What does the Constitution of the have to say about marriage?
Amendment 14 of the Constitution
guarantees citizens of the To try and lessen this gap in rights, some states have created make-shift alternatives to marriages for gay couples that provide a few of the basic rights that marriage does. California created domestic partnerships, Vermont created civil unions, and Hawaii made “reciprocal beneficiaries.” Reciprocal beneficiaries get more rights than domestic partnerships and civil unions, but still only receive 50 out of 200 rights awarded to married persons.[3] Even though these agreements carry a bunch of rights, they do not include any responsibilities. For example, if a partnership splits, there is no way to ensure that assets are divided fairly, and if a person dies and leaves their partner without support, no legal action can be taken. The “Defense of Marriage Act” (DOMA), signed into law by President Clinton says that “No State . . . shall be required to give effect to any public act, record, or judicial proceeding of any other State . . . respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State . . . or a right or claim arising from such relationship." This Act violates the Due Process Clause of the Fifth Amendment.
The Due Process Clause of the Fifth
Amendment says that no state shall “deprive any person of life, liberty, or
property without due process of law.” In
Baehr v. Miike, a case in
However, some argue that the policy
of prohibiting same sex marriage does not discriminate on the basis of sex
because both men and women are only
allowed to marry the opposite gender. It
does not matter whether men and women are equally disadvantaged. What matters is that there is
discrimination. For example, both blacks
and whites were punished for violating laws against interracial marriage in Virginia. In the case of Loving v. Virginia, Loving complained that the state of Virginia discriminated on the basis of race
because it made people’s ability to marry dependent on their race. Similarly, DOMA discriminates on the basis of
sex because it makes people’s ability to marry dependent on their gender. At one point in our country’s history, marriages
between African Americans were not even recognized because they were considered
to be only three-fifths people.[4]
As ruled in Regents of the University of California v. Bakke, the right to equality is a
personal right, not a group right – groups don’t get married, individuals do. A person should be able to marry any person
(that is, any person eligible for marriage) that he or she chooses regardless
of who that person is or to what group that person belongs. DOMA also ignores the Full Faith and
Credit Clause of the Constitution. Article IV, Section 1 states: “Full faith and credit shall be given in
each state to the public acts, records and judicial proceedings of every other
state. And the Congress may by general
laws prescribe the manner in which such acts, records and proceedings shall be
proved, and the effect thereof.” There
are some established exceptions to this clause. These exceptions include: “a forum state does not have to respect the
judgment of a sister state that purports to transfer title to real estate
within the forum state.” And “A state
does not have to respect “penal” judgments from other state courts.”[5] However, there is no “policy”
exception. That is, states have to
enforce the judgment of other states even if they disagree with the policy
behind a law on which the judgment is based. Courts have ruled this way in Williams v. North Carolina, Sherrer v.
Sherrer in which the respondent tried to claim that a divorce was not
legitimate because it took place in another state, and Fauntleroy v. Lum in
which J. J. Lum tried to escape financial responsibility by going to Missouri
from Mississippi. This means that if a
state allows a gay couple to be married, then another state must respect their judgment, and assure gay and lesbian
couples the same rights as heterosexuals. It has not been interpreted to mean, however, that a state must adopt
another state’s exact laws, just respect their judgments.[6] DOMA ignores both the written word and the
interpretation of the Full Faith and Credit Clause. The danger of DOMA is summed up in this
quote: “Hard cases make bad constitutional law—but really bad laws can unmake constitutional principle.”[7] Often the law is distorted by the
prejudices of lawmakers and jurists, and legal decisions are made for the wrong
reasons. In Craig v. Boren, it was ruled
that, “classifications which discriminate on the basis of gender must be
substantially related to some important government purpose.” Some
people argue that marriage should be between a man and a woman because that’s
the way it’s always been done. “Tradition”
is not an important government purpose. Neither is the desire to harm that group. If those were accepted government purposes,
sex discrimination would still be legal. Supreme Court Justice Oliver Wendell Holmes said, “It is revolting to
have no better reason for a rule of law than that it was so laid down in the
time of Henry IV. It is still more
revolting if the grounds upon which it was laid down have been vanished long
since, and the rule simply persists from blind imitation of the past.”[8] In early 2004, the Massachusetts Supreme
Court ruled that government attorneys “failed to identify any constitutionally
adequate reason to deny [same-sex couples] the right [to marry].”[9] In the House debates regarding DOMA, the law
was justified to prevent a threat to marriage, but they never said how marriage was threatened. The president and others of the bill’s
supporters also failed to address the question of DOMA’s constitutionality.[10] An argument similar to the
“tradition” argument is that gay marriage should not be allowed because that’s
not what the majority wants. It is not
the will of the people. However, that is
just not how government works. Elizabeth
Birch, director of the gay rights organization Human Rights Campaign said, “If
not for courts, African-Americans would not have the right to vote, women would
not have the right to vote.” The purpose
of a constitution is to protect a minority group from the wrath of the
majority. James Madison, a founding
father of the Constitution, said in his Federalist Paper No. 10 that “measures
are too often decided, not according to the rules of justice and the rights of
the minor party, but by the superior force of an interested and overbearing
majority.”[11] So, just because a majority of people are
against gay marriage does not mean that it is the government’s job to prevent it. In fact, that would defy the purpose of
government. Many of these people in the
“majority” that want to ban gay marriage, want to do so for religious
reasons. They think it is morally wrong,
and use the “slippery slope” logical fallacy, saying things like, “If you allow
two men to marry, what’s next? Will I be
able to marry my sister, or my dog?” They say that gay marriage soils the holiness of the institution of
marriage. While they have the right to
prohibit same-sex marriages within their church, they do not have a right to
dictate their beliefs to the entire country. This goes against the separation of Church and State. Some protesters say that there is no such
thing as the separation of Church and state,[12] but
the First Amendment of the Constitution states clearly, “Congress shall make no
law respecting an establishment of religion…”
Some arguments against gay marriage
are claims that such marriages violate the purpose of marriage. A common argument is that the purpose of
marriage is to foster offspring. However, marriage is not premised on procreation legally or otherwise. In Griswold v. Connecticut, it was ruled that the right of
marital privacy prohibits the government from interfering with efforts to
actively avoid procreation. In 1984, the Hawaii Supreme Court eliminated idea that
procreation was the purpose of marriage. They said that it was “prejudiced against the handicapped, the elderly,
and others.”[13] Alternately, just because a couple, gay or
otherwise, cannot procreate themselves does not mean they cannot raise a
family. Many same-sex couples adopt or
use artificial insemination. Court cases
and the Congress have failed to produce evidence that gay couples are somehow
less capable of raising children, or that their doing so does harm. Someday, we may have to justify why these rights were withheld from our citizens. We will not find justification in the 14th Amendment, nor in the Full Faith and Credit Clause of our constitution. Other arguments may seem weak in the light of history, and have no constitutional basis, since marriage is not even mentioned in that document. Society may even find that a compelling interest is served by gay marriages in fostering monogamy, wellbeing, and the “orderly pursuit of happiness.” |
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[1]
Robert Cabaj,
On the Road to Same Sex Marriage (San Francisco: Jossey-Bass, 1998) 133.
[2]
Bruno Leone, At Issue: Gay Marriage (San Diego: Greenhaven, 1998) 14.
[3] William Eskridge, Equality Practice: Civil
Unions and the Future of Gay Rights ( [4] The “Three Fifths Compromise” was enacted in the time of slavery, and stated that blacks counted legally as “three fifths” of a person for purposes such as what number of representatives to send to Congress. [5] Leone 14. [6] Eskridge 29. 6 Eskridge 26. [8] Oliver Holmes, Collected Legal Papers (Boston: A. Harcourt, 1998) 187.
[9]
“ [10] Eskridge 34.
[11]
James Madison, “Federalist No. 10,”
[12]
Steve LeBlanc, “Protesters sing, pray and chant as lawmakers weigh gay marriage
question.” Boston.com News. 2004. Associated Press.
[13]
Jonathan Goldberg-Hiller, The Limits to
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