The American government, founded on the ideals of men wishing to escape persecution and tyranny, is a secular institution shaped by the Constitution and its Amendments. Over the two hundred plus years that America has been a country many infractions, oversights and misinterpretations have occurred which have unfairly inhibited the freedom of the American people. This truth can be seen in the continued refusal by the government as a whole to accept, legalize or recognize same sex marriages, which has led to unrest and dissention among the homosexual community and its supporters.
This was an issue that was brought up in Dan Savages, The Kid. Same sex marriage, although a recent hot topic, is neither new, nor an unnatural product of the twentieth century, as many claim. Evidence of social acceptance of gay marriage can be found in Egyptian culture as far back as 2600 B. C. , as well as in ancient Rome and medieval Europe. (Eskridge 17) More recent evidence of gay marriages has been found in colonial America, as well as during the twentieth century in East Coast communities such as Boston and Harlem.
During both world wars, official marriage certificates could be obtained for gay couples in Harlem on a somewhat legal basis. (Eskridge 39-44) Despite the evidence of these fairly common unions, many of our law makers strongly oppose the legalization of the practice in America, based on the opinion that as heterosexuals they hold a sexual and therefore social superiority to homosexuals. Homophobia in America surfaced during the 1950s and 60s and was soon met by the protests and resistance movement of the homosexuals.
Because of the civil rights movement, which was in full swing, the gay acceptance movement was overshadowed and received diminished media attention. (Eskridge 44) Since the original Civil Rights Movement, the Gay Rights Movement has moved to center stage in American Civil Rights debate. These basic rights, denied not just to some, but all homosexuals are mainly concerned with the institution of marriage. The argument can be made that marriage is something that homosexuals shouldnt want to take part in, but this is incorrect.
The legal status involving marriage gives spouses certain state and federal benefits such as automatic inheritance, burial determination, divorce protections, immunity from testifying against spouse, certain membership, taxation and insurance breaks to which all people, including homosexuals are entitled to. Despite this long list of unattainable benefits, same sex marriage is still being denied due to the moral dilemmas some feel surround the issue. Many ask, Can marriage be simply redefined in the law?
Should an institution that is available for deadbeat dads and convicted felons be denied law-abiding lesbian mothers of young children? Can a fundamental right to marry be unequally dispensed? (Sullivan 87) The answer is yes, marriage can and should be redefined by the law. Vermonts legislature passed a law that legally recognizes a civil union, but it does not include all the benefits of marriage heterosexual couples are afforded. In 1996 President Clinton signed into the law the Defense of Marriage Act.
The act defined marriage as being between two people of the opposite sex, as well as making it legal for one state to deny a marriage certificate of another state if it is between two people of the same sex (Sullivan 201). This piece of legislation legally discriminates against the estimated ten percent of the American population. All fifty states currently refuse to recognize same sex marriages, however Vermont, California, Hawaii, and most recently Massachusetts have begun to take steps to recognize the relationships of homosexuals.
Hawaiis brush with same sex marriages represents an up and coming trend of court battles between homosexual couples and state governments. In Baehr v. Lewin, the Hawaii Supreme Court agreed that a total ban on same sex marriages violated the Hawaii Constitution. The Courts ruling stated that Homosexuals in contracted domestic partnerships were not to be denied pension of insurance benefits or inheritance of other state tax deductions available to spouses, thereby assuring fairness as taxpayers and equal treatment as employees but not including the state of matrimony.
The ruling disappointingly lacked the marriage recognition clause, and to the dismay of gay rights activists, the ruling was later overturned (Sullivan 104). Many disappointing rulings have been handed down over the last century, but the Hawaii ruling is by far the most significant (until 11. 19. 2003 when the Massachusetts Supreme Court legally recognized gay marriage). Gay rights activists and attorney have sited basically four Amendments in the Constitution for the basis of their argument. These four include the 1st, 8th, 9th and 14th Amendments.
The argument for violation of the first Amendment, [Congress shall make no law respecting an establishment of religion . . . ] is based on the religious controversy surrounding homosexuality and same sex marriages. Because most religions do not support homosexuality at all, they harshly disagree with the idea of marrying a homosexual couple. This religious or moral card is often played in the supposedly secular legislative branches and courtrooms.
Its dominance is obvious in many official records, such as that of Singer v. Hara in which the Courts decision stated, The states refusal to grant a license allowing the appellants to marry one another . . . is based upon the states recognition that our society as a whole views marriage as the appropriate and desirable forum for procreation and the rearing of children (Sullivan 97). There are many American heterosexual couples who are infertile or make the decision never to have children, thus the religious reference to procreation as being the purpose of marriage is an unsuccessful basis of denying homosexual marriage.
By using these all-encompassing statements such as society as a whole, which are obviously religiously backed, the government has ignored the first Amendment. The 9th Amendment, stating that cruel and unusual punishment [shall not be] inflicted upon any U. S. citizen is a second common argument of gay rights activists. Just as the Jim Crow Laws of the South were directed at the African Americans as punishment for their skin color, denying homosexuals of the right of marriage, the State is, in a way, enforcing laws to punish citizens for their sexual orientation.
By doing just that, this democratic country is regressing to the semi-noble rule of a certain class defined as the legislative body. The 9th Amendment states, The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people In Loving v. Virginia, Justice Warren of the U. S. Supreme Court used the following statements to legally define marriage as the Court perceived it. Marriage is one of the basic civil rights of man, fundamental to our very existence and survival . . .
It also felt, The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness . . . (Sullivan 90). Being that marriage is an integral part of the Constitutional rights of life, liberty and the pursuit of happiness, it is logical to assume that denying certain individuals the right to marry the person of their choice because society as a whole views their choice as immoral would interfere with the 9th Amendment. Although it has never ruled in favor of same sex marriage, many U. S. Supreme Court rulings on the subject can be seen leaning heavily toward it.
One such example is the ruling in Zablocki v. Redhail, which the majority opinion is quoted as stating This Court has long recognized the freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the 14th Amendment. (qtd. in Sullivan 98) The Due Process Clause states, 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.
The conclusion should be made that denying same sex couples of marriage and all its privileges does not provide for equal protection, nor the other rights guaranteed to them by law. This lean towards same sex marriages suggests that the Supreme Court, which is composed of some of the brightest minds in America, is starting to realize the ramifications of their refusal to legalize the practice. The length of time it will take them to admit their mistake is something that remains to be seen.
Because hindsight is twenty-twenty the American people will someday be able to say that homosexuals always were entitled to the rights of marriage. However, today all personal and religious feelings must be put aside in an effort to force legal recognition of these rights. The American public must not continue into this millennium by letting this type of segregation and unequal access to the law to a specific portion of the population.
