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Exploring The Legality Of Same Sex Marriage

There has been a lot of discussion lately about whether or not to allow gay marriage in the United States. In response to this debate, many states have passed constitutional amendments that redefine marriage as a union between a man and a woman, thereby excluding homosexuals from the right to marry. There are many arguments as to why people who are homosexual should not be allowed to marry and there are many arguments as to why they should. The problem that I have seen is that a lot, if not all, of these arguments are related to religion and morality. I have not seen many that address the actual legality of the issue. My question is this: why is there a debate about whether or not to allow homosexuals to marry? My goal is to explore why, given that the Fourteenth Amendment of the Constitution of The United States Of America says all people should be treated equal, there is even a question about the legality of gay marriage.

The most widely publicized case as of late is Proposition 8 in California. Proposition 8 came on the cusp of San Francisco’s mayor granting marriage licenses to gay couples. Many people were upset by this. In response to San Francisco allowing gay marriage, some people drafted a measure that would amend the California Constitution to only allow marriage between one man and one woman. Proposition 8 was not lengthy like a lot of measures are. It was short and to the point of the people who wrote it. In California, anyone can put anything on the ballot. There are not many restrictions. Simply gain enough signatures and you can place something on the ballot for the people to vote on.

Proposition 8 was placed on the ballot by voters and stated simply:
“Section I. Title
This measure shall be known and may be cited as the “California Marriage
Protection Act.”
Section 2. Article I. Section 7.5 is added to the California Constitution, to read:
Sec. 7.5. Only marriage between a man and a woman is valid or recognized in California.”

I was living in California at the time that this proposition was on the ballot. The act was widely publicized as an educational protection1. Voters were told that if this proposition was not passed, schools would be forced to teach about and even promote being gay. Through my own research at the time, I remember finding that the idea that this proposition affected the educational system or curriculum stemmed from a previous proposition 8 that was about the educational system. I have been unable to duplicate this research at this time, but it seems, to me, that these two propositions were confused and intertwined in the 2008 elections. It is unclear whether or not this confusion was intentional, but Proposition 8 did pass.

Proposition 8 was immediately challenged by same sex couples who had been married during the time when the mayor of San Francisco had allowed same sex marriage. In Strauss v. Horton, the first few cases were brought to the Supreme Court in California. The California Supreme Court upheld Prop 8, but allowed the previously granted marriages to stand based on what is called a grandfather clause(Strauss v. Horton). A grandfather clause says that actions before the ruling are still valid, and that the ruling will hold from the time of the decision forward.

California’s Supreme Court Ruling on Proposition 8 was challenged in Perry v Schwarzenegger. In August of 2010, Judge Vaughn Walker overturned Proposition 8 on the grounds that it was unconstitutional. In his ruling Judge Vaughn Walker condemned the law stating, “Race restrictions on marital partners were once common in most states but are now seen as archaic, shameful or even bizarre” (Perry v Schwarzenegger, pg 114). In saying this, he began the legal thought needed to, hopefully, eventually claim that homosexuals are part of a group that deserves special protections because of past grievances committed against them. George Chauncy already agrees with this notion in his book, Why Marriage?: The History Shaping Today’s Debate Over Gay Equality.

Shortly after this ruling, Judge Vaughn Walker retired from the bench. When he retired, Judge Vaughn Walker came out to the nation and the world as a gay man. Of course, Judge Vaughn Walker’s decision was appealed. Proponents of Proposition 8 argued that since Judge Vaughn Walker is gay, he should have recused himself from the case. They pushed the notion that Judge Vaughn Walker had a vested interest in the ruling and, therefore, could not have made his decision from an unbiased position.

The appeal of Judge Vaughn Walker’s decision is called Perry v. Brown because the governor of California changed. In his writing, Judge Reinhardt stated that there was no reason for the previous judge to recuse himself. The main issue in the Proposition 8 appeal, though, was whether or not California had a right to place this measure on the ballot in the first place. The question was regarding the legality of denying gays the right to marry their partners.

Judge Reinhardt, for the United States 9th Circuit Court of Appeals, in his writing of the majority opinion regarding the legality of Proposition 8, wrote, “We consider whether that amendment violates the Fourteenth Amendment to the United States Constitution. We conclude that it does” (Perry v. Brown, pg 4). Judge Reinhardt found that, at the very base of the issue, the practice of allowing the right to marry only to strait couples, was unconstitutional. The right to happiness is guaranteed in the Constitution. Denying certain people the right to marry based on their sexual orientation is unconstitutional because doing so denies people the right to pursue their own happiness.

Section one of the Fourteenth Amendment of the United States Constitution states very clearly,
“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens
of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States”(Amendment 14, Section 1, US Constitution). All people who live in this country legally are afforded the rights of citizens are should be treated as such. No state is allowed to make any laws that impede upon the rights guaranteed by the Constitution. This means that no state is allowed to make any law that counteracts any of the freedoms given by the Constitution of The United States of America.

Now, the Constitution does not specifically address the issue of gay marriage, but it does say, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people”(Amendment 10, US Constitution). This means that any powers not specifically laid out to the central government, or reserved by the states, are granted to the people, including the right to marry. When you combine the text from the Fourteenth Amendment with the text from the Tenth Amendment you can clearly see that, according to the Constitution, there are no legal grounds to deny any right to any group of people.

Judge Reinhardt, in the same decision for the 9th Circuit Court of Appeals, wrote:
Proposition 8 serves no purpose, and has no effect, other than to lessen
the status and human dignity of gays and lesbians in California, and to
officially reclassify their relationships and families as inferior to those of
opposite-sex couples. The Constitution simply does not allow for ‘laws of
this sort’ Romer v Evans, 517 U.S. 620, 633 (1996).

Judge Reinhardt basically said that there is no reason for Proposition 8 other than to discriminate against gays and lesbians. The Constitution of The United States of America does not condone or allow laws like this to be made in this country, even with the consent of the people. This case is, of course, being brought to the Supreme Court for a final appeal.

More recently, or rather concurrently, there is the case of Golinski v. Office of Personnel Management. This case was filed after Karen Golinski tried to apply for medical benefits for her wife. When her employer, the 9th Circuit Court of Appeals in California, denied her wife benefits Ms. Golinski filed a complaint against them. The employer cited the Defense Of Marriage Act as the justification for their decision. When their internal judge ruled that the employer could not deny benefits in this case, they outright refused to comply with the ruling. This blatant disrespect for their own in-house court’s decision, and her rights as a US citizen, prompted Ms. Golinski to take the issue further.

On February 2, 2012, Judge Jeffery White found that the Defense of Marriage Act violated Ms. Golinski’s Fifth Amendment right to equal protection under the law. In his decision, he wrote:
The Court finds that neither Congress’ claimed legislative justifications nor any of
the proposed reasons proffered by BLAG constitute bases rationally related to any
of the alleged governmental interests. Further, after concluding that neither the law
nor the record can sustain any of the interests suggested, the Court, having tried on
its own, cannot conceive of any additional interests that DOMA might further.

Judge Jeffery White found, in his court’s review of the case and the justification(DOMA), there was not one piece of evidence that should allow Ms. Golinski’s employer to deny her wife benefits. Furthermore, Judge White stated that DOMA itself has no justification for being law as it violates the Constitution, the supreme law of the land. Judge White’s ruling, in my opinion, lays the groundwork and the constitutional framework to overturn DOMA at the national level.

I set out on this journey to find out why there is a question about the legality of gay marriage. What I have found is that there is none. All the evidence that I have been able to come up with refers to DOMA for justification, however DOMA is in danger of being overturned because it violates the United States Constitution. All the justification I have found for DOMA is grounded in the purposeful spread of fear and ignorance and the infiltration of religion into our governmental decisions. The justification for keeping gays and lesbians out of the institution of marriage seems to be purely religious. This country does not function to further religious enterprise. This country has a wall of separation between religion and government. Though we have allowed religion to play a vast part in government, at times, we have typically rectified those errors. I have faith that we will do so once again.

2008, California Marriage Protection Act, Section 2 Article 1
2008. What Is Prop 8. “” 3/28/2012
2011. SF Weekly. “” 3/28/2012
2012. Wikipedia. “” 3/28/2012
Chauncy, George. 2005. Why Marriage?: The History Shaping Today’s Debate Over Gay Equality, United States: Basic Books
The Constitution of The United States of America, Amendments to the Constitution, Article XIV
The Constitution of The United States of America, Amendments to the Constitution, Article X
Judge Vaughn Walker, Perry v Schwarzenegger, 2010
Strauss v. Horton, 2008
Sullivan, Andrew. 2004. Same Sex Marriage: Pro and Con, New York: Vintage Books
U.S. Congress, 1996, Defense of Marriage Act, 104th Congress, 2d session, H.R. 3396
United States Court of Appeals For The Ninth circuit, Perry v. Brown decision, 2012

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