marriage?
« Reply #3 on: May 03, 2008, 02:26:13 PM »
One protocol to amend the Constitution completely bypasses Congress. This procedure, amendment by 3/4 of state legislatures, has never been used but would sidestep the "Congress shall make no law" clause. In this sense, yes, a ban on gay marriage would be constitutional.

If the year was 1850, there would be no way to make an anti-gay marriage amendment because then marriage was viewed as an inextricable part of religion; any limitation on who could marry would therefore prohibit the practice of religion but only if a religion could be found that allows gay marriage. Was there such a religion in 1850 and is there one in 2008? None that I'm aware of, unless someone has cooked up Gayslam or something. In other words, if marriage is part of religion, one has to prove that gay marriage is a religious practice to be protected. (Lateral question: Who defines what a legitimate religion is? Same as we can't make up religious holidays to get off work on any given day, there must be some standard.)

In 2008, such a case would be a perplexing conflict of postmodern jurisprudence. These days marriage is viewed less as religious and more as a business partnership among two adults (hopefully, some lunatics in Texas notwithstanding). For instance, you can get married by a judge---distinctly nonreligious. In this way, one can argue that marriage is not a religious practice and is not subject to protection from the First Amendment. However---and here's the kicker---such an interpretation of the law is certainly the anti-originalist viewpoint (i.e., judicial activism) but the ones who are most likely to read a 1791 text into 2008 English are likely to be the most sympathetic to gay marriage.

As people who think critically, we understand that there is a difference between what we say and what we mean; that words are an imperfect expression of an idea. We know that the Founding Fathers wrote in 1791 English and we should read their language in 1791 English in the context of late-eighteenth century society. I believe the Founders would have grouped marriage and religion. In this case, the originalist interpretation would be "pro-gay" (and may raise hackles). However, I believe it is the correct interpretation and that any anti-gay marriage amendment cannot be passed in the conventional way.

A better question would be: Why is the government in the marriage business anyway? Where in the Constitution does it say that the .fed or the States get to give you permission to marry through a license? Weren't marriage licenses instituted as Jim Crow laws to prevent interracial marriages anyway?

De Selby

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Re: is it unconstitutional to ban gay marriage?
« Reply #4 on: May 03, 2008, 02:30:14 PM »
It depends on how you view due process-

Some see it as requiring the government to justify a compelling interest before it interferes in private matters, like personal relationships.  They cite the Griswold line of decisions as justification.

Others think that only specifically enumerated freedoms and interests are protected, so only the bare minimum in terms of government justification will serve to satisfy any constitutional problems with something like a gay marriage or gay sex ban.

Hard to say who's going to win in the future.  But Scalia was right-if you can't ban gay marriage, there are lots of other things you can't ban either...and it may be that a majority of the public isn't prepared to accept that fact.
"Human existence being an hallucination containing in itself the secondary hallucinations of day and night (the latter an insanitary condition of the atmosphere due to accretions of black air) it ill becomes any man of sense to be concerned at the illusory approach of the supreme hallucination known as death."

cosine

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Re: is it unconstitutional to ban gay marriage?
« Reply #5 on: May 03, 2008, 03:02:34 PM »
There have been long threads on this subject in the past. That being the case, this thread will be watched closely. Debate as you will, just remember this is ArmedPoliteSociety.
Andy

stjeanp

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Re: is it unconstitutional to ban gay marriage?
« Reply #6 on: May 03, 2008, 03:14:08 PM »
Specifically the first - "Congress shall pass no law favoring an establishment of religion nor prohibit the free practice thereof."

Wow, first post and I really jump in.

Not specifically answering your question but IMO the State has no business being involved in marriage, regardless of who is getting married.  That's a church thing, period.

The state should set up some means of allowing the happy couple to obtain the the property rights, power of attorney, financial rights, etc. that are currently wrapped up in the State's definition of "marriage".

Once the State sets that up, the churches should be allowed to marry anyone they want, provided it doesn't violate laws already on the books like age of consent, etc.

It's short, sweet, solves all the problems, and because of that will probably never happen. Sad

Pat

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Re: is it unconstitutional to ban gay marriage?
« Reply #7 on: May 03, 2008, 03:51:35 PM »
the state is in the biz  i got married first time by a government official in a state owned courthouse

there is a reason often hidden that needs be looked at. sanctioning gay marriage has legal and financial fallout. insurance eligibility on the job for couples would affect the bottom line. the change would require a reexamination of legal precedent and procedure  particularly in regard to inheritence and child custody.

i'm a civil union guy myself . 
It is much more powerful to seek Truth for one's self.  Seeing and hearing that others seem to have found it can be a motivation.  With me, I was drawn because of much error and bad judgment on my part. Confronting one's own errors and bad judgment is a very life altering situation.  Confronting the errors and bad judgment of others is usually hypocrisy.


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mek42

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Re: is it unconstitutional to ban gay marriage?
« Reply #8 on: May 03, 2008, 04:09:59 PM »
What do you consider to be the difference between "civil union" and "marriage"?  I see them as the same and don't understand the big hullabaloo.

stjeanp

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Re: is it unconstitutional to ban gay marriage?
« Reply #9 on: May 03, 2008, 04:19:01 PM »
What do you consider to be the difference between "civil union" and "marriage"?  I see them as the same and don't understand the big hullabaloo.

A civil union done in one state may or may not be honored by another state, on a state by state basis.

A marriage which is done in one state is honored in all states.

Seems like a good reason for a little hullabaloo... Smiley

cassandra and sara's daddy

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Re: is it unconstitutional to ban gay marriage?
« Reply #10 on: May 03, 2008, 05:01:55 PM »
a civil union , one recognizable in all states, provides a way to unravel the legal complexitys in a new arena, without having to try to make em conform to the marriage model. it would allow couples ssame sex or otherwise a way to qualify for benifits etc. and not to be overlooked it gets folks from point a to point b in a way that doesn;t threaten other folks and generate a lotta unneeded static and confrontation. reallity is a good many folks aren't gonna sign off on same sex marriage.  to quote a wise old hill billy "leave em a craqck to crawl into". civil unions do that . now unless you are gavin whtshis name in san francisco and youe motive is deliberate confrntation to get you your 15 mins of fame whats the harm in allowing those folks to be happy while you get all the benifits you seek
It is much more powerful to seek Truth for one's self.  Seeing and hearing that others seem to have found it can be a motivation.  With me, I was drawn because of much error and bad judgment on my part. Confronting one's own errors and bad judgment is a very life altering situation.  Confronting the errors and bad judgment of others is usually hypocrisy.


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grampster

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Re: is it unconstitutional to ban gay marriage?
« Reply #11 on: May 03, 2008, 05:30:08 PM »
I'm wondering if tax policy were changed to treat every tax payer equally, whether married or single, exercising presently lawful partnership agreements as in a business, (that's what marriage is at it's core; a partnership agreement.) powers of attorney and wills and trusts wouldn't solve every problem except the healthcare one.  Health care actually ought to be like any every other insurance: purchased by individuals after shopping around in the market place.  If employers wanted to kick in on the premium for the employee as a benefit, well, ok.  Makes an employer that does this a prime place to work and lets the employer off the hook to manage a plan.

Imho, the argument is less about the equality issues that are the trademarks of the argument than the desire by homosexuals to force being declared "normal" whatever that is.  Normal isn't the issue though, it's equal protection under the law, a basic human right in our Republic.  I've had discussions with friends who are gay.  The response I usually get is "Why do I have to do all these things (mentioned above) just to get the same benefits that you do?"  My answer to that is because I have to do them too, except for the tax policy in order to make the laws benefit me and those I feel I am responsible for.  I have a partnership agreement: mine is called marriage.  So get a lawyer and draw one up, call it what you want.  It's cheaper than a wedding, actually and you don't need a license, blood test or pre-marital counseling.  You can have the partnership listed as a beneficiary on a life insurance policy.  Beneficiaries have to have an insurable interest.  A partnership agreement creates that.  I have a will a trust and general power of attorney and poa for health care.  Only a fool would not have these documents prepared, gay or hetero.

So lobby the government to change the tax policy so everyone is treated the same, married or not.  Reformation of the health care system to make it competitive for individual purchases would work better than a socialist plan.  Medicare is already doing this for SS recipients.  Competition has created plans that provide more benefits for the medicare premium if you want to frog around shopping it.

Problem is solvable without all the hoo haa.  But then, some folks want the hoo haa.  As a heterosexual, I've never felt the need to broadcast my sexual deviancy  shocked grin angel proclivities.  I really don't think anyone really gives a rat's behind, actually.  So I've always wondered why some homosexuals feel the need to broadcast theirs.  Not gaining any support by doing that, Alice.

Just my .02
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mek42

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Re: is it unconstitutional to ban gay marriage?
« Reply #12 on: May 03, 2008, 05:39:20 PM »
With the universally recognized civil union idea, would every couple (regardless of orientations) have a civil union with marriage no longer being a word recognized by the state?  Would marriage then be the province of religions whereby a couple who got married in a church would also automatically be civil unionized in the eyes of the state?

Regarding health care - without employer based family health plans, there are going to be way more children going without needed healthcare than there are already.  I agree that financial ramifications should be a key consideration in deciding whether or not to have children, but I do not think this is a widely held view.

stjeanp

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Re: is it unconstitutional to ban gay marriage?
« Reply #13 on: May 03, 2008, 05:52:04 PM »
With the universally recognized civil union idea, would every couple (regardless of orientations) have a civil union with marriage no longer being a word recognized by the state?  Would marriage then be the province of religions whereby a couple who got married in a church would also automatically be civil unionized in the eyes of the state?

That would be the ideal in my Perfect World(tm) but the current patchwork of states implementing civil unions and other states passing laws stating that they won't recognize them worries me.

I'm definitely not a Constitutional scholar but it seems to me that there's something there that says that the states should not be able to do that, kind of like concealed carry permits.  And then the Feds get involved to sort things out.

Beware, here be dragons.

RadioFreeSeaLab

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Re: is it unconstitutional to ban gay marriage?
« Reply #14 on: May 03, 2008, 10:33:42 PM »
Quote
A better question would be: Why is the government in the marriage business anyway? Where in the Constitution does it say that the .fed or the States get to give you permission to marry through a license? Weren't marriage licenses instituted as Jim Crow laws to prevent interracial marriages anyway?
Exactly.  I don't know exactly how I feel about homosexuals marrying.  But my biggest beef is the government licensing marriage.  Get. Out. Of. My. Bedroom. 

gunsmith

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Re: is it unconstitutional to ban gay marriage?
« Reply #15 on: May 03, 2008, 11:33:36 PM »
Well, I didn't read the whole thread yet, busy at work.
But I would be in favor of Conservatives passing a gay marriage bill with a nation wide ccw reciprocity attached.
That way the libs would be forced to accept it grin

edited for clarity.
In a thread long ago shut down in THR by drifting off topic, I had a great idea.
A conservative can either poison pill a liberal bill in favor of gay marriage by introducing a nation wide reciprocity for ccw.
Marriage gets nationwide reciprocity already so it would fit right in.
OR.
A conservative can create a bill for gay marriage, be considered a maverick by the lib media and stick a few lines in it creating nation wide ccw reciprocity ...
We win because we get reciprocity, liberals (or gay conservatives ) win.
I wish I had the ear of a brave congressman.
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LAK

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Re: is it unconstitutional to ban gay marriage?
« Reply #16 on: May 04, 2008, 03:11:17 AM »
Quote
All of the arguments against gay marriage that I am aware of are religious in nature.
If you include the word nature in the discussion it is clear that all arguements are not only religious. Homosexuals do not reproduce, because they can not reproduce. Their misuse of their reproductive organs is not natural at all - and extremely unhealthy. 

Marriage is an act that forms the foundation of the smallest unit of civilized society; the family. Homosexuals do not produce offpring - children.

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41magsnub

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Re: is it unconstitutional to ban gay marriage?
« Reply #17 on: May 04, 2008, 04:08:56 AM »
What I don't get is why some folks are so threatened by something other folks do that will not affect them in the slightest.  I even find gay folks a little creepy at times, but that is no excuse to deny them the same legal and social rights as a couple that regular folks get.

gunsmith

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Re: is it unconstitutional to ban gay marriage?
« Reply #18 on: May 04, 2008, 05:39:20 AM »
Quote
What I don't get is why some folks are so threatened by something other folks do that will not affect them in the slightest.
Amen!
Politicians and bureaucrats are considered productive if they swarm the populace like a plague of locust, devouring all substance in their path and leaving a swath of destruction like a firestorm. The technical term is "bipartisanship".
Rocket Man: "The need for booster shots for the immunized has always been based on the science.  Political science, not medical science."

Perd Hapley

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Re: is it unconstitutional to ban gay marriage?
« Reply #19 on: May 04, 2008, 06:19:08 AM »
Specifically the first - "Congress shall pass no law favoring an establishment of religion nor prohibit the free practice thereof."

All of the arguments against gay marriage that I am aware of are religious in nature. 

If all of the arguments against gay marriage are religious in nature, if Congress passed a law banning gay marriage, wouldn't it be a violation of the first amendment?

Where did you find this "first amendment"?  Did you just type it out from memory?  I thought it read,
"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof..."

I find your reading of the first amendment to be breath-takingly broad.  Prohibiting some action from a religious motive, even if it were wrong on other grounds, would not seem to be an establishment of religion.  Nor would it seem to prohibit free exercise of religion. 

Quote
I am genuinely interested in hearing some cogent, non-religious arguments against gay marriage.

I have some.  I have introduced them here, before.  I have learned that it usually amounts to "pearls before swine."  If you can read my arguments in an open-minded way, without reading things into them, I might be persuaded to do so again.   
"Doggies are angel babies!" -- my wife

gunsmith

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Re: is it unconstitutional to ban gay marriage?
« Reply #20 on: May 04, 2008, 06:34:19 AM »
Quote
Prohibiting some action from a religious motive, even if it were wrong on other grounds, would not seem to be an establishment of religion.  Nor would it seem to prohibit free exercise of religion.

If this quote is found nailed to the head of a liberal who got me angry on a bad day..... please don't tell them where to find me! angel police
If I am caught, well...
I am just going to say "fistful made me do it"
Politicians and bureaucrats are considered productive if they swarm the populace like a plague of locust, devouring all substance in their path and leaving a swath of destruction like a firestorm. The technical term is "bipartisanship".
Rocket Man: "The need for booster shots for the immunized has always been based on the science.  Political science, not medical science."

cassandra and sara's daddy

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Re: is it unconstitutional to ban gay marriage?
« Reply #21 on: May 04, 2008, 08:36:01 AM »
i believe that applying " something other folks do that will not affect them in the slightest."
to be at best wishful thinking
It is much more powerful to seek Truth for one's self.  Seeing and hearing that others seem to have found it can be a motivation.  With me, I was drawn because of much error and bad judgment on my part. Confronting one's own errors and bad judgment is a very life altering situation.  Confronting the errors and bad judgment of others is usually hypocrisy.


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41magsnub

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Re: is it unconstitutional to ban gay marriage?
« Reply #22 on: May 04, 2008, 08:50:46 AM »
i believe that applying " something other folks do that will not affect them in the slightest."
to be at best wishful thinking

Please explain how or is that a prejudice coming through?  Please explain how what somebody else does in the bedroom or combines resources into a partnership should matter to you at all?

Ok..  you did explain.  The arguments are flawed but I guess you tried.  So what if the costs go up (I doubt they will)?  Should folks who swing the other way have fewer rights that those that don't? 

Sindawe

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Re: is it unconstitutional to ban gay marriage?
« Reply #23 on: May 04, 2008, 09:46:24 AM »
Quote
Their misuse of their reproductive organs is not natural at all - and extremely unhealthy.

BWAHAHAHAHAHA!!  Dude, stop bogarting what ever it is you've been smoking and share it with the rest of us!

The natural world holds a contrary opinion it seems.

Quote
1,500 animal species practice homosexuality
 
Published: Monday, 23-Oct-2006
    

Medical Science News
 

Homosexuality is quite common in the animal kingdom, especially among herding animals. Many animals solve conflicts by practicing same gender sex.

From the middle of October until next summer the Norwegian Natural History Museum of the University of Oslo will host the first exhibition that focuses on homosexuality in the animal kingdom.

"One fundamental premise in social debates has been that homosexuality is unnatural. This premise is wrong. Homosexuality is both common and highly essential in the lives of a number of species," explains Petter Boeckman, who is the academic advisor for the "Against Nature's Order?" exhibition.

The most well-known homosexual animal is the dwarf chimpanzee, one of humanity's closes relatives. The entire species is bisexual. Sex plays an conspicuous roll in all their activities and takes the focus away from violence, which is the most typical method of solving conflicts among primates and many other animals.

"Sex among dwarf chimpanzees is in fact the business of the whole family, and the cute little ones often lend a helping hand when they engage in oral sex with each other."

Lions are also homosexual. Male lions often band together with their brothers to lead the pride. To ensure loyalty, they strengthen the bonds by often having sex with each other.

Homosexuality is also quite common among dolphins and killer whales. The pairing of males and females is fleeting, while between males, a pair can stay together for years. Homosexual sex between different species is not unusual either. Meetings between different dolphin species can be quite violent, but the tension is often broken by a "sex orgy".

Homosexuality is a social phenomenon and is most widespread among animals with a complex herd life.

Among the apes it is the females that create the continuity within the group. The social network is maintained not only by sharing food and the child rearing, but also by having sex. Among many of the female apes the sex organs swell up. So they rub their abdomens against each other," explains Petter Bockman and points out that animals have sex because they have the desire to, just like we humans.

Homosexual behaviour has been observed in 1,500 animal species.

"We're talking about everything from mammals to crabs and worms. The actual number is of course much higher. Among some animals homosexual behaviour is rare, some having sex with the same gender only a part of their life, while other animals, such as the dwarf chimpanzee, homosexuality is practiced throughout their lives."

Animals that live a completely homosexual life can also be found. This occurs especially among birds that will pair with one partner for life, which is the case with geese and ducks. Four to five percent of the couples are homosexual. Single females will lay eggs in a homosexual pair's nest. It has been observced that the homosexual couple are often better at raising the young than heterosexual couples.

When you see a colony of black-headed gulls, you can be sure that almost every tenth pair is lesbian. The females have no problems with being impregnated, although, according to Petter Boeckman they cannot be defined as bisexual.

"If a female has sex with a male one time, but thousands of times with another female, is she bisexual or homosexual? This is the same way to have children is not unknown among homosexual people."

Indeed, there is a number of animals in which homosexual behaviour has never been observed, such as many insects, passerine birds and small mammals.

"To turn the approach on its head: No species has been found in which homosexual behaviour has not been shown to exist, with the exception of species that never have sex at all, such as sea urchins and aphis. Moreover, a part of the animal kingdom is hermaphroditic, truly bisexual. For them, homosexuality is not an issue."

Petter Bockman regrets that there is too little research about homosexuality among animals.

"The theme has long been taboo. The problem is that researchers have not seen for themselves that the phenomenon exists or they have been confused when observing homosexual behaviour or that they are fearful of being ridiculed by their colleagues. Many therefore overlook the abundance of material that is found. Many researchers have described homosexuality as something altogether different from sex. They must realise that animals can have sex with who they will, when they will and without consideration to a researcher's ethical principles."

One example of overlooking behaviour noted by Petter Bockman is a description of mating among giraffes, when nine out of ten pairings occur between males.

"Every male that sniffed a female was reported as sex, while anal intercourse with orgasm between males was only "revolving around" dominance, competition or greetings.

Masturbation is common in the animal kingdom.

"Masturbation is the simplest method of self pleasure. We have a Darwinist mentality that all animals only have sex to procreate. But there are plenty of animals who will masturbate when they have nothing better to do. Masturbation has been observed among primates, deer, killer whales and penguins, and we're talking about both males and females. They rub themselves against stones and roots. Orangutans are especially inventive. They make dildos of wood and bark," says Petter Boeckman of the Norwegian Natural History Museum.

http://www.uio.no

Source: http://www.news-medical.net/print_article.asp?id=20718

See also: http://en.wikipedia.org/wiki/Homosexuality_in_animals

Quote
A better question would be: Why is the government in the marriage business anyway? Where in the Constitution does it say that the .fed or the States get to give you permission to marry through a license?

Yeppers.  Governments ONLY function in marriage is as a disinterested keeper of the records.  The rest of the matter lays under the control of those adults (of whatever gender or number) who wish to have their partnership recognized by their fellows and their faith.
I am free, no matter what rules surround me. If I find them tolerable, I tolerate them; if I find them too obnoxious, I break them. I am free because I know that I alone am morally responsible for everything I do.

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Re: is it unconstitutional to ban gay marriage?
« Reply #24 on: May 04, 2008, 11:01:43 AM »
Yes.
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