Same Sex Marriage
Marriage is often considered a sacred rite that only a few could experience in their lifetimes. Some would find themselves in a bountiful and happy marriage while a few would find themselves in short and sometimes painful marriages. Nonetheless, the debate has still fostered new arguments considering the entrance of LGBT communities over their rights to a recognized marriage. However, given the current situation of same-sex marriages in the United States, it is visible that it is unconstitutional to bind something such as marriages to people just because of their gender preferences for it is a direct violation to one’s right to make choices and the right to have equal recognition from the law. For this paper’s discussion, the research strategy will concentrate in discussing the following elements: the nature of marriage and same-sex marriage in the United States, the contents of the DOMA of 1996, states opposing and supporting same-sex marriages, the unconstitutionality of the DOMA, and finally the LGBT groups and individuals which may help in the federalization of same-sex marriages.
Yamin (2012) noted that marriage pertains to the union between a man and a woman as they bind themselves through the ceremony as husband and wife. Marriage is recognized as such through law and under the eyes of the Church, depending on the ceremony done by the couple. However, with the debates from the LGBT communities over their rights, marriage had also been tackled by these groups. In this end, they call for the approval of the same sex marriages as they are entitled to these rights under the law. The debate itself had varied across the globe, especially in the case of the United States. Under the US Constitution, there is no definite translation or definition on the idea on marriage. However, like other services and rights accessible to citizens, states are given the power to determine the procedures, requirements and position of the state when it comes to marriages. While these states still offer the traditional ceremony and recognition of unions between man and woman, there now growing calls to permit same-sex marriages that are recognized by law. In this end, it fosters the debate as to allowing same-sex marriages in the country. The United States History had defined marriage as the upholder of sustaining society, the “foundation of society” or the “foundation of civilization” which must not be influenced in any way.
After the Civil War, marriage was considered a means to usher in national stability and return ex-slaves into the society. Throughout the years, political and social norms slowly developed in the country. This then required the influence of American values and norms to be seen over fundamental rights such as marriage, bringing in new marital standardization laws to enable states to issue marriage licenses. In the 1960s, radicals called for the revocation of policies that women are to marry as their obligations since many had to enter fixed marriages to fulfill this obligation. It could also be noted throughout US history that marriage and the country’s federalism are entwined as there have been tensions between state and federal power over the politics of marriages. Nonetheless, the marriage law of the country had remained neither uniform nor explicit as states are permitted to decide their own marriage policies. The federal government itself is also limited in controlling the standards set to state policies, most specifically marriage . Herek (2006) noted that, since the 1970s, many gay and lesbian communities have recognized the importance of becoming recognized as couples by the law. Throughout this period and up to the 1990s, they have noted that their unions follows the norms set by civil marriages, noting that these unions be recognized and be allotted the same social and legal benefits. Of course, several conservatives have called for the restoration of marriage as an institution for defining acceptable sexuality and gender roles.
Given the varying positions of the state governments and opposing parties on same-sex marriages, the federal government had also enforced its own position on same-sex marriages by passing the Defense of Marriage Act of 1996. Herek (2006) noted that DOMA of 1996 had been enacted by the US Congress in lieu of the Hawaiian Supreme Court’s decision to compel its states to enable marriage licenses to be available to same-sex couples in light of the Baehr v Lewin case of 1993, which had decided that same-sex couples would be granted in the Aloha state. The DOMA simply states that a marriage is a union between a man and a woman; asserting the fact that it is unconstitutional for same-sex couples to be considered legal under the eyes of the government . Newton (2010) had also noted that this Act also stresses that states are not forced to consider or recognize state rulings on same-sex marriages from other states. Some states have even passed their own forms of the DOMA, enabling some states to avoid giving full marriage legalities to couples. The DOMA also denotes that aside from their unions invalid in the eyes of the federal government; same-sex couples are also forbidden to gain access to their spouses’ Social Security income, joint income tax filing, pension, retirement benefit and 1,000 other benefits which are enjoyed fully by regular couples .
According to the recent CNN study (2012), there at least 39 states, which currently opposes same-sex marriages in their regions. Each of these states could be grouped as to how they classify marriage and the same-sex marriage issue. There are at least 20 states that have noted in their state constitution that they would not allow same-sex marriages, civil unions, or domestic partnerships to be recognized by their law. These states are as follows: Nebraska (2000); Arkansas, Georgia, Kentucky, Louisiana, Michigan, North Dakota, Ohio, Oklahoma, and Utah (2004); Kansas and Texas (2005); Alabama, Idaho, South Carolina, South Dakota, Virginia and Wisconsin (2006); Florida (2008), and North Carolina (2012). There are at least 30 states, which include the list above, which notes that, under their constitutions, civil “marriages” are the union of one man and one woman and to be recognized by law. These states are as follows: Alaska (1998); Nevada (2002); Mississippi, Missouri, Montana and Oregon (2004); Colorado and Tennessee (2006); and finally Arizona and California (2008). In addition to this, 31 states had also amended their constitutions in terms of preventing the legalization of the same sex marriages. Including the list above, Hawaii had also amended its constitution to reserve the definition of marriage and let the legislature decide on this in 1998 .
On the other hand, there are at least 10 states, which have agreed upon to recognize and permit same-sex marriages. Williams (2012) have noted that give of these states have agreed to allow same-sex marriages to marry in their jurisdiction and recognize these unions. The first state to have accepted same-sex marriages and permit them is Massachusetts in 2003. The Massachusetts Supreme Judicial Court had ruled under the case Goodridge v. Mass Department of Public Health 440, Mass. 309 that a ban on same-sex marriages would violate the state’s constitution. The case itself was filed by same-sex couples who have been denied marriage licenses in the duration of March and April 2001. Following the decision, the Supreme Court issued its opinion in November 18, 2003 that banning same-sex marriage would infringe personal freedoms, which is against the constitution, especially as it would also infringe an individual’s autonomy and equality under the law. In May 17, 2004, the state had issued marriage licenses for same-sex marriages. Connecticut’s Supreme Court had also filed a similar ruling on October 10, 2008 that they would permit same-sex marriages to be administered in the country, following the denial of the state government to give the eight respondents marriage licenses in 2004. The Connecticut case was also noted to be the first of its kind to showcase that civil partnerships are not similar to marriages in the extent that it does not give the same legal support as that from real marriages.
In the case of Iowa, a similar court ruling was also noted in April 3, 2009 after the Varnum v. Brien case, which noted that same-sex couples must not be denied of equal access to marriage as it would not seriously affect any government interest. Vermont, in its end, was the first of the group to have legalized equal access to civil marriages for LGBT couples by passing the “Act to Protect Religious Freedom and Recognize Equality in Civil Marriage, S.155” in April 7, 2009. The state had already recognized civil unions since July 1st, 2000; making it the first to recognize same-sex relationships in the country. After recognizing these relationships, the Vermont Supreme Court had ruled in the case Baker v. Vermont that same-sex couples are entitled to their rights under the constitution to get access to marriage rights. The Act was passed and put into effect in September 1, 2009. New Hampshire had also passed its own bill, HB 0436 in June 3, 2009 which enables equal access to same-sex couples and at the same time, draws the line as to how religious freedom notes how solemn marriage should be. The law came into effect on January 1, 2010. In the case of California, the state itself had its Civil Code based on gender neutral terms, which had been modified to note same-sex marriages were prohibited from being recognized or done in California. This Code was supported by Proposition 22 in 2000, which included a revision on Section 208 of the Family Code or the “California’s Defense of Marriage Act” that states only marriages between a man and a woman would be recognized by the states. However, in February 2004, San Francisco had started issuing same-sex marriage licenses as they believe Proposition 22 was unconstitutional. The Supreme Court had also called for revocation of marriage licenses until they deemed the issue resolved. On May 17, 2008, the Supreme Court of California ruled that the provision violates the state constitution. However, another Proposition, Proposition 8 was launched to define marriage similar to Proposition 22. It was enacted on November 4, 2008, blocking again same-sex marriages. However, many advocates had fought against Proposition 8 and the Supreme Court itself has noted that the Proposition is not powerful enough to invalidate the Supreme Court’s decision on Proposition 22. As of the present time, the Proposition 8 court case or Perry v. Schwarzenegger case is still on trial. Columbia on its end had also recognized same sex marriages, as well as in New York. New York’s Senate had issued the Marriage Equality Act on June 24, 2011 to enable same-sex marriages. Currently, Washington and Maryland had recently seen the signing of marriage equality legislation in their areas and is now waiting for the final decision from the referendums .
However, according to Smith (2005), the DOMA is unconstitutional due to three challenges, which question its legality and content. The first challenge is the unconstitutional exercises of the US legislative to undermine marriage under the Full Faith and Credit Clause of the US Constitution or Article IV. This article notes that each State is given rights to public acts and proceedings from other states and the Congress would accept these rulings. Arguments also point out that even though the US Federal government could pass laws to overrule state rulings and laws, it is still not permitted to allow passage of laws that deny a state Full Faith and Credit. The next challenge presented against the DOMA is the Clause of Equal Protection, which grounds the DOMA on the position of enabling states to support their position on how their public policy would support their side of the issue. Finally, the DOMA also challenges the Right to Substantive Due Process or the Right to Privacy of individuals as it questions Courts if they would consider same-sex marriages a crime . There are also groups and individuals who have sued due to the DOMA’s policy on how the federal government would see same-sex marriages and their privileges. As noted by Ariosto (2012), the 2nd US Circuit Court of Appeals noted on October 18, 2012 for the case, Windsor v. United States, that the DOMA of 1996’s Section 3, or “The Definition of Marriage” clause, had violated the Constitution’s “Equal Protection Clause” ruling in favor for widow Edith Windsor (83) who sued the federal government for charging $363,000 worth of estate tax after denying her right to spousal deduction. It was also noted by the Court that the country’s LGBT communities have suffered long enough with discrimination, similar to how women have been discriminated in the past. Windsor herself noted that with her case against the government, she hoped that one day homosexual couples would be viewed same as that of heterosexual couples in the future .
In the case of marriage, while it could be argued that the sanctity and the traditional perception of marriage is now distorted, it is visible that banning or restricting same-sex marriages would have been a violation under the country's Constitution. Although they could be considered members of the third sex, they too are protected by the Constitution and must be given their rights to critical services such as marriage. It could also be noted that the DOMA presents a beginning for the federal government to federalize state standards to form a uniform position in each of its states. While the DOMA is questionable in terms of its content and perceived effect, the DOMA could serve as a platform to enable the federal government how to consolidate state standards without issues from any group. Pro-LGBT groups, such as Human Rights Campaign, ACLU, and Gay and Lesbian Advocates and Defenders, and individuals, such as Judge Jeff White, Vito Russo, Jeff Landry, Dan Choi and Christina Finch, could help in drafting federalized standards to open up same-sex marriages acceptable to each opposing party, also enabling them to give opinions for a compromise.
Ariosto, D. (2012, October 19). Federal appeals court strikes down Defense of Marriage Act. Retrieved November 28, 2012, from CNN: http://edition.cnn.com/2012/10/18/justice/new-york-appeals-court-doma/index.html
CNN. (2012, May 31). Fast facts: Same-sex marriage. Retrieved November 28, 2012, from CNN: http://edition.cnn.com/2012/05/31/us/ff-same-sex-marriage/index.html
Herek, G. (2006). Legal Recognition of Same-Sex Relationships in the United States. American Psychologist, 61(6), 607-621.
Newton, D. (2010). Same-Sex Marriage: A Reference Handbook. Santa Barbara: Greenwood Publishing Group.
Smith, A. (2005, December 5). Same-Sex Marriages: Legal Issues. Retrieved November 28, 2012, from CRS Report for Congress: http://fpc.state.gov/documents/organization/57869.pdf
Williams, S. (2012, September 3). Which States Allow Gay Marriage? Retrieved November 28, 2012, from Care2 make a difference: http://www.care2.com/causes/what-states-allow-gay-marriage.html
Yamin, P. (2012). American Marriage: A Political Institution. Philadelphia: University of Pennsylvania Press.