Of Love and Law: The Case for Marriage Equality | The Washington Center

Of Love and Law: The Case for Marriage Equality

It's time to get a little serious, folks. As supporters of marriage equality celebrate the upcoming unions in New York and passage of civil union legislation in Rhode Island and Hawaii, they must not forget that much work still needs to be done.

This past Wednesday, I attended a Senate Judiciary Committee hearing involving two texts. On one hand there is the Defense of Marriage Act (DOMA), which defines marriage as a union between a man and a woman thereby prohibiting the federal government from recognizing same-sex marriages. Consequently, the Respect for Marriage Act (RMA), if passed, would repeal DOMA and ensure that homosexual married couples in States that allow or support marriage equality/civil unions will be recognized by the federal government (although note that there is no mandate that all the States must adopt same-sex marriage laws). And while I appreciate the efforts of committee chair Senator Leahy and the others for creating a full-fledged hearing on the issue, at the end of the day arguments for and against repealing DOMA rested on religious and emotional appeals. While groups such as Focus on the Family emphasized the "sacred" nature of marriage and the need to protect children (despite the fact that Focus on the Family's representative admitted that some children in loving families are disadvantaged by DOMA), homosexual individuals who lost benefits such as healthcare and accumulated Social Security/pensions of their partner when she or he died granted a more human, tragic face to the issue. However, as an aspiring lawyer, I feel these testimonies did not answer a crucial question: is the denial of marriage equality constitutional? Here I will seek to answer that question.

Section 1 of the 14th Amendment to the United States Constitution states that:

...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.

Marriage isn’t just some nice title. There are a multitude of state/federal benefits that come along with being part of a married couple. In many States gay couples aren’t able to access these marriage benefits. To deny one class of loving, committed partners government benefits while another group is given complete access to is a clear violation of Section 1. For example, there have been cases where a homosexual person couldn’t cover his or her partner under their health insurance because the benefits recognized only heterosexual marriages (although some States have given some benefits to civil unions). And in the case of a medical emergency wherein a partner is incapacitated, the other partner may not be given legal standing to speak on his/her partner’s medical wishes. Furthermore, through legislation such as DOMA married homosexual spouses cannot jointly file tax returns or receive pensions and Social Security benefits of their partner if he or she dies. These issues are not made a burden on heterosexual couples, and because these rights and benefits are denied on the grounds of legislation and not judicial proceedings, are invalid under the Constitution. Shrewd legal folks will be quick to point out that the Fourteenth Amendment applies only to the States leaving federal statutes such as DOMA free from such scrutiny. However, this issue is swiftly dealt with when one factors in the equal protection component of the Fifth Amendment Due Process clause (see Bollling v. Sharpe, 1954 for an example).

One argument against marriage equality is that it should be prohibited because it goes against a majority of the public’s moral and religious beliefs. It must be noted, however, that these same convictions were used to discriminate against interracial marriage nearly sixty years ago. The sad fact is
until 1967 some States still banned and even criminalized interracial marriage, and it took the Supreme Court of the United States to get rid of such laws. The Court has since held that marriage is “one of basic civil rights of man” (Loving v. Virginia, 1967). As seen in history, prevailing attitudes on marriages have changed and hopefully will change in the future. The world has changed since DOMA was signed into law, with a majority of Americans supporting marriage equality. In light of this fact the recent push to pass RMA gives me great hope that Congress (at least some of its members) understand the will of the people.

Gay marriage is attacked on religious grounds mainly through references to religious scripture (i.e. the Bible). However, such an argument has little legal standing. Article VI, Clause 2 of the United States Constitution states that “This Constitution… shall be the supreme law of the land.” In our secular government, the Constitution and all federal and State laws make up the basis for rule, not any and all religious scripture. Furthermore, there are many instances where specified rules and modes of conduct as seen in religious text are not adhered to; the selection of specific verses in denouncing same-sex marriage can be seen merely as cherry-picking the text to justify one’s own beliefs. If one wishes to see America as a "Christian nation"  or how well religiously-driven government runs, please go to Iran and tell me how well things are going there.

Throughout America’s history, there have been dozens of federal laws and even proposed constitutional amendments to define marriage. Aside from the possible constitutional violations that could come to pass from such legislative moves, an issue of greater magnitude must be addressed: is it permissible to allow government to define something as fundamental as marriage and relationships? If the government can define marriage, what other aspects of one’s personal life can come under regulation? Furthermore, why are some groups who are typically against government intervention (in welfare, education, etc.) and in opposition to big government actively calling for the government to intrude on an issue that is so personal to one’s identity-the love life of other people? Such an intrusion should be ringing alarms throughout the entire country. 

If this country wishes to uphold its respect for personal liberty and freedom, it simply cannot continue to discriminate one group of citizens in a loving, committed relationship. Americans as a whole have placed marriage on a pedestal and seek to protect the institution. However, if we want to see how strongly marriage is held in high regard, we need to look no further than the multitude of homosexual couples fighting for their right to marry. In a time filled with politicians having affairs, a high divorce rate, drive-thru wedding chapels, and even divorce parties, the tireless pursuit of homosexual couples for something that many of us take for granted -the ability to marry the person they love with all the legal benefits it grants- is something that we should be truly inspired by.

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