It is humbly submitted to the Hon'ble Court that this respondent as per the issues and syllabus cited submit that the issues of the litigation pertain -- not only to the law of marriage, but also to the recognition if it must be accorded to same sex marriages and unions, and whether no recognizing this social development amounts to denial of the constitutional rights of a group of citizens. It is also pertinent to question if the states in allowing adoption to opposite sex couples and denying the same to same sex couples. The question then becomes still deeper with the challenge of the validity of same sex marriages.
It is still with various states to give effect to the Defence of Marriage Act -- DOMA and the definition of marriage as per section 3 of the act makes marriage between a man and a woman alone valid. The debate if this definition is valid is now before the U.S. Supreme Court and is being discussed as on date of this petition in Gill et al. v. Office of Personnel Management, (2012) (See reference 1) The constitutionality of section 3 of the Defence of Marriage Act -- DOMA, that defines 'a legal union between one man and one woman as husband and wife' and 'spouse' as 'a person of the opposite sex who is a husband or a wife.' The question then is not merely if the no recognition of such marriages, but if the recognition or denial affects the fundamental rights. It is submitted that between two women and two men, marriages are not legally recognized in many states. Thus persons who contract a marriage of the same sex do not get the privileges of the law that is given to normal marriages.
The question therefore is primarily if states differ in the view of marriage and there are Federal issues like inheritance, tax and medical facilities that are denied, then is it not a denial to a class of persons their fundamental rights merely because the state does not recognize a marriage? For example the state of Beta limits civil marriage to opposite-sex couples; it does not prohibit same-sex couples from marrying in non-civil, private ceremonies -- the law simply does not recognize such marriages, and thus affords them no legal benefits. And, although state law does not recognize any type of civil union, it allows two individuals of the same sex to cohabitate in a relationship that involves sexual activity; biological children of any member of a household containing same sex cohabitation relationships are allowed to reside in the household.
3 Only opposite sex couples who are married can adopt children. This is different from the stand of the state of Delta that allows opposite-sex couples to enter into civil marriage and same-sex couples to enter into civil unions; both legal relationships provide exactly the same level of legal rights and privileges. In short, legally speaking, their difference is in name only. Only opposite sex couples who are married can adopt children. Now the enforcement of civil rights that pertain to identical persons inside each of these states would differ. There is also a change in policy with state Epsilon has a policy identical to that of Delta, except that in Epsilon any couple in a married or civil union can adopt children. It is also relevant to point out that the attendance of such marriage by guests and other supporters a crime.
Thus all of the above states make it a crime for any person to knowingly and voluntarily participate in, either as a principal actor or as a guest in attendance, any type of event designed to anoint a marriage, civil union, or any other type of status that signifies a loving and committed relationship between more than two individuals through the recitation of vows that articulate the love and commitment that the individuals have for one another. This anomaly is pointed out that where same sex marriages are regarded as illegal and aa crime, participants generally would become accessories before and after the fact. Now on one hand the marriage though not appreciated is condoned as not an offense lf, and if the conduct is non-offense, how can attending the marriage become abetment? This requires deep examination.
4. The first question therefore would be if the prohibition or the refusal to recognize marriages between the same sex -- and confining marriages to the section 3 of the DOMA violate the fundamental rights of a citizen, and is there discrimination? It is submitted that there are firstly violation of the fundamental rights insofar as making the same sex marriage illegal by taking the roundabout method of making its occurrence illegal at the same time allowing it to happen as shown where the parties attending the marriage are criminalized.
5. It is submitted that in a plethora of cases, as in the case of discrimination and The Equal Protection Clause of the 14th amendment of the U.S. Constitution all individuals must be treated in the same manner, and therefore from the point-of-view of attendees fo the marriage they are being discriminated against where the marriage is allowed but the attendees are incriminated. Secondly if the same sex marriage has not been prohibited expressly, but is not a part of civil right as recognized, the equal application of the law is nullified and the equal protection clause of the constitution is violated and the states have been denied the ability to discriminate, and thus violation of the equal protection clause of the Constitution is also a violation of the civil rights.
6. Two cases Hollingsworth v. Perry Proposition 8 and United States v. Windsor (the challenge to Section 3 of the federal Defence of Marriage Act). Are before this court, and the arguments advanced therein though cannot be clubbed in this case, are of importance. It is not known what the Hon'ble court would rule on DOMA, but one fact has been made clear that the issue merits national concern, because the United State government is involved and there is a Federal Matter, and the President of the United States in re Windsor has taken a stand that section 3 of DOMA is unconstitutional. If the definition of a marriage between a man and a woman only -- a definition that the Government finds unconstitutional it follows that the affidavit of the United States makes it clear that the states that discriminate on the ground that same sex marriages are mala prohibitia are violating the constitutional rights of the people. Even before these cases reached the Supreme Court, there have been judgments from many state Supreme courts that same sex marriages are as valid as the heterosexual ones.
It is submitted that the courts have always ruled in favour of individual freedom especially in marriages. In Meyer v. Nebraska, 262 U.S. 390, 399 (1923): The Hon'ble court asserted that the right "to marry, establish a home and bring up children" is a central part of liberty protected by the Due Process Clause. Likewise in Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 541 (1942): Marriage is acknowledged as a basic civil rights of man. And the right of privacy begins with a marriage Griswold v. Connecticut, 381 U.S. 479, 486 (1965): where the court contended that "Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects.
7. Yet it is an association for as noble a purpose as any involved in our prior decisions." Now it is submitted that nowhere has the association been defined as beween only the opposite sexes as a natural order of things. It is submitted that while for procreation a man and woman are thus necessary the broad prevalence of single mothers who may procreate without marriage and such procreation now being legal makes the necessity of marriage between opposite sexes necessary to create a family. It is also submitted that between persons, the love, sympathy and empathy that goes with a marriage need not be confined to a man and a woman. If that was the case the issue of same sec marriages would never have occur in society.
The freedom to marry is a right that can be exercised by individual as stated in Loving v. Virginia, 388 U.S. 1, 12 (1967): "The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men." Likewise in Boddie v. Connecticut, 401 U.S. 371, 376, 383 (1971): The Courts have extended the liberal view with regard to the marriages in Cleveland Board of Education v. LaFleur, 414 U.S. 632, 639-40 (1974): "This Court has long recognized that freedom of personal choice in matters of marriage and…