Gay Marriage and Its Constitutionality

Gay Marriage and Its Constitutionality

Although civil rights activists in the United States have been campaigning for legal recognition of gay or same-sex marriage since the 1970s, the issue has invited greater national attention in recent years as an equally strident anti-gay marriage movement has also appeared on the scene that wants to amend the U.S. constitution to outlaw gay marriages. The politicians, the state and federal courts, civil libertarians, religious groups, and the general public have all joined the debate and have widely differing views on the subject. In this paper I shall look at the topic of gay marriages, discuss what the controversy is about and analyze its constitutional status.

Marriage, Gay Marriage and Same Sex Unions

Marriage" is commonly thought of as a partnership between two members of opposite sex known as husband and wife who live together, have sexual relations only with one another, share their economic resources, and are recognized as parents of their children. Gay people, however, challenge such a definition of marriage. They argue that persons of the same sex who are committed to living together and sharing the same responsibilities as any other married couple have every right to marry too. Since marriage is not just a personal contract between two individuals and entails a number of legal issues as well, e.g., inheritance, taxes, divorce, parenting rights, insurance and pension benefits, the issue of gay marriages is understandably controversial. Other terms related to gay (or same sex) marriage are 'same-sex union,' 'civil union' and 'registered' or 'domestic partnerships.' These terms are used to distinguish them from conventional heterosexual 'marriage.' For example, in Connecticut and Vermont, same-sex couples can join into 'civil unions' and be entitled to all of the state-level rights and benefits of heterosexual couples. Such 'civil unions', however, do not provide the federal-level rights, benefits and protections that married couples are provided with. Similarly, California and New Jersey have 'registered partnership' laws that allow similar benefits to gay couples, but both stop short of full civil union benefits. ("Same-sex marriage in the United States"-Wikipedia)

The Controversy

The issue of gay marriage is controversial because most religious and conservative people believe that the institution of marriage was created for the purpose of procreation with all its related implications such as raising of children in a responsible manner etc. They believe that homosexuality and same-sex relationships are sinful and recognition of gay marriages would undermine the institution of marriage. On the other hand, proponents of gay marriages believe that the U.S. constitution provides for a strict separation of the church and the state and as such religious arguments do not have legitimate place in the debate. They also argue that the Fourteenth Amendment protects the right of private consensual sex and prohibition of gay marriages is a violation of such rights.

The Constitutional Debate

The Federal Defense of Marriage Act (DOMA) the issue of Gay marriage came to the forefront of national debate in 1996 when several gay couples from Hawaii sued for the right to legally marry. It resulted in a counter movement and the passage of "The Federal Defense of Marriage Act (DOMA)" by the Congress in 1996. The Act defines marriage, for purposes of federal law, as the legal union of one man and one woman and gives each state the right to refuse recognition of same-sex marriage licenses issued by other states. However, the act does not prohibit states from allowing gay marriages although it denies federal recognition of gay marriages. (Johnson, "Federal Defense..."). Thirty-nine states have since that time adopted legislation similar to DOMA.

State Laws Recognizing Same Sex Unions: The passage of DOMA did not deter gay-right activists in their campaign for the legal recognition of gay marriages and in 2000, Vermont became the first state to allow gay partners to join in a civil union with the same rights enjoyed by married heterosexual couples under state law. Maine, Hawaii, California, New Jersey, and Connecticut have also enacted laws that give some degree of rights to gay civil unions and partnerships since then. On November 18, 2003, in Goodridge v.Department of Public Health, the Massachusetts Supreme Judicial ruled that: "barring an individual from the protections, benefits, and obligations of civil marriage solely because that person would marry a person of the same sex violates the Massachusetts Constitution." (Quoted in Hillary Goodridge & others v. Department of Public Health...") Implementing the Court's decision, Massachusetts made same sex marriage legal in the state on May 17, 2004; it is thus far the only state to do so. Most other states have enacted constitutional provisions that define marriage as a union of one man and one woman.

Conservatives Propose Constitutional Amendment: The legalization of gay marriage in Massachusetts and issuance of marriage licenses by some other states has created a backlash among the conservatives, and right wing religious groups. They have proposed an amendment in the U.S. constitution that would prohibit same-sex marriage at the federal level. On February 24, 2004, President George W. Bush proposed a 28th Amendment to the U.S. Constitution called the "Federal Marriage Amendment" (FMA) by declaring: "our nation must enact a constitutional amendment to protect marriage in America." ("President Calls for...") the proposed FMA intends to take the Federal defense of Marriage Act a step further by reserving the rights of marriage for a man and woman only as it proposes a federal definition of marriage as "the union of a man and a woman." The amendment would restrict each state's own definition of marriage allowed in DOMA and would also limit judiciary's powers by overriding anti-discrimination guarantees. Voting on the proposed constitutional amendment has not taken place so far as an amendment in the U.S. Constitution requires approval by a two-thirds majority in the U.S. House of Representatives and the Senate, and ratification by three-fourths or 38 of the state legislatures. This is unlikely to be achieved in the foreseeable future. Liberal institutions such as the ACLU actively campaign against the proposed amendment and consider it a reversal of our constitutional tradition of protecting individual freedoms. (Johnson, "Federal Marriage Amendment")