In the Court of Public Opinion

John R. Gay v Robert B. Straight (2004)

Gay
v.
Straight

February Term, 2004



The facts of this case are thus:

Plaintiff contends that the laws of any state which prohibit him to marry another person of the same sex causes him loss and suffering. He alleges this injustice is inherent in the statutes as written regarding insurance plans, taxation, inheritance rights, hospital privileges, etc. Plaintiff petitions the court to force the various legislatures to enact laws providing for marriage between persons of the same sex.

Defendant, conversely, contends that the institution of marriage is a cultural institution, and that traditionally marriage is only between a man and a woman, and that any denigration of this tradition will severely damage his heritage and way of life. Defendant asks that the plaintiff’s petition be denied, and threatens constitutional amendment in the alternative.

MR GREG SAMPLES deliverd the opinion of the court.

It is an accepted fact that plaintiff has suffered losses regarding insurance, taxes, inheritance laws, etc. However, there are certain factors, arrived at over time, which have commonly been accepted by the courts as to determine a valid marriage.

The controlling Supreme Court case (never overturned) regarding marriage is Meister v Moore 96 US 76 (1877). This case stated:

"As before remarked, the statutes are held merely directory; because marriage is a thing of common right..." [emphasis added]

“Directory - A provision in a statute, rule of procedure, or the like, which is a mere direction or instruction of no obligatory force, and involving no invalidating consequence for its disregard, as opposed to an imperative or mandatory provision, which must be followed. Black's Law Dictionary, 6th Ed” Source

In other words, all state laws regarding marriage are in reality just suggestions, because marriage is a right that existed prior to the existence of the state, and the state can in no way revoke that right. Therefore, if a man and a woman desire to marry without the permission of the state, (i.e. a license), the marriage is just as valid.
The following have commonly been used to determine the validity of a marriage:
Source

Most of the above could be applied to a marriage between members of the same sex. However, according to:
"Principles set forth in Graham v. Graham, 274 P. 2d 605 (Colo. 1954)

The only essential requirement of a valid marriage contract between parties capable of contracting is their consent, but the contract alone is insufficient, unless consummated by the parties' cohabitation as husband and wife.
Source

We must therefore determine the exact definition of “consummate”. That is easy enough to do.
From Meriam Webster Online
One entry found for consummate.
"to make (marital union) complete by sexual intercourse (consummate a marriage)"

We must then define sexual intercourse:
From Encyclopedia Brittanica:
"Sexual Intercourse, also called Coitus, or Copulation, reproductive act in which the male reproductive organ (in humans and other higher animals) enters the female reproductive tract."

It would therefore seem impossible for two members of the same sex to have a valid marriage. However, this court still is aware of the hardship, loss, and suffering of the plaintiff.

Ruling: The above is an example of how a U.S. Federal Court, or one of the several State Courts, might arrive at a ruling. Fortunately, this Court of Public Opinion is not constrained by other courts decisions about this case, nor, for that matter, are we constrained to this case. Therefore, our solution to the above injustice is as follows:


Furthermore:

Judgment affirmed.

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