Third Party & Independents Archives

Gay Marriage; It’s A Case of Due Process and Equality Before The Law

The debate for and against Gay marriage in America is undeniably in full swing. From coast to coast, cities and towns are marrying gay and lesbian couple at a brisk rate in deviance of state laws prohibiting such practices. And just last week the city of San Francisco upped the ante considerably when it threw down the preverbal gauntlet and sued the state of California over its laws which prohibit same-sex marriages, stating that they violate the Equal Protection and Due Process Clause’s of the California state Constitution, and are thereby discriminatory.

Until recent I was four-square against the idea gay marriage, opting instead to support Civil Unions as a reasonable alternative; see my article post on Dec. 23, 2003 entitled: Toward a More Civil Union; A Case For Civil Unions Between Gay & Lesbian Couples in America. Since that time I have done more research into the subject, and because of the lack of federal protections guaranteeing equal protection under federal law, I have changed my position. And I see no other way for the interests of liberty, equality and fairness before the law (state and federal) to be served short of allowing gay marriage. Because at its base, this (gay marriage rights) is not a theologian debate, subject to the canons of religious doctrine, but one governed by the many states regulation of the institution of marriage.


Marriage as regulated by the many states is a “Civil” Institution, not a religious one, and as such, they (the many states) have to recognize and respect the rights of gay and lesbian couples, as full citizens of this country, to marry and form families. And unless and until the many states can show harm to society or family units from the practice of same-sex marriage, it cannot under our form of governance prevent same. Taken in that context, which the courts are constitutional bound to do, the debate becomes one of Equal Rights and Due Process before the law, which mere Civil Unions do not guarantee because the federal government does not recognize state sanctioned Civil Unions.

For myself I had to ask as well, what harm could same-sex marriages do to the institution of marriage that heterosexual couples haven’t already set in motion? Britney Spears and company should be allowed to make a mockery of the institution, but two loving committed same-sex adults who wish to form a lasting family unit should be denied the right?

Vocal opponents of gay marriages state that marriage is first and foremost a contract entered into for forming families; i.e. raising and protecting children. A little scenario if you will: a gay or lesbian person with a long time partner adopts a child in a state where gays are denied adoption rights as a couple. They raise the child together for ten years, but then the partner that adopted the child dies suddenly, and the child now becomes a ward of the state because the surviving partner has no rights under the law. So, although the remaining partner is in all respects to the child, the child’s parent, the child is placed in foster care at the very time emotional support for the child is paramount. In effect the child loses both parents, and a family unit is broken up. Is this fair; is this just; would this scenario be in the “best interests of the child?” Is it better to raise a child in a single parent household, or consign them the foster care then it is to permit gay and or lesbian couples to adopt and thereby form a loving family unit? If the family is indeed the bedrock of society, and the traditional American family continues to decline, isn’t it better for children to grow up in intact loving families with two parents of the same sex, then not? Isn’t this, in the short and long term better for society? If the institution of heterosexual marriage were such a sparkling example to follow, would there be a need for foster care in the first place?

As for the proposed constitutional amendment that would outlaw same sex marriages: I am vehemently opposed it. How could we even think of placing such wording in a document which is supposed to embody freedom and equality for all before the law? The Republican’s are by-and-large for such an Amendment, but at the same time they yell and screen that government should stay out of people’s lives. They are all for states rights, but not in this instance because state courts with those nasty “activist judges” might actually uphold their state constitutions and rule in favor of gay and lesbian couples. Seems the Republican platform has become the parchment of the religious right and no longer bears any resemblance to notion of equality, liberty and justice under law.

To me there are only two avenues open that make any sense; 1. The federal government should extend those federal laws and regulations concerning marriage to citizens entered into a Civil Union contracts, or; 2. repeal the silly Defense of Marriage act and let the states define marriage within the scope of the respective state constitutions, allowing the Full Faith and Credit clause of the federal Constitution, which 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. U.S. CONST. art. IV, § 1.
to hold sway, thereby granting the benefit of federal law upon such lawful unions.

Again marriage as governed by the many states is a Civil Institution, not religious one, despite the fact that most marriages are performed by clergy. As such, the state cannot discriminate on the basis of gender or sexual ordination and still remain faithful to the underlying tenets of our Republican form of governance, you know that which states:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein 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. U.S. CONST. amend. XIV, § 1.

Posted by V. Edward Martin at February 29, 2004 2:09 PM