February 29, 2004
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 02:09 PM
1. I am not sure I am understand what you are saying here- if denying a same-sex couple marriage rights is a denial of “equal protection” (which, I would admit, it likely is), how can we possibly allow the states to decide upon this issue? The ENTIRE point of the 14th ammendment’s equal protection clause is that state cannot fail to provide equal protection under the law for their citizens. So it seems that there are only two constitutional options: (1) have the supreme court do a brown v. board redux and force gay marriage on the states (which is likely what would happen- and it would probably be the correct decision); (2) the congress can pre-empt the supreme court and declare that all states must respect the rights of gay people to marry (VERY unlikely to say the least). I do not see how your 14th ammendment analysis could produce a different result from this.
2. Note that your argument would apply exactly in its form to poligomy and adult concentual incest (at least gay, adult concentual incest, if there is really medical evidence of birth defects from straight incest). That, of course, does not chance the 14th ammendment analysis, but you gotta be willing to admit that. And once we admit that, we see that marriage must be on its way out as a government institution- because once we have polygomy, it would be wayyy too difficult to confine in any administerable way.
Posted by: Misha Tseytlin at February 29, 2004 02:47 PMMisha: You said “once we have polygamy, it would be way too difficult to confine in any administrable way”. I’m not really sure what you mean by that. Could you elaborate, please?
Posted by: Jarin at February 29, 2004 03:01 PMJarin- I would imagine that once with allow polygomy, it would be impossible to limit the number of people who would be “married”. for example, that cult who all killed themselves a couple of years ago cause the mothership was coming behind Haley’s commit could go get a “group” marriage. Under the sort of situation, I just do not see how the institution would be administrable to achieve the ends people want it to achieve. We would have to either eliminate or greatly reduce all of the tax/legal benefits that come with marriage, and I think that would spell the end or near-end of government invovlement in this basically religious institution.
Posted by: Misha Tseytlin at February 29, 2004 03:21 PMI see your point regarding jointly filed taxes. It would certainly make matters difficult in that regard… although, since many people have already suggested that gay couples form limited liability corporations for similar tax benefits to heterosexual married partners, perhaps it would not be much different from any other corporation being headed by a group of individuals of any size, for tax purposes. Personally, I don’t know, since I am not familiar enough with the tax laws in question nor with the laws for LLCs.
I think, however, that government withdrawal from the institution of marriage may be difficult if not impossible. Government has made itself the arbiter of custody rights, property rights, and other issues stemming from a marriage’s end to the point that if they withdrew from acknowledging the institution and having their own legal guidelines regarding the many aspects of it, society would have significant problems fielding the issues that would be caused. It would literally take putting a whole alternate structure of laws in place that dealt with the same subjects as many marriage-related laws but decided them on different grounds. I don’t think it would be realistic to expect that this action would take place any time in our lifetimes, if it happens at all. At least, judging by the current state of our legal system with regard to such matters.
Posted by: Jarin at February 29, 2004 03:37 PMA thought that just occurred to me: perhaps the tax issues would be more manageable if it was not married partners who may file jointly, but all individuals living under the same roof… all members of a household. This would make sense in many cases, I would think. And, of course, individuals could still file separately just as married couples retain the right to file separately, if it better fits their needs. Finally, small provisions could be made for those few jobs (I’m thinking mostly military) which require one family member to be abroad from his or her normal place of residence, so that the absentee could still file jointly with his or her household.
Posted by: Jarin at February 29, 2004 03:41 PMMisha,
We should allow the states to continue to decide the issue of marriage until such time as the Supreme Court has its say (as it most likely will), because the federal government has no compelling interest in telling American citizens whom they should and should not marry.
“I am not sure I am understand what you are saying here- if denying a same-sex couple marriage rights is a denial of ‘equal protection’ (which, I would admit, it likely is), how can we possibly allow the states to decide upon this issue?”
Most state constitution have Equal Protection and Due Process Clauses, which only serve to restate the 14th Amendment to wit:
* Illinois Constitution:
SECTION 2. DUE PROCESS AND EQUAL PROTECTION
No person shall be deprived of life, liberty or property
without due process of law nor be denied the equal protection
of the laws.
* California Constitution:
ARTICLE 1 DECLARATION OF RIGHTS
SEC. 7. (a) A person may not be deprived of life, liberty, or
property without due process of law or denied equal protection of the
laws.
* Flordia Constitution:
Article I SECTION 9. Due process.—No person shall be deprived of life, liberty or property without due process of law…
* New York Constitution:
Article 1 Section 11. No person shall be denied the equal protection of the laws of this state or any subdivision thereof.
Is it then unreasonable to trust the states with the issue given these clauses? Probably. Witness Jim Crow laws that derived Black Americans of equality and equal protection for some 60 years following Plessey vs. Ferguson. Although I believe the issue of marriage should be left to the states, I also believe the issue will ultimately end up before the Supreme Court, like Loving vs. Virginia where the 14th Amendment will most like be applied.
It seems that the definition of marriage is the problem. I believe marriage was a institution prior to the US becoming an independant country carried on the boats with our ancestors. One that resulted from many cultures across the world. The meaning being man+woman. The incorporation into our laws were natural and now has come into question with the outing of gays in out society to which they seek an equal footing in American society. Religion has played a part as the catalyst for the laws as they stand now. We as a people can provide a civil union that contains a mirror image of the same rights for gays. I believe the 500+ members of congress should do their job and legislate a compromise so you could give every citizen their rights without butting heads with religion.. justa thought
Posted by: Rock at March 1, 2004 12:08 AMHow do we discriminate against 18-20 year olds who are citizens of this country, can vote, and can die in its defense, yet can not buy or drink alcohol? Isn’t that an equal protection issue?
Posted by: George at March 1, 2004 10:52 AMmisha said (along with countless others): 2. Note that your argument would apply exactly in its form to poligomy.
Marriage currently states that one man and one woman can create a marriage, not many men or women. What allowing gay marriage would do is simply give everyone equal rights to marry whom they choose. It can still be said that marrige is between two people, that infringes on no one persons rights more than anyone elses.
martin
Martin- thats just the sort of definitional game that the anti-gay marriage people are playing.
They say:
“Marriage is between a man and a woman, not between a man and a man”
Now you seem to be saying:
“Marriage is between two people, not between more than two people”
These are just argument about what words mean and do not differ in form or substance in any meaningfull way.
Posted by: misha tseytlin at March 1, 2004 04:31 PMyes misha, I am saying that marriage is between two people.
who gets hurt by that defination? Does that infringe on anyones rights? Is it a right to marry as many people as you want?
when you say that marriage is between a man and a woman, straight people have something that gay people don’t. But, no one is allowed to Marry as many people as they want, there is no discrimanation.
Posted by: martin at March 1, 2004 05:26 PMI’m no lawyer so I can’t argue exact laws, but could polygamy be seen as bigamy as far as legal marriages go?
If a man wanted to marry 5 wives, would it be one marriage between all 6 persons as far as the law goes or would it be one person trying to marry others while legally binded to the one? Sounds confusing but it makes sense in my mind.
Posted by: Gwyn at March 2, 2004 12:05 PMThere is no magical meaning of the 14th Amendment or California’s equal protection clause. Circularly, they stand for exactly what they stand for and nothing more. It is up to us to decide what is or is not a denial of equal protection. The law exists to discriminate. We can make a distinction in the law between 20 year old adults and 21 year old adults. Why are those distinctions not considered a denial? Or why are only some of those distinctions considered a violation? People act as if the fact that gays are treated differently is prima facie evidence of discrimination. Yes but, is it impermissible discrimination. The majority of people feel that it is not. If gay marriage is allowed, then why is not polygamy? As far as I know, polygamy has more examples in history where it was sanctioned than gay marriages. Wouldn’t the first natural extension of equal protection extend to something with a recent historical basis? Something that is still practiced in many parts of the world?
Personally, I do not care how people live their life. Consistent with my libertarian beliefs I want to be left alone and to leave people alone. The real import of these marriages is what will the new couples demand, not from the government, but from the rest of society. Will they go to work for a religious organization that believes as a central tenet of its faith that homosexuality is wrong? Possibly. What rights will they demand and what rights will the courts enforce? This is the heart of the matter. Most Americans will ignore how people order their private lives, but they do not want to be forced to recognize a situation they disagree with. And that is what will happen and more of our freedom - the freedom to be left alone - will be gone.
Todd—
You stated: “There is no magical meaning of the 14th Amendment or California’s equal protection clause. Circularly, they stand for exactly what they stand for and nothing more. It is up to us to decide what is or is not a denial of equal protection. The law exists to discriminate.”
I am not sure what you meant by the first statement, or the second for that matter, but it is not up to “us” to decide what is or is not a denial of equal protection under law; that is the Court’s job and theirs alone. True some laws are written to discriminate against a group of peoples usually in response to documented danger posed on society by that group. Where is the documented danger of allowing gays and lesbians to marry? What harm can come from it? How will the Institution of marriage suffer? Please someone, quantify that for me.
As for polygamy, as long as heterosexuals are allowed to marry why not allow polygamy? It’s the same argument is it not? If gays were allowed to marry, the same argument used today to prevent polygamy can be used tomorrow; after all gays are not demanding to be allowed to group marry, just to be allowed to form families recognized and respected under the law, such as heterosexual families enjoy. Society in my view can only be strengthened by this, not weakened.
George—
You stated: “How do we discriminate against 18-20 year olds who are citizens of this country, can vote, and can die in its defense, yet can not buy or drink alcohol? Isn’t that an equal protection issue?.”
You might have a case here, but vices are not considered protected by law per-say. What rights are 18-20 year olds being denied under law? The right to drink, get drunk, and possibly cause an accident? It is well documented that 18-20 year old adults drink irresponsibly and do harm to society when they do, hence the laws in most states barring them from drinking legally.
Okay well none of that reallly answered my inquiry but I’ll reply to Todd’s statement of
“I know, polygamy has more examples in history where it was sanctioned than gay marriages.”
No offense, but ya think that could have anything to do with women being seen as property in marriage until now? I happen to think so. A man marrying 5 wives would have been seen more acceptable then a man marrying a man and woman marrying a woman for that very reason. A heterosexual couple, whose voice has traditionally been the male would tend to lean to justifying polygomy over homosexuality 9 times out of 10 in that case. Homosexuality isn’t the mass hysteria that everyone seems to make it out to be we’re talking single digit percents here so it stands to reason that it wouldn’t have been widely accepted through history without a strong enough voice to back it. Today we live in a country of equal rights where a minority can have as strong, if not stronger, voice then the majority.
Posted by: Gwyn at March 3, 2004 10:10 AMWell I did a little researching on my equal protection and 20 year old issue. The Supreme Court looked at this under Craig v Boren in 1976. This case was actually about different drinking ages for males and females in Okalahoma, but it did address the Equal Protection argument. The Court put an interesting bit of language into the decision, which Judge Rehnquist challenged in his dissent.
Justice Brennan wrote the majority opinion:
“Analysis may appropriately begin with the reminder that Reed emphasized that statutory classifications that distinguish between males and females are “subject to scrutiny under the Equal Protection Clause.” To withstand constitutional challenge, previous cases establish that classifications by gender must serve important governmental objectives and must be substantially related to achievement of those objectives. Decisions following Reed similarly have rejected administrative ease and convenience as sufficiently important objectives to justify gender-based classifications.”
Judge Rehnquist, dissenting:
“The Court’s conclusion that a law which treats males less favorably than females “must serve important governmental objectives and must be substantially related to achievement of those objectives” apparently comes out of thin air. The Equal Protection Clause contains no such language, and none of our previous cases adopt that standard.”
“I would have thought that if this Court were to leave anything to decision by the popularly elected branches of the Government, where no constitutional claim other than that of equal protection is invoked, it would be the decision as to what governmental objectives to be achieved by law are “important,” and which are not.”
I’m no lawyer, and I certainly do not know what the case law is on Equal Protection cases, but I would think that the States would have to show why it is “important” to define marriage as between a man and a women to defend against a Equal Protection charge.
The Presidential Prayer Team is currently urging us to: “Pray for
the President as he seeks wisdom on how to legally codify the
definition of marriage. Pray that it will be according to Biblical
principles. With any forces insisting on variant definitions of
marriage, pray that God’s Word and His standards will be honored by
our government.” This is true.
Any good religious person believes prayer should be balanced by
action. So here, in support of the Prayer Team’s admirable goals,
is a proposed Constitutional Amendment codifying marriage entirely
on biblical principles:
A. Marriage in the United States shall consist of a union between
one man and one or more women. (Gen 29:17-28; II Sam 3:2-5)
B. Marriage shall not impede a man’s right to take concubines in
addition to his wife or wives. (II Sam 5:13; I Kings 11:3; II Chron
11:21)
C. A marriage shall be considered valid only if the wife is a
virgin. If the wife is not a virgin, she shall be executed. (Deut
22:13-21)
D. Marriage of a believer and a non-believer shall be
forbidden. (Gen 24:3; Num 25:1-9; Ezra 9:12; Neh 10:30)
E. Since marriage is for life, neither this Constitution nor the
constitution of any State, nor any state or federal law, shall be
construed to permit divorce. (Deut 22:19; Mark 10:9)
F. If a married man dies without children, his brother shall marry
the widow. If he refuses to marry his brother’s widow or
deliberately does not give her children, he shall pay a fine of one
shoe and be otherwise punished in a manner to be determined by law.
(Gen. 38:6-10; Deut 25:5-10)
G. In lieu of marriage, if there are no acceptable men in your
town, it is required that you get your dad drunk and have sex with
him (even if he had previously offered you up as a sex toy to men
young and old), tag-teaming with any sisters you may have. Of
course, this rule applies only if you are female. (Gen 19:31-36)
Lovecraft—
This is too funny, but makes a very valid point…
Posted by: V Edward Martin at March 4, 2004 08:14 AMEdward:
Did you happen to read Gen:19-31?!!! The passages about getting your father drunk and having sex with him?!!! I showed that to a Christian Conservative on the Hannity Message Board and she absolutely freaked!!! She could not believe it..even after reading it with her own eyes!!! She thought I was some kind of devil or something!! I guess I shattered her self-righteous purity she thought the Bible was so full of!!
Posted by: Lovecraft at March 4, 2004 04:58 PMI used the term polygamy as it is actualy defined: A person of one sex with multiple partners of the other sex. Polygamy is non-specific, though it is usually used in the male many female sense. However, i did not use it that way.
I am sure that in years past and currently, people make poor choices due to some sort of power dynamic. But I am also sure that people make reasonable decisions based on their own preferences. That should be allowed. Polygamy exists all over the world in both polygyny and polyandry forms. If people want to do it they should be allowed. However, they should not be allowed to force other people to accept it.
Alcohol is mentioned as a vice. Why not gay marriage or anything else? Simply saying that because alcohol is a vice and therefore can be regulated with no EP concerns ignores the fact that somebody had to define it as a vice. Who gave them that right? Why is the supposed harm of alcohol greater or less than the supposed harm of anything else?
While the Supremes have a lot of authority I refuse to defer to them completely in defining what the Constitution means. If they suddenly decide that Jim Crow laws are ok, does that make it right? No.
No one addressed my basic point. I never claimed that gay marriage would hurt marriage. I have no idea what it will do, nor do I really care. I am only concerned about people demanding things from other people that they do not want to give - their approval.
Todd
I am having an emotional response to your statements about the coercive nature of this in-your-face gay marriage thing. I would feel sympathy for members of a religious organization who did not want to have a gay married couple, or one of the marriage partners of such a couple employed in their organization, if the members believed homosexuality is wrong according to their faith. Yet if same sex marriage is legal, the organization could be charged with discrimination and forced to have such a situation “in their face.”
Is there something deeply wrong with this scenario? Do the religious people have rights too? The right not to be caused mental and emotional anguish? We let people get divorced because of irreconcilable differences and mental cruelty. Why can’t irreconcilable differences apply to picking people you hire to be in the same office with you all day? Why should anyone have to put up with irreconcilable differences?
But then I feel sympathy for the gay couple too. They might harbor secret hopes of reconciling the irreconcilable. They might feel the need to press for more than just being tolerated as the religious make the best of a bad situation. They might feel they need to be there, hoping to be accepted as human beings in the presence of other human beings.
If I had to choose, in an ideal world, I would say let the religious decide for themselves at what rate they can accept social change. Nobody should be forced by law into an emotionally upsetting confrontation they don’t feel ready for.
However, if I had to choose in this actual world, not the ideal world, I would be influenced by my experience that people will perpetuate injustice and discrimination indefinitely if it is left up to what they feel able to deal with. We just don’t deal with it, unless we are forced to.
As we human beings thrash out our social norms in our various cultures, we don’t even know how we do it. We are draped in prejudices and traditions and set in our world views. We long for unity and agreement…. well, I long for unity and agreement…but it seems out of the whole population of a nation, never more than a few hundred thousands at a time get to experience that thrill of being of one mind, in agreement. And now it’s the whole world we want to agree on quite a lot of shocking ideas about keeping children loved and fed and safe, educating women and girls, valuing every single person, and agreeing every one of us has certain rights, just because we are human…
The law discriminates and makes its distinctions as we keep on refining our ideas of what our norms are. Where indeed is the line beyond which a person can just be left alone? The courts should ideally have a “feel” for the collective consciousness of the society, but the society is unraveling.
We are straining in a state of tension between the sense of withdrawal, detachment and isolation where people don’t want to be bothered with other people’s problems, don’t want to pay for others’ mistakes, don’t want to fight other people’s battles… and the opposite sense of an underlying human oneness coming into awareness contradicting the separateness and insisting on the existence of connections, unity and a sense of identity with people. Such tension! We want to make everything hold still and stay the same. If some people are shut out, keep ‘em out. No! Let ‘em all in….them and all their kind and the horses they ride in on. No! No! Noooooo!
Are you really concerned about people demanding approval they don’t want to give? Approval is something interior. No one can be made to “approve” something if in their heart of hearts they disapprove. To legalize gay marriage is not giving approval of homosexuality, but it is giving acknowlegement that yes, it does exist. I need not approve of two women being sexually attracted to each other. It may make me very uncomfortable that they are. I may wish that such a thing did not exist. Yet I know I have no right to cut them off from that part of their humanity which includes their sexuality and their desire to be faithful to each other and make a family together. They have a right to that. I think they also have a right to fit into the social community.
Posted by: Katharine Johnson at March 6, 2004 12:59 AM
Gay marriage is about getting rights you can make others recognize. It is not about the rights between the couple. I have not done an exhaustive analysis but most of the benefits of marriage can be acquired by contracting. Granted there are tax implications, but my solution to that is end the income tax.
What they cannot get by private contracting is the right to force others to recognize their relationship.
A few days ago the CA Supreme Court held that Catholic charities had to provide birth control as part of their health care. Birth control is counter to their beliefs. So, they either have to stop providing a much needed social service, violate a central tenet of their faith, or disobey the law. This is fair? How soon until a court decides that Catholic charities must provide health benefits to a gay employee - who they probably had to hire under threat of a lawsuit?
This argument has nothing to do with the rightness or wrongness of any position: it only has to do with freedom. People should be able to lead their lives as they choose without imposing their views on others. This means that a hetero cannot knock the door down and arrest a gay couple nor does it mean a gay couple can demand that their choices get subsidized in the form of benefits. The flip side of freedom is that people will make choices some people disagree with. However, to say they cannot make these decisions is just another form of tyranny. Beyond broad outlines of what is permitted (the golden rule) people should be able to do what they want. We have way too much respect for diversity in this country and not nearly enough tolerance.
