@Putin:
You ninja'd my argument. +1.

Or, hey, let's ban anyone from saying anything in public other than reciting the pledge of allegiance, because, hey, everybody enjoys the same freedom to recite the pledge of allegiance as many or as few times as they want. That's freedom of speech, right?

"isn't the fact that the state only offers hetero marriages a de facto definition?"

That's your and other religious whack jobs interpretation. The state recognizes marriage, undefined by the gender of the parties involved. If the state had never used that word, marriage, this wouldn't even be a debate. But religion thinks it owns the word (hint: it doesn't) and so we argue endlessly with the "moral majority" attempting to insert their morality on the people who disagree with them.

@ hecks and Putin

Religion and speech are explicitly enshrined in the Constitution. Marriage isn't, at least not at the federal level.

I'm really not opposed to your side, I'm really not. But wouldn't it be a far more significant milestone if gay marriage was legalized through all 50 state legislatures, instead of being legalized by activist judges?

@Gunfighter,
The freedom to organize freely into corporations, affinity groups, and organizations has been ruled to be part and parcel of the constitutional freedom to assemble. A marriage as recognized by government can easily be understood as a specialized class of corporation, affinity group, or organization.

"But wouldn't it be a far more significant milestone if gay marriage was legalized through all 50 state legislatures, instead of being legalized by activist judges?"

I agree with you. As I said before, I'm opposed to judicial interventions. It gives the Constitution too much influence.

"Religion and speech are explicitly enshrined in the Constitution"

Yes but one could say, as many have in the past, that the 1st Amendment only prohibits an official state religion at the federal level, and doesn't protect non-religious affiliated people at all.

But the 14th took that freedom to be a religious entity away from the states. It truly separated church and state and not just at the federal level.

"All persons born or naturalized in the United States, and subject to the jurisdiction there of, are citizens of the United States and of the State where in they reside. 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."

This includes the freedom of religion for *every* individual as citizens of the United States.

The 14th amendment lays out two forms of citizenship in the first sentence- National and State. The key phrase there is "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States". Well, what are the privileges and immunities of national citizenship which states cannot abridge? What are the privileges and immunities which the states are responsible for? Where does religion fall on these two categories? Does this mean that the preclusion of the adoption of State Church by say, the State of Maryland, is a fundamental right of national citizenship protected by the 14th amendment?

Smarter people than me have considered this and reached completely different conclusions depending on the time period.

As it currently stands, no state or commonwealth has a state adopted religion because the Supreme court has ruled that freedom of religion with regards to practicing it *is* covered by the 14th amendment. The 1st amendment says all US citizens have a right to freely practice their religion without Congress interveining. That right is upheld at the state level by the 14th and SCOTUS has ruled it to be upheld and that States may not enact laws establishing a state religion or abridging the free exercise thereof. Specifically, Epperson v. Arkansas in which it declared banning the teaching of Evolution on religious grounds to be unconstitutional.

That's not at all clear though. The state constitution of Ohio guarantees freedom of religion, so it appears that states didn't get the memo that religion was an issue of national and not state citizenship.

@Putin,
Your Ohio example isn't exactly apt; the amendment said the states may not pass a law that abridges rights otherwise guaranteed. The states are perfectly entitled to pass laws affirming those rights.

The amendment says that states cannot abridge rights of national citizenship. It does not say what the rights of national citizenship actually are. In historical cases the court ruled that the 5th amendment is not applied to the states because various state constitutions had their own laws protecting against self-incrimination, so therefore it was not a right of national citizenship, but a state one. If state constitutions across the country have constitutional provisions regarding religion, then it appears that religion is covered by state citizenship and not national citizenship.

@Putin,
It's true that prior to 1947, the Supreme Court ruled that the establishment clause applied to the federal government only, not to the states. The 1947 ruling on Everson vs. Board of Education ruled that the 14th amendment makes the establishment clause applicable to the states as well.

You are right to state that many contemporary legal scholars disagree with the Everson finding, and would like to see it overturned.

Well, I'm no constitutional expert at state or federal levels, so I'll leave it to the history and legal guys to hash out. But it seems to me everything in the Fifth Amendment already applies at the state level in every state I've heard of (no unreasonable search and seizure, no double jeopardy, no seizure of land without reasonable compensation, etc.)

@Draug,
The difference between 5th amendment and 1st amendment religious freedom has been, by some arguments, that the 5th amendment reads, "No person shall be held to answer for..." and "nor shall any person be subject for..." etc, etc. It says pretty clearly that these things won't happen in the US.

The argument hinges on the more specific language in the first amendment religion clause that begins, "Congress shall make no law respecting..."

They argue that while the fifth amendment says people cannot be held [by anyone] to answer for certain crimes, the first only specifies that *Congress* shall make no such law, and that the first does not, therefore, prohibit the *States* from making such a law, whereas the fifth does.

[It should be noted that I, as an avid secularist, disagree with this interpretation. I'm merely trying to point out the basis on which others would argue in its favor.]

God I hate pedantry in legal documents. Sometimes I start to think Putin is right and the British way of *not* having a written constitution might be better in some regards. You can't get pedantic with the wording of a non-existent document. :-)

Of course they have a written document! The Magna Carta! Voting rights and freedom of speech may be just sort of understood, but don't fuck with the Bailiwicks of Gerard of Athee! That shit's in writing, yo.

LOL! OK, OK. But they have an unwritten form of constitution as well. Hell, half of their procedure is official because it has always been official but there is nothing in writing laying it out beyond following Robert's Rules of Order or whatever.

There is a reason why British government has been readily adopted by new countries whilst those who adopted the Montesquieu-ian American inspired version of divided government have struggled.