Same-Sex Marriage - Equal Protection Term Paper

Excerpt from Term Paper :

..In determining the meaning of any Act of Congress, or 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 wife." (Smith, 2004; p.5) Smith relates that a federal bankruptcy court in the Western District of Washington found DOMA to be constitutional and that no constitutional rights exists for the individual to marry someone of the same sex and as well that DOMA does not violate the Fourth, Fifth or Tenth amendments, not the principles of comity. (in re Lee Kandu and Ann C. Kandu, No. 03-51312 - Western District of Washington, Aug 17, 2004; as cited in Smith, 2004; p.5)

There are potential constitutional challenges to DOMA, which exist, and it is argued by some that "DOMA is an unconstitutional exercise of Congress' authority under the full faith and credit clause of the U.S. Constitution." (Smith, 2004; p.5) Article IV, section 1 of the Constitution, the Full Faith and Credit Clause 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." (as cited in Smith, 2004; p.5) According to Smith (2004), in the CRS Report to Congress: "Conversely, some argue that DOMA does nothing more than simply restate the power granted to the States by the full faith and credit clause. While there is no judicial precedent on this issue, it would appear that Congress' general authority to "prescribe...the effect" of public acts arguably gives it discretion to define the "effect" so that a particular public act is not due full faith and credit. It would appear that the plain reading of the clause would encompass both expansion and contraction." (p. 7) Smith writes that constitutional constraints on federal legislation exist and most notable in its relevance is the equal protection clause and the effect "of the Supreme Court's decision in Romer v. Evans which resulted the referendum-adoption provision of the Colorado Constitution being struck down under the equal protection clause which "repealed local ordinances that provided civil=rights protections for gay persons and which prohibited all governmental action design to protection homosexuals from discrimination." (Smith, 2004 p. 6)

In this particular case, it was held by the Court that: "...under the equal protection clauses, legislation adverse to homosexuals was to be scrutinized under a 'rational basis' standard of review. This classification failed to pass even this deferential standard of review, because it imposed a special disability on homosexuals not visited on any other class or people and it could not be justified by any of the arguments made by the State. The State argued that its purpose for the amendment was two-fold: (1) to respect the freedom of association rights of other citizens, such as landlords and employers who objected to homosexuality; and (2) to serve the State's interest in conserving resources to fight discrimination against other protected groups." (Smith, 2004; p. 6)

Smith (2004) sates that the Due Process Clause of the Fourteenth Amendment is another "possibly applicable constitutional restraint." (p.6) Additionally, is the effect of the decision of the Supreme Court in Lawrence v. Texas "which struck down under the due process clause a state statute criminalizing certain private sexual acts between homosexuals." (2004; p. 6) the Fourteenth Amendment's due process privacy guarantee was found by the Supreme Court to extend to protect consensual sex between adult homosexuals. Smith states that the general rule regarding validation for marriage is the law existing in the state of the marriage. A marriage that complies with the state in which it was contracted will generally be held to be valid in other states. This is only an exception in cases where "...another State's law violates '...some fundamental principles of justice, some prevalent conception of good morals, some deep-rooted tradition of the common weal." (Smith, 2004 p. 7)

II. THEORETICAL and PHILOSOPHICAL BASIS for POSITION AGAINST the work of Somerville (2003) entitled: "A Case Against 'Same-Sex Marriages" submitted in a brief to the Standing Committee on Justice and Human Rights 12 April 2003 states: "Marriage is, and has been for millennia, the institution that forms and upholds for society, the cultural and social values and symbols related to procreation. That is, establishes the values that govern the transmission of human life to the next generation and the nurturing of that life in the basic societal unit, the family. Through marriage our society marks out the relationship of two people who will together transmit human life to the next generation and nurture and protect that life. By institutionalizing the relationships that has the inherent capacity to transmit life - that between a man and a woman - marriage symbolizes and engenders respect for the transmission of human life. To change the definition of marriage to include same-sex couples would destroy its capacity to function in the ways outlined above, because it could no longer represent the inherently procreative relationship of opposite-sex bonding. It would be to change the essence and nature of marriage as the principal societal institution establishing the norms that govern procreation." (2003) Somerville states that "Culture is what marks us as human; it is what distinguishes us and allows us to distinguish ourselves from other animals, and in the future from intelligent machines." (2003) in the past, religion was used "as an important forum and force in the foundation of culture - we did so by finding shared values through religion. That is not possible in secular society; one result is that it makes it more difficult to find consensus on values. To form a society, we must create a societal-cultural paradigm - the collection of values, principles, attitudes, beliefs, and myths, the 'shared-story' through which we find values and meaning in life, as both individuals and society." (Somerville, 2003) One argument posited supporting same-sex marriage by those who advocate the same involves the argument that restriction of marriage to couples that are opposite-sex upon the need of society for this basis of institution symbolizing the procreative nature of the man-woman relationship "means that opposite-sex couples who cannot or do not want to have children should be excluded from marriage, or more extremely, that only a man and a woman who produce a child should be allowed to marry." (Somerville, 2003; p.4) Marriage then, can be understood to stand representative for the potential: "... between a man and woman and their failure to produce offspring has no power to damage the symbolism which marriage between man and woman stands in representation of in both society and culture. According to Somerville, the role of marriage in: "...upholding respect for the transmission of human life - which is the first event in procreation - is of unusual importance at the present. We are facing u precedent challenges to that respect because of new techno science that opens up unprecedented modes of transmission of life." (2003) Exclusion of same-sex marriage is not relative to the homosexual orientation of those individuals or to them as individuals. Furthermore, it is not to adjudge their relationships as unworthy, but instead upholds the principle: "...that a fundamental purpose of marriage is to engender respect for the transmission of human life." (Somerville, 2003 p.5) Furthermore, Somerville relates that marriage institutionalizes this 'inherently procreative relationship" as being one that is "fundamental to society and requires recognition as such. Marriage carries important norms and values, 'memes'..." (Somerville, 2003; p.5) or long-standing units of deep cultural information related from generation to generation and specifically related to reproduction. (Somerville, 2003; paraphrased) Somerville relates of marriage that it "makes present in the present, the deep collective human memory concerning the norms and values surrounding reproduction." (2003; p.5) to convey the same authority and legal status of marriage between same-sex couples "...would seriously harm all of these societal level functions of the institution of marriage." (Somerville, 2003; p.5)


The American Psychological Association reports in a 2005 position statement that they stand in support of legal recognition of same-sex civil marriage because: "As physicians who frequently evaluate the impact of social and family relationships on child development, and the ability of adults and children to cope with stress and mental illness..." It has been noted by psychiatrist as to the "...invariably positive influence of a stable adult partnership on the health of all family members." (2005) Stated as cornerstones of the individual and family's network of social support are "...sustained and committed marital and family relationships..." which serve to assist human beings in phases of the individual's life characterized by challenge, stress, illness and even loss. A substantial amount of…

Sources Used in Document:


Smith, Alison M. (2004) Same-Sex Marriages: Legal Issues - CRS Report for Congress RL31994. 24 Sept. 2004. Online available at

Somerville, Margaret (2003) the Case Against 'Same-Sex Marriage' Brief Submitted to the Standing Committee on Justice and Human Rights 29 Apr 2003. Online available at

Support of Legal Recognition of Same-Sex Civil Marriage (2005) American Psychological Association (APA) Position Statement, 2005 May. Online available at

Same-Sex Marriage in Washington (2006) Washington State Bar Association. Media Backgrounder #1. Online available at

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