I suppose it is unavoidable now because the Supreme Court is set to hear two cases this week that may ultimately pivot history and decide the fate of gay marriage in our nation. Tuesday and Wednesday the highest court in the land will hear arguments for the famous–or infamous, depending on your point of view–California Proposition 8 defining marriage between a man and a woman, and the Defense of Marriage Act stating that a homosexual union in one state need not be recognized by another.
I have avoided writing about gay marriage for as long as possible simply because of the ferocious passion on each side of the debate. I have no problem taking a stand in the face of vehement opposition, that is actually why I started writing. The problem is that both proponents of and opponents to gay marriage believe they are on a righteous quest, and, like jihadists do, they will settle for nothing less than complete and utter annihilation of their enemies. It is impossible to have a civil discussion about gay marriage with either side—disagreeing means you are insane. But with the hearings this week so many friends and readers have asked what if think of gay marriage, so I guess it is time to attempt a civil discussion.
So what do I think about gay marriage? It doesn’t matter. The lines of right and wrong intersect with gay marriage. To some, homosexuality is wrong, and a sin, and therefore gay marriage must never be considered. To others it is wrong to privileges or rights away from real people because of sexual orientation. This is exactly why the Constitution does not legislate right or wrong; they are fluid concepts relative to the perspective of the citizen. Slavery used to be viewed as right, as did burning witches, stoning adulterers, and abandoning babies with birth defects.
The argument against gay marriage is desperate at best. Most people who oppose gay marriage do so holding the belief that homosexuality is a sin. This argument lacks integrity because sins are decided by God, not the government. Is being married a sin? Most people would say no. So if marriage is not a sin, than two gay people being married is not a sin. It is being gay, not getting married that is a sin. Marriage does not make homosexuality any more of a sin than it otherwise is. So opposing gay marriage on those grounds is frivolous.
Many others say gay marriage poses a threat to traditional values, to which I ask, what are traditional values? If traditional values are a mother, father, kids, dog, minivan and church on Sunday than 2013 is a much bigger threat to traditional values than gay marriage. Divorce is not just common, it is practically expected. Single parent households are normal, and the statistics on children raised in these single parent homes are frightening. Most couples live together without being married, even if they are married later on. I find it very ironic that open marriages, swinging, and one night stands apparently pose less of a threat to traditional values than people who actually want to get married. Is a lasting, loving marriage between two men or two women really more destructive to the institution of marriage than Kim Kardashian? It seems gay people are the only ones fighting for marriage.
But Gay marriage is much more than just religious morality versus human rights. Marriage itself is recognized by the government not for religious reasons, but for civil reasons. A married couple expectedly will raise a family–a function any government has a vested interest in because of is necessity for a nation to survive–therefore, a married couple is given special tax consideration. They are allowed to file jointly, and their income bracket is raised. Because it is biologically impossible for two people of the same sex to conceive a child it is a valid question to ask whether or not gay marriage ought to be recognized by the government on basis of equality. Oddly ironic to argue against gay marriage using equality, I know, but it is clearly inequality to grant the same civil consideration to homosexual couples given that they cannot grow the population. This would be similar to granting every citizen the same consideration members of the military receive despite the fact they do not defend our country.
A predictable rebuttal to this would be that gay couples can always adopt, and, any special tax consideration given to adopting heterosexual couples would also need to be given to homosexual couples, but adopting does not grow the population. In regards to adoption I have heard many people say children raised by a gay couple face developmental hindrances, and so this should not be allowed. The science is still out on the subject; it is not yet clear if or what hindrances children might consistently face. Then again, would it be any worse than a single parent household? If marriage were simply just a name on a paper then the gay marriage issue may be as simple as a state’s vote–the way the 10th Amendment tells us to decide these issues.
Either way, the question is not what is right or wrong, but what is legal, and what is Constitutional. That is what the Supreme Court will consider this week. Proposition 8 was overturned (meaning marriage could not be defined as being between a man and a woman) by a federal judge on the basis of discrimination. Whether or not it is ruled discriminatory may well hinge on the arguments already made. Does or does not the 10th Amendment provides the freedom for citizens to decide such matters?
The Defense of Marriage Act case will be equally as gripping. Currently states are required to give ‘full faith and credit’ to the legal documents of other states, meaning that if you have a driver’s license in California you can drive to Miami and it will still be valid for spring break. The DOMA essentially states that this does not apply to a same-sex marriage, meaning a gay couple married in Massachusetts can move to Tennessee and the state does not have to recognize that marriage. The question up for debate is whether or not this violates the Constitution, or if a state has the authority to make this choice? One might immediately think “how could it not violate the Constitution to not give full faith and credit to a marriage certificate?”
The clause is written very vaguely, leaving for a lot of room for interpretation. “Public Acts, Records, and judicial Proceedings” does not really pin anything down. Currently a permit or license for a firearm or concealed weapon is issued in state A, and not valid in state B unless state B specifically lists it as being so. Permits to practice law, medicine, real estate, and insurance are currently not recognized across state lines. If these do not violate the full faith and credit clause why would a marriage certificate? Perhaps a better question is whether or not a state can refuse to acknowledge a heterosexual marriage? If a state can only choose to refuse same-sex marriages than this is clearly a discriminatory practice.
So where will the Supreme Court rule? Given their record I doubt they will overturn a ballot initiative like Proposition 8, especially considering the Constitution, in the 10th Amendment leaves to the decision of the states of the people any issue not delegated or prohibited by the constitution. I expect the Supreme Court will leave it up to each state to decide whether or not to legalize gay marriage. The more interesting question will be whether or not other states must recognize this decision in the DOMA ruling. Might the Supreme Court rule DOMA unconstitutional, thereby forcing one state to recognize another states’ marriage–whether gay or straight? If so, will they rule on how a same-sex marriage is to be treated by the IRS? Will they rule that states have the right to determine their own welfare, as they do with other licenses not recognized nationwide? Perhaps this week will be a perfect example of why Patriotslog feels the Supreme Court is the most powerful body in government.
I hope that in reading this you have realized that gay marriage is not a right or wrong issue. It is not a morality versus human rights issue. Most importantly I hope you understand that what I, or any one person, thinks of gay marriage does not matter. It is not a question of whether or not it is good for society, moral for our culture, or needed for human rights. Individually these may be our greatest concerns, they may be our driving force to oppose or support it, but whether or not it can reasonably be granted or denied on solid legal and constitutional grounds is what will determine the outcome. The Supreme Court is standing at histories’ crossroads. Either way, the controversy is not going away after they make their decision.
25 March 2013
Posted on March 25, 2013, in Constitutional Law, Patriotslog Articles, Politics, Religion and tagged argument against gay marriage, current-events, defense of marriage act, DOMA, equality, gay marriage, gay rights, human rights, marriage equality, politics, prop 8, prop eight, proposition 8, proposition eight, Religion, same sex marriage, sanctity of marriage, society, supreme court doma, supreme court prop eight, supreme court to hear gay marriage. Bookmark the permalink. Leave a comment.