America is at a major crossroads and it is time to decide what we want for our society. Do we want to work together to solve our issues and contribute to the positive growth of our nation or do we want to live in a society of hate where the left and the right are always at odds, where bullying and scapegoating is accepted? Do we want to lead the world in the promotion of human rights and democracy, or do we want to be the bully imposing our will on sovereign nations for our own benefit, even if our actions conflict with our most cherished ideals?

In many ways, our response to gay marriage is a microcosm of these larger questions. Paradoxically, while we condemn nations like China for their human rights violations, we still embrace racist practices here at home and give hate a forum. The Obama administration’s decision to no longer support the Defense of Marriage Act (DOMA) is a step in the right direction to end one of our nation’s last great frontiers of hate and denial of dignity and respect to a significant segment of our nation’s citizens. It is probably the best decision of Obama’s presidency to date, no matter what your politics and views regarding gay marriage are if for no other reason than the decision recognizes the humanity of gay men and women and that they are entitled to equal protection under our laws as citizens of the United States.

At the end of the day, gay marriage is not about you or me or what we think is right and wrong. Gay marriage is about the dignity and respect our fellow Americans deserve as citizens of the United States and equality under the law exactly like the way we have extended dignity and respect, under the law at least, to African Americans, Jewish Americans, Asian Americans, women and the disabled.

In terms of gay marriage issues, the United States is behind other nations of the world. “At a time when the legal recognition of gay and lesbian relationships has been proceeding apace in advanced industrial nations around the world (most notably, in Scandinavia, the Netherlands, Belgium, France, Canada, Germany, and Hungary and partially or locally in Australia, Austria, Brazil, Colombia, the Czech Republic, New Zealand, Portugal, South Africa, Spain, Switzerland, and the United Kingdom), the efforts of U.S. legislators to prohibit legal recognition demand explanation.” (Adam, 2003).

The campaign for a constitutional amendment banning gay marriage in the United States is a young one, but very reflective of modern society in the United States and the culture war that exists between liberal and traditional or conservative values. Over the last two decades, various state and federal court decisions have called attention to the issue of same-sex marriage. These decisions have been reported in the media, but they have had minimal impact on the nation’s public psyche—much like the notice most Californians pay to numerous minor earthquakes that occasionally remind them that the ground they walk on is actually a geologically active planet.

But in late 2003 the Massachusetts Supreme Court–-in a landmark ruling as earth-shattering as an 8.0 magnitude earthquake–-decided that laws prohibiting gay marriage were unconstitutional, thus opening the door for gay men and women to legally marry for the first time in the United States. This ruling drew immediate attacks from those opposed to gay marriage and resulted in an attempt to pass an amendment to the United States Constitution that would restrict marriage in all states to be between a man and a woman. The issue polarized America and became a major campaign issue in the 2004 election cycle. (Brandzel, Amy L. 2005). George W. Bush used the same-sex marriage issue to eke out a narrow re-election to the Presidency over Senator John Kerry from Massachusetts.

With California’s Proposition 8 (see Beyond Proposition 8: The U.S. Gay Marriage Ban Amendment) and the constitutional status of same-sex marriage in California along with the recent repeal of the military’s “Don’t Ask, Don’t Tell” policy, a review of DOMA and First Amendment hate speech protection currently making headlines as they progress through various court systems, issues regarding the status of homosexual men and women as citizens of the United States and the rights and privileges that they are entitled to along with the dignity the rest of the United States citizenry accords them will remain in flux until these issues are ultimately resolved by the United States Supreme Court.

In many ways, the issues that homosexuals and same-sex couples are facing now are the same civil rights issues resolved by the Supreme Court in Brown v. Board of Education. While domestic partnerships and civil unions convey some of the rights to marriage heterosexual couples enjoy, they are widely viewed as a contractual expedience rather than the state-sanctioned institution connoted by the word “marriage.” (Nussbaum, 2009.) This relegates the emotional bond and love that committed same-sex couples share to second-class status in a nation where the traditional family unit of man, woman, and children reigns supreme. (Garlinger, 2004.) In Brown, the Supreme Court ruled that separate, but equal in terms of racial segregation, was unconstitutional under the Fourteenth Amendment’s equal protection clause. A tsunami of civil rights legislation and reform followed the Brown decision. The question now, is, will the Supreme Court ultimately decide that heterosexual marriage and same-sex civil unions are another unconstitutional instance of separateness and inequality. When they do, without a constitutional amendment specifically prohibiting it, same-sex marriage will likely be found constitutional under the Fourteenth Amendment.

The Fourteenth Amendment to the U.S. Constitution is generally the keystone to any civil rights argument. Ratified in 1868 after the Civil War, the Fourteenth Amendment has been used to end segregation and legalize abortion. The relevant portion of the amendment reads: “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.” (O’Connor and Sabato, 2009).

Both the clauses: “equal protection of the laws,” and “nor shall any State deprive any person of life, liberty, or property;” are in play in regards to the issue of same-sex marriage. In Loving v. Virginia the Supreme Court unanimously ruled that the Commonwealth of Virginia’s “Racial Integrity Act,” which required a citizen’s race to be recorded and made it a felony to marry outside one’s race, was unconstitutional on the grounds that it violated the equal protection clause of the Fourteenth Amendment. Writing the opinion for the court, chief Justice Earl Warren wrote that “the Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discrimination. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed on by the State.”

In 1992, voters in Colorado saw what the Loving v. Virginia ruling might imply for same-sex marriages, so they attempted to amend the Colorado Constitution in a way that would ban same-sex marriage if gays and lesbians were indeed categorized as a minority. Amendment 2 stated that:

“Neither the state of Colorado, through any of its branches or departments, or any of its agencies, political subdivisions, municipalities or school districts, shall enact, adopt or enforce any statute, regulation, ordinance or policy whereby homosexual, lesbian or bisexual orientation, conduct, practices or relationships shall constitute or otherwise be the basis of, or entitle any person or class of persons to have or claim any minority status, quota preferences, protected status or claim of discrimination. This Section of the Constitution shall be in all respects self-executing.”

The Amendment was never enacted as a District Court judge approved an injunction against the law, and the Colorado Supreme Court overruled it on the grounds that it violated the Fourteenth Amendment when “strict scrutiny” was applied.

The State of Colorado appealed to the U.S. Supreme Court in Romer v. Evans, and the Court voted 6-3 that the U.S. Constitution’s Fourteenth Amendment supersedes the Colorado Constitution and that Amendment 2 was so broadly hostile to a minority group that there was no compelling state interest to enact it. (Nussbaum, 2009).

Two excerpts from Supreme Court Justice Anthony Kennedy’s opinion in the Romer decision, writing for the majority, are highly relevant:

“It is not within our constitutional tradition to enact laws of this sort. Central both to the idea of the rule of law and to our own Constitution’s guarantee of equal protection is the principle that government and each of its parts remain open on impartial terms to all who seek its assistance. “`Equal protection of the laws is not achieved through indiscriminate imposition of inequalities.'” Sweatt v. Painter, 339 U.S. 629, 635 (1950) (quoting Shelley v. Kraemer, 334 U.S. 1, 22 (1948)). Respect for this principle explains why laws singling out a certain class of citizens for disfavored legal status or general hardships are rare. A law declaring that in general it shall be more difficult for one group of citizens than for all others to seek aid from the government is itself a denial of equal protection of the laws in the most literal sense. “The guaranty of `equal protection of the laws is a pledge of the protection of equal laws.’ ” Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 541 (1942) (quoting Yick Wo v. Hopkins, 118 U.S. 356, 369 (1886)).”

And further:

“A second and related point is that laws of the kind now before us raise the inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected. “[I]f the constitutional conception of `equal protection of the laws’ means anything, it must at the very least mean that a bare . . . desire to harm a politically unpopular group cannot constitute a legitimate governmental interest.” Department of Agriculture v. Moreno, 413 U.S. 528, 534 (1973).

In these two excerpts, Kennedy invokes the Fourteenth Amendment’s equal protection clause specifically. Additionally, while he refers to homosexuals as a “certain class,” and as a “group of citizens,” he stops short in Romer, of labeling homosexuals as a “suspect class.” In Lawrence v. Texas, Justice Sandra Day O’Connor and Kennedy again stop short of labeling homosexuals a “suspect class.” This is significant for what is not said. For at the same time the court recognizes that homosexuals are entitled to equal protection under the law, they choose to be very careful that their opinions will be worded so that they do not specifically construe a right to marriage. For if homosexuals are regarded as a suspect class under the Fourteenth Amendment, then any legal decisions regarding due process of law and equal protection under the law would have to be applied with a “strict scrutiny” standard instead of a “rational scrutiny” standard. It was through the application of “strict scrutiny” that the court unanimously ruled that separate but equal was unconstitutional under the Fourteenth Amendment in Brown. (Brandzel, 2005).

But Lawrence was significant for another reason in that the court ruled that morality cannot override civil liberties. Lori Watson, in her essay “Constituting Politics: Power, Reciprocity, and Identity,” explains that homosexuals, and women, constitute what can be described as “dominated groups” under John Rawls’ theory of social justice and political liberalism. Her essay examines the struggles of dominated groups in forming identities when political structures place these groups at disadvantages. Watson explains that membership in a socially dominated group transforms one’s status as citizen, as evidenced by Justice Scalia’s dissent in Lawrence v. Texas (2003). Watson concludes that for citizens to be free and equal, political structures in place that dominate other groups based on gender, race and sexual orientation need to be dismantled. (Watson, 2007).

In Lawrence the Supreme Court ruled that consensual sex acts within the home are protected by a right to privacy. Many states have laws on the books outlawing sodomy and even fornication outside of marriage under any circumstances. However, in Griswold v. Connecticut and Eisenstadt v. Baird, the Supreme Court ruled that the decision to have children was fundamental and immune to government intrusion. Previously, in Bowers v. Hardwick the Court upheld a Georgia law banning sodomy between two consenting males, citing America’s aversion to homosexuality as a reasonable basis for not extending protection to homosexual sex. In deciding Lawrence however, the Court overruled their previous decision in Bowers and held that the Texas law did not contain a compelling state interest that justified the intrusion into Mr. Lawrence’s home. (Watson, 2007).

Given the above Supreme Court decisions, it would appear that the Supreme Court believes that the definition of marriage as one man married to one woman may be needlessly discriminatory, and if so, a legal argument for same-sex marriage may be emerging; and yet, the court is very carefully navigating the legal minefield so that their decisions cannot be construed to articulate a constitutional right to same-sex marriage:

  • In Loving the Supreme Court ruled that the decision to marry is a fundamental right that resides with the individual, not the state.
  • In Romer, the Supreme Court ruled that the state cannot discriminate against homosexuals.
  • In Lawrence the Supreme Court held that morality could not be the factor that overrides one’s civil liberties.

Loving, Romer, and Lawrence set the stage for Goodridge v. Department of Public Health in which the Massachusetts Supreme Court held that the State does not have a rational basis to deny same-sex couples marriage under the equal protection and due process clauses of the Fourteenth Amendment. The court found that the state may not “deny the protections, benefits and obligations conferred by civil marriage to two individuals of the same sex who wish to marry.” Chief Justice Margaret Marshall, writing for the majority, wrote that the state’s constitution “affirms the dignity and equality of all individuals. It forbids the creation of second-class citizens,” that the state had no “constitutionally adequate reason for denying marriage to same-sex couples,” and “the right to marry is not a privilege conferred by the State, but a fundamental right that is protected against unwarranted State interference.” (Goodridge v. Department of Public Health. 440 Mass. 309. 2003; Watson, 2007; and Nussbaum, 2009).

Patrick Garlinger, in his 2004 essay “In All But Name: Marriage and the Meaning of Homosexuality” explains that the common thread running through all of these court decisions is a concern for basic human dignity:

“The same concern with dignity runs throughout Lawrence, but the majority did not address the key question: is dignity achievable by some sort of legal recognition or only if that recognition is the same for gays and lesbians as for heterosexuals? Goodridge essentially declared the latter when it argued that gays and lesbians had the right to marry. Massachusetts legislators conceded that gay and lesbian relationships would not destroy the fabric of society when they raised the possibility of civil unions instead of marriages. They were willing to offer the rights and benefits that accompany the word, but not the word itself. In so doing, they attempted to maintain control over the symbolic benefit that accompanies marriage—the affirmation that one type of relationship is valued by the state more than other relationships. The Court recognized, and reiterated in their response to the legislature, that the word marriage was being manipulated to confer a symbolic difference between heterosexual and same-sex relationships that genital configuration and procreation alone do not. The selective use of the word seeks to establish a fixed and immutable line between homosexuality and heterosexuality. Furthermore, the word secures the difference between them not as a difference in sexual object choice but as a difference in the inherent value of the relationship. The intangible benefit of the word ‘‘marriage’’ reflects some intangible element of value unique to heterosexuals. It maintains that, whatever heterosexuals do, their relationship is worth something more: it is a status that exceeds its conduct, a sum greater than its parts. The Massachusetts Court thus claimed that any other name would not satisfy the need for dignity since it would create a second-class status. This argument is not to deny that some form of legal recognition is vastly superior to the criminalization of same-sex practices. But in our search for equal treatment by the law, we should not remain blind to the ways in which stigma may attach itself to the very forms of legal recognition designed to further our emancipation .”

Again, the issue turns on equality and equal protection. “What the cases consistently hold is that when the state does offer a status that has both civil benefits and expressive dignity, it must offer it with an even hand. Marriage has, first, a civil rights aspect. Married people get a lot of government benefits that the unmarried usually do not get: favorable treatment in tax, inheritance, and insurance status; immigration rights; rights in adoption and custody; decisional and visitation rights in health care and burial; the spousal privilege exemption when giving testimony in court; and yet others.” (Nussbaum, 2009.)

Another major factor in any ultimate decision by the United States Supreme Court in ruling same-sex marriage constitutional under the Fourteenth Amendment is the role of federalism in practice by the states. Federalism is a double-edged sword. According to Gary Gerstle, professor of American history at Vanderbilt University, “many gay marriage and marijuana legalization advocates now believe that they can accomplish more in state rather than national arenas.” His essay, “Federalism in America: Beyond the Tea Partiers“ suggests that the true power of federalism is in the use of the states as laboratories for public policy to find more nimble solutions to pressing social issues than the United States central government is capable of.

The states are indeed a laboratory for public policy. As of February 2011, there are 41 states with explicit bans on gay marriage, most passed within the past four years. Same-sex marriage is legal in three states as a result of court rulings and in two others—as well as the District of Columbia—through votes in their respective legislatures. As of February 2011, same-sex marriages were granted in Connecticut, Iowa, Massachusetts, New Hampshire, Vermont, and Washington, D.C., along with the Coquille Indian Tribe in Oregon. Same-sex marriage licenses were available in California between June 16, 2008, and November 4, 2008. Civil unions are legally recognized in California, Colorado, Hawaii, Maine, Maryland, Nevada, Oregon, Rhode Island, Wisconsin, Illinois and Washington. Oregon, Washington, Hawaii, the District of Columbia and Maine have domestic partnership laws granting gay couples varying degrees of spousal rights. Arkansas gays and unmarried straight couples are banned from adopting or fostering children.

As each state adopts its own policies and imposes its own bans or grants privileges, different issues will arise that will certainly generate legal action. Perhaps there is no better example of the tangled web quagmire than what has resulted with Proposition 8 in California. Proposition 8 overturned a California Supreme Court ruling that had allowed same-sex marriages in California. As predicted, Proposition 8 was quickly challenged in and overturned in federal court. The case was appealed to the Ninth Circuit Court in Perry v. Schwarzenegger, and is pending. The Circuit Court decision is sure to be appealed to the Supreme Court. When the appeal is made, the Roberts Court, with three female justices, including Ruth Bader Ginsburg, will have an opportunity to make a landmark decision.

It’s possible that marriage will be seen as a fundamental individual right and that the state cannot remove that right without showing a compelling state interest that is not solely based on concepts of morality. Unless opponents of same-sex marriage can provide a new and compelling argument opposing same-sex marriage, they are only left with the popular-majority argument (which was overruled in Loving) and the morality argument (which was overruled in Lawrence). With no legal argument left, the Supreme Court would ultimately conclude that same-sex marriage bans are needlessly discriminatory and unconstitutional.

Such a ruling is well within the realm of possibility. At the end of the last Supreme Court session in 2010, The New York Times reported on an apparently innocent statement from Justice Ruth Bader Ginsburg, writing for the majority in Christian Legal Society v. Martinez. Martinez revolved around “whether a public law school could deny recognition to a student group that excluded gay men and lesbians.” Ginsburg said: “Our decisions have declined to distinguish between status and conduct in this context.” But the context is what mattered. Justice Ginsburg, writing for the majority, was talking about laws affecting gay men and lesbians. Columbia Law Professor Suzanne B. Goldberg believes that Ginsburg’s statement is reflective of the much larger issue of suspect class status. Goldberg believes that “the court is talking about gay people, not homosexuals, and about people who have a social identity rather than a class of people who engage in particular sex acts,” which is really at the heart of the dignity and citizen status of homosexuals and behind the heterosexual need to keep the linguistic term “marriage” to themselves. If this is indeed the case, then equal protection and due process of law under the Fourteenth Amendment would most definitely apply to homosexuals and same-sex marriage the same way it does in Brown and Loving. But until the negative moral perceptions of perceived homosexual acts meliorates and becomes more widely accepted, any Supreme Court decision of the magnitude Goldberg suggests will be severely criticized by the traditional and conservative segments of United States citizenry. (Garlinger, 2004).

At the end of the day, a separate but equal way of looking at same-sex marriage unavoidably signals that same-sex relationships are of lesser worth. What the Constitution dictates is that whatever

“the state decides to do in this area will be done on a basis of equality. Government cannot exclude any group of citizens from the civil benefits or the expressive dignities of marriage without a compelling public interest. The full inclusion of same-sex couples is in one sense a large change, just as official recognition of interracial marriage (in Loving) was a large change, and just as the full inclusion of women and African Americans as voters and citizens was a large change (after Brown). The politics of humanity asks us to stop viewing same-sex marriage as a source of taint or defilement to traditional marriage but, instead, to understand the human purposes of those who seek marriage and the similarity of what they seek to that which straight people seek. When we think this way, the issue ought to look like the miscegenation issue: as an exclusion we can no longer tolerate in a society pursuing equal respect and justice for all.” (Nussbaum, 2009 ).

While defining issues and outcomes through the court system can be a very long and winding process, recent decisions in the state and federal court systems indicate that an ultimate showdown before the Supreme Court is inevitable. When that day comes, homosexuals and same-sex couples will likely achieve full status as citizens, and same-sex marriage will likely be found constitutional under the Fourteenth Amendment. When that day comes we will take a giant step forward as a civil society that respects the rights and dignities of not only our fellow Americans, but of all humanity.

Thanks for reading.

References:

Adam, B. D. (2003). The defense of marriage act and American exceptionalism: The “gay marriage” panic in the United States. Journal of the History of Sexuality, 12(2), 259-276.

Brandzel, Amy L. (2005). Queering Citizenship? Same-Sex Marriage and the State. GLQ: A Journal of Lesbian and Gay Studies, 11(2), 171-204.

Ferguson, Ann (2007). Gay Marriage: An American and Feminist Dilemma. Hypatia, 22(1), 39-57.

Garlinger, Patrick Paul. (2004). “In All But Name”: Marriage and the Meaning of Homosexuality. Discourse, 26(3), 41-72.

Gerstle, Gary. (2010). Federalism in America: Beyond the Tea Partiers. Dissent, 57(4), 29-36.

Goodridge v. Department of Public Health. 440 Mass. 309. (2003).

Johnson, Kevin R., Burrows, Kristina L. (2003). Struck by Lightning? Interracial Intimacy and Racial Justice. Human Rights Quarterly 25(2), 528-562.

Liptak, Adam. (July 20, 2010). “Looking for Time Bombs and Tea Leaves on Gay Marriage,” The New York Times, p. A.11.

Nussbaum, Martha (2009). A right to marry? Same-Sex Marriage and Constitutional Law. Dissent, 56(3), 43-55.

The Oyez Project, Brown v. Board of Education (I), 347 U.S. 483 (1954) Retrieved November 4, 2010 from: http://oyez.org/cases/1950-1959/1952/1952_1.

The Oyez Project, Lawrence and Garner v. Texas, 539 U.S. 558 (2003). Retrieved November 4, 2010 from: (http://oyez.org/cases/2000-2009/2002/2002_02_102).

The Oyez Project, Loving v. Virginia, 388 U.S. 1 (1967), Retrieved November 3, 2010 from http://oyez.org/cases/1960-1969/1966/1966_395.

Perez v. Sharp (Oct. 1, 1948) 32 Cal.2d 711, 198 P.2d 17, Retrieved November 5, 2010 from http://www.multiracial.com/government/perez-v-sharp.html.

Romer, Governor of Colorado, et al. v. Evans et al. (94-1039), 517 U.S. 620 (1996). Retrieved November 3, 2010 from http://www.law.cornell.edu/supct/html/94-1039.ZO.html.

Sabato, L. J. & O’Connor, K. (2009). American Government: Roots and Reform. New York: Longman.

The Supreme Court of the State of California. (2007). Coordination Proceeding, Special Title [Rule I550(b)] In re MARRIAGE CASES. Retrieved November 3, 2010 from http://www.courtinfo.ca.gov/courts/supreme/highprofile/documents/04State_of_Cal_Reply_to_Supplemental_Briefs.pdf.

Urdan, Matthew S. (2008). Beyond Proposition 8: The U.S. gay marriage ban amendment. Retrieved March 10, 2011 from http://www.insidegov.org/?p=167.

Watson, Lori (2007). Constituting Politics: Power, Reciprocity, and Identity. Hypatia, 22(4), 96-112. Retrieved October 25, 2010 from http://muse.jhu.edu/journals/hyp/summary/v022/22.4watson.html.

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