The heart of the gay-marriage
debate is encapsulated in the title of this article. I have been somewhat
reluctant to address this issue in the past. My views on gay marriage have been
evolving over time similarly to President Barack Obama. I am a heterosexual
male who grew up in a traditional Protestant household. The values that I was
inculcated with from an early age were socially conservative. They have changed
greatly over the years but I still had doubts about the extension of marriage
to same-sex couples until only recently. I thought that "civil union"
laws would suffice in satisfying gay Americans by ensuring their rights and
benefits in our society. This view was very myopic in retrospect and missed the
key point of the entire debate.
Gay-rights activists see their
quest for the right to marry as a basic human right. Their goals are at their
heart no different than the civil-rights movement or the women's-rights movement.
I formerly saw the issue as simply one of equal benefits under the law while
still reserving the title of marriage to heterosexual couples. The United
States Supreme Court will rule on two important cases pertaining to this issue
in the coming months.
I will begin this article by
describing the two cases being argued before the Supreme Court. Then I will
present the states'-rights argument followed by the human-rights case. Finally I
will attempt to synthesize the two cases and their respective arguments. Then I
will reveal my new viewpoint on this issue and how I arrived at it.
The two cases before the United
States Supreme Court address different aspects of the gay-marriage debate. One
case is United States v. Windsor that challenges part of the Defense of
Marriage Act (DOMA), which is federal legislation passed in to law in 1996. This
law recognizes marriage to be only between a man and a woman for the purposes
of federal employee benefits and programs.
Edith Windsor inherited
property from the woman she married in Canada in 2007. The United States
Internal Revenue Service did not recognize this marriage due to DOMA and
assessed Ms. Windsor $360,000 in estate taxes. A legal spouse under federal law
would not be liable for this tax. The United States Court of Appeals in New
York struck down the DOMA-inheritance tax ruling in favor of Ms. Windsor.
United States House of Representatives Republicans stepped in to defend the
DOMA law when the Obama Administration refused to do so. They brought this case
to the U.S. Supreme Court and it was accepted by the Court.
The second case being presented
is Hollingsworth v. Perry. This case was brought to challenge California
Proposition 8, narrowly approved by California voters, which vacated the
California Supreme Court's decision to allow gay marriages. Ted Olson and David
Boies, opposing lead lawyers in the 2000 Bush v. Gore case, filed this lawsuit
against Proposition 8 in 2009.
In May of 2009, the Alameda
County Clerk Registrar denied a marriage license to Kristen Perry and Sandra
Steir on the grounds that they violated California's Proposition 8 law that
prevents same-sex marriages. Olson and Boies took their case and advanced it to
the United States Court of Appeals for the Ninth Circuit. Both Governors Arnold
Schwarzenegger and Jerry Brown refused to defend this law. The
ProtectMarriage.com group led by Dennis Hollingsworth took up the defense of
Proposition 8 in this case in this absence.
The United States District
Court of Northern California ruled that Proposition 8 violated the Fourteenth
Amendment's Due Process and Equal Protection clauses during August 2010. The
Ninth Circuit upheld this ruling on February 7, 2012. The United States Supreme
Court agreed to hear this case on December 7, 2012, along with the
aforementioned DOMA case.
Now that we understand what the
origins and natures of the two cases before the Court are, I would like to
describe the states'-rights case in this gay-marriage debate. The DOMA case may
actually be the prime example of an encroachment on states' rights even though it
is in opposition to same-sex marriage.
DOMA is federal legislation
that the Congress passed with President Bill Clinton's signature. The political
climate of the time was much more socially conservative in regards to gay
rights. I believe this legislation was a political pandering attempt aimed at
the political bases of both parties. Historically, the definition and administration
of marriage has been a state and local issue. These Congressional leaders felt
the need to make their voices known on this issue. The states'-rights question is
whether this federal law usurps state laws that allow gay marriage. The human-rights question will also weigh in but I will address this later.
The California Proposition 8
case is the more classic example of arguing for states' rights over human rights.
The people of California voted for the prohibition of gay marriages by a narrow
margin in 2008. The question then arose as to whether this proposition was
constitutional or a violation of the human rights of gay citizens in
California. The U.S. Supreme Court will rule on this case later in 2013. They
may make a definitive decision on this matter or they may make a narrower
procedural decision which would leave this Constitutional question in limbo for
the time being.
The human-rights question is
clear and the same with both cases in my opinion. Both of these laws ban gay
marriage in some or all aspects. Is this a basic human right protected by the
Bill of Rights in our Constitution or is it a state's right? States and
localities have always been the responsible jurisdictions for issuing marriage
licenses and instituting the criteria that a couple must meet to obtain one.
These criteria have always been quite limited. None of our states sanction polygamy. Blood tests are a thing of the past in most states.
Laws against interracial
marriage were ruled unconstitutional by the United States Supreme Court in the
1960's. Now gay marriage is on the Court's docket. The Court has been
historically slow in overturning state laws in favor of human rights. An issue
of this sort usually needs to have been brewing for many years with a
considerable change in public opinion for the Court to rule a state law
unconstitutional. The Supreme Court ruled that miscegenation laws barring
interracial marriages were unconstitutional only after the Civil Rights
movement was in high gear and public opinion had shifted. These laws were a
century old before the Supreme Court took them on. The question now arises as
to whether the gay-marriage issue has matured to a point in our national debate
where the Court will overrule state law in favor of human rights.
As I stated in the introduction
of this article, my view on the gay marriage debate has greatly evolved. I
originally felt that marriage was exclusively a heterosexual institution though
homosexual couples deserved the same benefits and advantages. This viewpoint
was enshrined by most states within their own laws. The LGBT (Lesbian Gay
Bisexual Transgender) movement grew and their arguments became clearer to me. I
began to change my perspective. Now I definitely see the parallels between the
Civil-Rights movement and the LGBT movement. This includes the gay-marriage
question.
Most of our civil-rights laws
have easily been expanded to include gay individuals. Why should gay marriage
not be included? Religious institutions have the autonomy and the right to
decide this issue within their own auspices. That is fair and within the
"separation of church and state" inference within the First Amendment
of our Bill of Rights. The Declaration of Independence states "We hold
these truths to be self evident, that all men are created equal, that they are
endowed by their Creator with certain inalienable rights, that among these are,
life, liberty, and the pursuit of happiness". Should not the right to
marry be extended to gay couples to satisfy this phrase from the Declaration?
I now believe that governmental entities
should be required to perform gay marriages as an expanded part of the 1964
Civil Rights Act. Human rights have overwhelmingly won out over state rights
though it often takes many years for these rights to become fully absorbed into
our body of laws. The United States Supreme Court may be near the stage where
they take this significant step to legalize gay marriage. Several states have
already done so and there are now serious questions regarding the status of
these marriages across state borders.
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