Why it is Unconstitutional to Ban Gay Marriage

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Last updated: April 6, 2019

Section 5 of Hawaii constitution provides equal protection of the law. The equal protection clause says: “no person shall be… denied the equal protection of the laws, nor be denied the enjoyment of the person’s civil rights or be discriminated against in the exercise there of because of race, sex, religion or ancestry” (Statsky, W.P. 2002, p. 133). Based on this section of Hawaii constitution, it expressly prohibits the state from passing any legislative act that would discriminate against any person in the exercise of his or her civil rights on the basis of sex.Individual rights and freedom are not only guaranteed by the constitution regardless of one’s ethnic origin, sex, religion and social status, it is also protected and uphold by the constitution.

Indeed, there is basically nothing in same sex marriage that constitutes any legal    ground to ban it except the religious doctrines that the intentions of marriage belong only to the opposite sex. The gay rights to same sex marriage are within the provision of the constitution. Regardless of church doctrine, it is their fundamental right to have someone to love and to be with and to chose whom they want to be with. The government should not in any way yield to religious dogmas in view of the separation of powers between church and the state, rather uphold and protect the rights of the individual regardless of sex, religion, race, social status, and ethnic origin.

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Banning gay marriages is tantamount to suppression of human rights and is therefore unconstitutional. The issue that has to be settled is the constitutional rights of the affected party that stands to be forfeited merely because of the religiosity of the argument.Based on this elaborated thesis, this paper will attempt to trace development of the of the arguments regarding the issue and try to provide a clear picture of the entire argument.Arguments on the constitutionality of gay marriagesOne of the arguments held by those who are laboring to ban same sex marriages is that there is an existing public policy in some states that still criminalizing consensual sodomy. However, there is no strong public consensus that the validity of same sex marriage offends the public sense of morality. The fact that same sex marriages is allowed in some states particularly in Hawaii and California means that there is a strong legal ground for the validity of same sex marriages. This legal ground according to the constitution of the state of Hawaii, is anchored on the fundamental rights of every individual which is not only recognized and guaranteed by the government, but the state are constitutionally bound to uphold and protect it.

Citing the arguments raised by Larry Kramer, Yuval Merin (2002) stated,“Larry Kramer argues that the public policy exception is unconstitutional and that states should uphold the validity of same-sex marriages, concluding that if same-sex marriages is allowed in one state, it should be generally recognized by other states unless other  choice-of-state law rules dictate other wise” (Merin, Y. 2002, p. 232).Merin further cited some arguments emphasizing that while other states are lawfully free to refuse to recognize such marriages, it should not be a sufficient ground “to bind the world” (p. 232).  Certainly, anti-same-sex-marriage laws will have damaging implications regarding the equal rights of lesbians and gay men in some areas of life. Merin cited that Lambda Legal Defense and Education Fund“forewarns that such laws could be regarded as a public policy license to discriminate against lesbian and gay couples and could be used to prohibit domestic partnership registries and plans and to deny adoptions and custody to gay men and lesbians, as well as to allow sexual orientation discrimination” (p. 231).

There is no doubt that banning same sex-marriages is unconstitutional not only because it lay down the principle of state discrimination against the third sex, but it will also discredit the provision of article 4 section 1of the US constitution which states that “Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial proceeding of every other State” (Merin, p. 231). Banning same sex-marriages that are allowed and practiced in other states means that they would be oblige to comply and therefore the state complicate their own situation. The clause “Full Faith and Credit to the public Acts will lose its meaning among these States.Status of Recognition of same sex-marriages in the USAIndeed, same sex-marriages are legally recognized in many states in the United States. The passing of Congress of the so-called Defense of marriage Act more popularly known as DOMA and its signing into law by President Bill Clinton in 1996 was clear indication of legal recognition of same sex-marriages.

According to Mads Tonnesson Andenas, and Robert Wintemute (2001), the DOMA was enacted as a statute “intended to relieve states of any obligation under the federal constitution to afford legal recognition to lawful same sex-marriages and to exclude any such marriages from being recognized for the purpose of any federal law or policy” (Andenas & Wintemute, p. 151). While the DOMA was enacted to safe guard the religious nature of the family, it reflects a growing public acceptance of same sex-marriages. Andenas and Tonnesson pointed out that pertaining to legislation as a vehicle to recognition of same sex-marriages; a new devise has been adopted by several cities and municipalities on the West Coast of the United States. Andenas and Tonnesson stated: “Municipal ordinances making extension of employee benefits to same-sex partners of employees a prerequisite to eligibility to contract with the municipality…” (p.

151). With the San Francisco as the prime mover of this initiative, this system was also adopted by Seattle and Los Angeles.The litigation for recognition of same-sex partnerships is a legitimate effort on the part of the gay people in view of their constitutional rights. While public recognition of same-sex partnership is still subject of an on going debate, there is a strong point on the arguments presented by those against the banning of same sex-marriages. According to some conservative gay rights defenders such as Sullivan (1995, 1997), “the recognition of same sex marriages is a fundamental requirement of equal status” (Weeks, J. Heaphy, B. & Donovan, C.

2001, p. 127). There is basic truth in this argument because it is grounded on the fundamental rights of the individual regardless of sex, color, religion and social status. Weeks and Donovan cited Eskridge (1997) which argued that “stable partnerships are necessary for a stable sense of self, and in a culture which emphasizes status, to deny the recognition of the formal status of marriage to lesbian and gay couples is to deny them full citizenship” (Weeks, Heaphy, & Donovan, p. 127).Court Rulings on the Constitutionality of same sex marriagesSame sex relationships have long existed in the United States prior to formal recognition from the point of the law. But in 2003, it experience important legal changes following Vermont’s and California’s “unprecedented creation of civil unions and domestic partnerships to impart marriage-like and responsibilities in same sex relationships” (Steiner, B.

F. & Nielsen, L. B. 2006, p. 77).

According to Kimberly D. Rich, in 2003 the court put an end to the last remnant of criminal law prohibiting same-sex relationships citing the court ruling in Lawrence v. Texas that “such sodomy statutes constituted discrimination against homosexuals” (Rich as cited  in Streiner and Nielsen’s, p. 77). Rich pointed out that similar ruling was executed by the Massachusetts Supreme Court five months after the California ruling was made public. In the case Goodridge v. Department of Public Health the court ruled that “the civil institution of marriage must be made equally available to homosexual and heterosexual couples” (Rich, p.

77). These legal recognition of same sex marriages according to Rich were “long overdue affirmations of families and relationships” (p. 77) that were culturally and personally experienced as real during this decade.

The argument on same sex relationship continues to draw so much attention not only from the pro and against but also among different courts, and the intellectual world of various scholars. Legal and intellectual debate not only hinges on nature of relationships but also on the meaning of the relationship in view of legal, social, cultural, and personal understandings of identity, meaning and change. Rich cited that after decades of debate regarding this issue, pointed out that a growing number of scholars have embraced an approach that views social and legal meaning as “mutually constitutive, and privileges ordinary peoples’ experiences of law in their daily lives” (p. 77).Another issue that has triggered legal and intellectual debate is the custody and adoption issues which has been going on since the early 1970’s. According to Rich, lesbian mothers were denied of custody of their own children from former heterosexual marriages.

But even these issues came to an end through similar statutes passed in California and Vermont, in 2002 and 2003.While the there were still some issues that stole public attention for a short while during the period of debate, it was the dispute on gay rights that came to occupy the public attention. The legal battles center on the issue of the constitutionality of banning same sex marriages which was brought to the legal arena by no less than President George W. Bush in September 2004. The Senate debate ended up in the defeat of the proposed amendment banning the same sex marriages. Despite of this defeat in the Senate, many states opted to ratify constitutional amendments banning same sex marriages but other state totally remove any trace of statute that ban same sex marriages, thus, creating a social conflict about the state validation of same sex marriages. In the meantime, the US Supreme Court has not made any ruling yet about the issue on the national level.

Today, gay rights advocates are hoping to see a federal constitutional amendment that will guarantee gay and lesbian rights to marry.The General perception on same sex marriagesIn the final analysis, there basically five types of groups of people involved in the entire debate on the issue of same sex marriages. The first group is the religious people who held on to the traditional concept of marriage that is, between man and woman, and are bent on protecting their traditional notion for marriage and family. They hold that family consists of a husband, wife, and children.

The second group is those belonging to the third sex who is the complainant. They argued that they to have the right to be married to the same sex as long as they love each other just like ordinary man and woman. They are challenging the constitutionality of banning same sex marriages. The third group is those in the legal system who are not only a mediator but also the judges in the debate. They are those in the court system and .in the legislative body.

  The fourth group is the general public who are merely audience and spectator. Most of these groups are the so called silent majority, and others are supporters of both sides. The last group who is more influential among all the groups is the intellectuals who served as critics and commentator on the decision. They also participate in the debate through their critics and comment on the issues.Given this analysis, the government who ensures that the rights of every individual are not only respected but also uphold and promote it, does not much interfere in the sense that its concern is the general welfare of the people.

Thus, to resolve the issue in the debate, the court must consider who has the greater rights between the contending parties. If the court would base its judgment on the number of people who are against banning same sex marriages, certainly, it would favor the arguments of same sex marriage advocate as the number of people who sympathized with them will outnumber those who would side with church. This assumption is based on a public reaction cited by Steiner and Nielsen regarding the rights of lesbian mother to take care of their own children. Steiner and Nielsen cited some reactions of mothers from Ohio and mothers from the Midwest who were against the ban (p. 81). It has been cited in this paper that included in the ban of same sex marriages are rights of lesbians to care of their own children.Evidently, in the context of the last group who were the intellectuals and politicians, those who went to the side of the same sex marriage advocates outnumbered their peers as Steiner and Nielsen puts it,“…in the wake of the Massachusetts Supreme Judicial Court’s legalization of same sex marriage and San Francisco’s decision to issue same sex marriage licenses- politicians, activist, and commentators have been put in the position of having to declare themselves for and against, while gay rights organization have publicly praised the long overdue formal legal recognition of their already extant families and relationship” (79)The issue that is being raised in this particular discussion is that while the voices of those belonging to the religious groups seeking the banning of same sex marriage were loud and strong, it does not mean they are the majority or that they have a great number of people on their side. Rather they are merely the contender.

The court rulings of some states stated in this paper that upholds  the rights of gay and lesbians to be married reveals that the court recognizes a substantial number of people who will be deprived of their rights if the court will rule against them. While their judgment was based on the merit of the arguments which the last group had substantially contributed, given the sensitivity of the issue, it would be quite reasonable to assume that if the case involved only a handful people the court would have ruled in favor of the religious groups seeking to the exclusion of same sex marriages from any legal recognition.Why it is unconstitutional to ban gay marriagesThe roles that the last group of people involved in the debate had taken were not only to take their side on the issue and defend it, but most importantly to shed light on these issues. Evan Gertsmann’s (2004) critical scrutiny of the arguments of those against same sex marriage reveals a  strong and enlightening argument. Gertsman explained that the argument seeking the banning of same sex marriage is anchored on “the right to marry” (Gertsman, p.

85).  According to Gertsman, the right to marry “is a predicate of the right to procreate and raise children in a traditional family setting” (p. 85) while the ability to have children is at the core of marriage, and marriage is by definition, a dual gender. In other words, the main arguments lie on the concept of having children and to raise them in the traditional family setting. But upon critical analysis, it is clear that it is unconstitutional to ban gay marriages based on the court’s view about marriage and Children.

The court as Girtsman cited, “makes it crystal that the right to marry is not merely a precursor of the right to have children or raise them in a traditional setting” (p. 91). The lengthy and very detailed argument on the relations between marriage and children ended up with the conclusion that having and rearing children is not a precursor to marriage. Gertsman stated “The idea that marriage requires reproductive ability has no support in contemporary law either” (p. 93). Gertsman cited that as a whole; nothing in the law signifies that the ability to have children is a vital component of marriage. Based on this argument, banning same sex marriage would be unconstitutional as there are no legal points that would form the basis of its constitutionality.

The reason by which religious groups led by the fundamentalist Christians, is seeking ban on same sex marriages according to Tricia Andryszewski is that they “believe that homosexuality is sin” (Andryszewski 2008, 28). Andryszewski cited that in the Christian Bible particularly in the book of Genesis, God destroy the entire city of Sodom because every man in was a homosexual. In view of this, Andryszewski stated that “conservative American Christians have primarily interpreted this story as God punishing the Sodomites for homosexuality” (p. 29). The argument therefore of those against same sex marriages are grounded on the biblical claim which implies spiritual emphasis. This notion cannot be accepted as the basis of states action. The state should not yield to the religious pressures in view of the separation of powers between the church and state. The state should therefore decide on the issue on the merit of arguments in view of the greater rights.

While the church teaching on homosexuality is good, it should not however be the guiding principle of the state for its action..           However, it should be mention that not all religious groups are against same sex marriages. Andryszewski noted that many religious leaders who “oppose religious marriage ceremonies for same sex couples do support same sex civil marriage or civil union” (p. 33).

Seeking to ban same sex marriage based on the church doctrine, would undermine the principle of separation, and that it would be grossly unfair for those whose rights can no longer be free to use. The Roman Catholic Church according to Andryszeski, has held that homosexual orientation is not sinful, However, the behavior is, thus they opposes any legalization of same sex marriages. On the Protestant denomination, the United Methodist, the Presbyterians, and the Southern Baptist strongly opposed same sex legalization issue (Andryszewski, p. 34). In other words, the strongest opposition to same sex marriage legalization is the religious groups notably the Protestant denominations such as United Methodist, Presbyterian, and the Southern Baptist, and the Roman Catholic Church.  In this case, the obviously, the church is interfering in the affairs of the state despite of the separation of powers. What is important here is that by interfering in the way the state handles it duties, the church has lost its respect to the state. The state therefore should stand its ground and do its job of recognizing, respecting, upholding and promoting the rights of its citizens.

In this case, the right of gays to same sex relationship should not be denied of them on the basis of the opposition of the church.ConclusionThe issue at hand is a sensitive one as it is not only deals with the individual’s right but the concerned individual’s life. Most of us enjoy the benefits of having our rights not only respected but also protected and guaranteed. However, people whose sexual preference did not conform to the traditional notion of the family are fighting against a set of norms established by the church as the basis of human relationship, to gain theirs.

This is unfair. The state and the court system should not allow themselves to be instruments in order to carry out this long held tradition which implies the church interference with the way the state is doing its job. The state should act on the issue base on the merit of the case and free from the influence of the church.Legalization of same sex marriage is a justifiable, ethical, and humane act as this would give gays and lesbians an opportunity to live together with their partner with out the stain of immoral perception of the public.

It is long over due and it is high time that they be granted it as under the constitution, they have a right for it.


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