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Liberty and Justice for All

2008 December 19
Posted by XR4-IT

Because of the oppression that American colonists faced before the Revolution our founders embraced certain ideals in establishing a new government that would recognize that all are created equal and that we are entitled to the rights of life, liberty, and the pursuit of happiness. A constitution was adopted to fortify these ideals. Throughout our history laws have been instituted and the Constitution amended to again see that these rights were extended to those who had formerly been denied equal standing under the law.

While we strive to ensure liberty and justice for all we must recognize that not all Americans are treated equally by the laws of this nation. Homosexuals are treated unfairly under American law in that their relationships are not given full legal status.

The question of same-sex marriage is a complex one. While homosexuals seek the rights of marriage for a variety of reasons there are many who are opposed to extending marriage rights to their same-sex relationships, and there are others still who for whatever reason don’t feel that they understand the question.

People who don’t understand the issue may ask, “What’s the big deal? Why do gay people want to get married?” An equally valid question may be, “Why do people want to get married at all?”

People marry because they make vows of love and commitment to one another. They commit all that they have to care for each other and support their partner for better or worse. They then therefore make a legal contract to gain recognition as a family, and legal protection for their partnership.

Homosexual couples are no different in their ability to give love and commitment to each other. They, however, are denied the ability and the right to form the legal contract of marriage, or have their partnerships formally recognized as a family. Yet same-sex couples would impose on themselves all of the obligations and commitments of marriage. Thus they in their relationships are not given “equal protection of the laws” (US Const. Amendment XIV) as guaranteed in the constitution by the 14th amendment.

According to the United States General Accounting Office, as of 2004 there were 1,138 statutory provisions in federal law alone in which marital status is a factor (gao.gov). These laws include joint federal tax filling, access to Social Security benefits, military benefits, and so forth. Beyond the 1,138 provisions in federal law, states also provide a variety of rights and protections to people who are married. These rights include but are not limited to the right to inherit property, the right to joint adoption, family visitation rights, access to domestic violence intervention, next-of-kin status for emergency medical decisions, and the list continues. Among all these rights is the right to the respect and dignity of the title of marriage.

Though the federal government recognizes and extends rights to marriages, it does not recognize all of the marriages that are legally performed in the United States. In 1996, foreseeing that a state would one day legalize same-sex marriage Congress passed the Defense of Marriage Act. The Defense of Marriage Act is a law that states, “No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship,” (thomas.loc.gov).

It also goes on to say, “In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife” (thomas.loc.gov).

This means that even though a state such as Massachusetts or Connecticut performs a same-sex marriage the other states and federal government are not required to recognize the marriage, despite the Full Faith and Credit clause of the Constitution, “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 Act, Records and Proceedings shall be proved, and the Effect thereof,” (US Const. Article IV). While Congress is given power to prescribe the effect of such acts, is no effect in any way Full Faith and Credit? Not only does the Defense of Marriage Act isolate same-sex marriages from taking effect in another state, it also blocks the Civil Unions and Domestic Partnerships provided by some states from taking effect in other states as well, thus leaving same-sex couples with no rights or protections regarding their relationships.

We live in a democratic society where laws have been made banning same-sex marriage, yet advocates of same-sex marriage have perused many means in attempts to secure the rights to marriage that they seek. At times the legislators have been appealed to, and others have appealed directly to the electorate. Activists have even made their case to the courts, and this has been the most criticized; however, in this nation the Federal Government and the States have instituted constitutions with the purpose of protecting the people from oppressive laws, and judges have been provided to ensure that the laws instituted do not violate these constitutions. To paraphrase Hammurabi’s Code, “To bring about the rule of [law] in the land so … that the strong should not harm the weak,” (wsu.edu) and who are these that are weak? These are they who do not have a voice strong enough to save themselves from the mobocracy that would otherwise prevail. This is why it is right that judges have and do make rulings citing constitutions in the overturning of illegal laws.

There are many reasons that people are opposed to same-sex marriage. Some may argue that marriage is for the propagation of the species and the homosexual relationships are of themselves sterile. I would first ask; is marriage even required for the propagation of the species? The answer to this question is, no of course not. Humans are perfectly able to reproduce outside of a marriage relationship. Also some married couples choose not to have children, while others still are unable to conceive at all. If marriage was something purely to promote reproduction these unions would not be permitted. In our society marriage is more than a simple path to procreation, but a commitment to a partnership.

Some who are opposed to same-sex marriage believe that marriage between a man and a woman is a tradition, and should be preserved only between a man and a woman for tradition or history’s sake. The idea that something should remain the same because it is historic or traditional, however, is a false one. Historically our ancestors believed that the Earth was the center of the universe. By tradition kings ruled by divine right, and women were subjugated to men. Likewise, slavery permeated ancient cultures, and social inequalities between races were perpetuated by tradition.

If we base our laws purely on tradition or history we are simply basing them on things that are very old. Marriage is a tradition, even a good one, but one that has shifted over time. Marriage is no longer the contract between a father and son-in-law for the exchange of a wife, nor is bigamy a celebrated part of society. Within America’s own history where marriage was once restricted from interracial couples, the laws and traditions have shifted to grant marriage rights to couples of any racial combination.

As it has before, marriage is a tradition that has room to grow. It can and should expand to include same-sex couples who seek to commit to the responsibilities of marriage, and if they take upon themselves all the same responsibilities and commitments they should also be granted all of the same rights.

Some may be opposed to same-sex marriage for religious reasons and see it as a moral issue, however can we as Americans impose a commandment from one religion or another onto those who don’t follow that religion? Some religions believe that birth control and contraceptives are immoral, and in some parts of the world the use of birth control either is or has been illegal, but as Americans do we impose those religions commandments against birth control onto people who do not believe that it is immoral? No we let people who want or need to use birth control and contraceptives use them but we also let people who believe that it immoral to abstain from their use. Furthermore some religions affirm same-sex marriage, and the laws cannot give more or less value to these religions. Being that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof,” (US Const. Amendment I) we cannot use the laws to impose the commandments of anyone’s religion onto the citizens of the United States.

Others still believe that marriage purely belongs to religion. Yet while marriage may have a religious component, it has become a civil matter because of the rights and protections granted unto people who are married are granted by civil governments.

Others fear that allowing same-sex marriage rights in the United States could potentially infringe upon the rights of others in practicing their religion, fearing that churches and religions would be forced by law to condone same-sex marriages and even perform them.

In the United States our constitution explicitly states, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” The 14th amendment also says, “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” These together assure us that no law that will infringe on the rights to freedom of religion can be maintained. An example of this principle can be seen in the way the Catholic Church regards marriage. Catholics do not condone the remarriage of someone who has been divorced, and the Church is not required to perform marriages that they do not condone.

Another concern that people hold in regards to legalizing same-sex marriage is the question on how same-sex relationships will be discussed in schools. Protectmarriage.com a website operated by a coalition dedicated to the prohibition of same-sex marriage said this about education, “it [the prohibition of same-sex marriage]protects our children from being taught in public schools that “same-sex marriage” is the same as traditional marriage,” and, “We should not accept a court decision that may result in public schools teaching our kids that gay marriage is okay. That is an issue for parents to discuss with their children according to their own values and beliefs,” (protectmarriage.com).

The fear is that if same-sex marriage is legalized that homosexuality and same-sex relationships will be discussed as being acceptable, or presented in a positive light; however, legalizing same-sex marriage is not a prerequisite to discussing homosexuality and same-sex relationships in public schools. Homosexuality or sexuality of any nature is a sensitive subject, and needs to be handled in an age appropriate manner, but we do not need to ban same-sex marriage to do it nor will that solve the issue. We need to work together and take the issue to the school boards and state legislators to see that care is taken in the presentation of this topic and that it is discussed in an age appropriate manner; however, we cannot determine a public schools’ curriculum based on the varying religious beliefs of the students or their families. Nor can families afford to believe that they are the only source of moral thinking in their child’s life. Parents who disagree with what is being taught in schools should take time to talk with their children and explain to them the beliefs and values that are held by them and their family. Biological evolution as the origin of species is also a subject that offends the religious views of many, yet public schools as a state institution must teach in a manner that is neutral to religion, and sexuality should be approached likewise, leaving parents free to teach their own values and beliefs in the home.

You may ask, “Why marriage? Why can’t the laws make one institution for gay people and call it something like a ‘Civil Union’ and leave marriage for heterosexual relationships?” The answer is because using laws to implement separate institutions for opposite-sex couples and same-sex couples creates a distinction that can be used to infer that an institution is preferred or is superior to the other, and when the commitments and obligations of a same-sex relationship are the same as those entered into by opposite-sex couples we cannot make such a distinction and maintain “Equal protection of the laws.”  And if they do not receive “equal protection of the laws” as guaranteed by the Constitution, we risk abandoning the ideals that this nation was founded on, and no longer offer the promise of “liberty and justice for all”.

2 Responses
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