Monday, October 25, 2010

An Amateur Legal Perspective on Gay Marriage

I've been reading a book lately called The Nine: Inside the Secret World of the Supreme Court. Within it is a history of the past twenty years of the Supreme Court, the personalities and approaches of its justices, and a play-by-play of every major decision the court has made in that time period. Upon reading it, I've been seeing legal perspectives, precedents and cases on dozens of different judicial decisions, and through it (and classes taken in college) I've been reminded of the laws of the country, and how they can be applied to issues today.

And then it occurred to me. According to what I've read, it looks to me that the act of gay marriage should be legally protected by our constitution. But I don't want to provoke or offend anyone. Consequently, I am writing this because the laws of the United States and the Constitution seem to indicate an inoffensive road to take that should be followed if only in respect for the laws of the land. The question is not whether you think it is right or not, but whether there is legal standing for it to exist. In this post, I plan to expand on this and explain how it is this is the case. And to see if my cooked-up amateur legal rationale actually makes sense.

Separation of Church and State

The traditional purpose for marriage (within America) has always been to officially unite a man and woman under God. This perception has applied within Christianity, Catholicism, Judaism, Islam, etc. For centuries, this has been the case and has been formally recognized by the state as a valid union that is given legal benefits. One primary reason gay marriage has met such opposition is this tradition of marriage being between a man and a woman, as per religious writings and opinion.

However, the legal fact of the matter is that denying the same privilege and same legal benefits to a man+man or woman+woman creates a breach in the separation of church and state. As the First Amendment of the Bill of Rights reads, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." By rendering benefits to the majority of religious unions versus the minority of those who want to marry on a homosexual basis, the United States is committing religious favoritism which is unconstitutional. Being picky over the moniker of "marriage" also looks unconstitutional on this basis as there is nothing in the Constitution suggesting that religious practices or ceremonies cannot be utilized uniquely for secular purposes.

Equal Protection Clause

The Equal Protection Clause is the part of the Fourteenth Amendment to the Constitution which states that, "No state shall... deny to any person within its jurisdiction the equal protection of the laws." During the Civil Rights cases, this was also refined to focus on what is called the State Action Doctrine, which limits the guarantees of the Equal Protection Clause only to acts done or sanctioned by the state. Under this clause and this doctrine, restricting gay marriage is unconstitutional as marriage is sanctioned and supported by the state, along with the legal benefits that are entailed.

The essence of this is that homosexuals are being discriminated against and their equal protection status is not being met. Consequently, maintaining this state of affairs is unconstitutional and should be addressed from a legal standpoint.

Right to Privacy

While, on the surface, citing this right seems more of a stretch than the other arguments, the truth is that it is just as valid as the others. The current trend is in allowing homosexuals to obtain 'civil unions', but not to allow marriage. It is arguable that segregating the two not only pokes the bees' nest of civil rights, but also attaches a social judgment that affects the lives of those homosexuals who do chose to utilize the civil union route. The result is enforced state stigmatization, or creating an environment where the family lives of homosexual couples are repeatedly interrupted and hindered. The fact of the matter is that being in a civil union raises far more questions than being married does; this can be seen in filling out legal paperwork, buying a house, adopted children going to school, etc. This stigmatized/complicated lifestyle is caused solely by government and state law, creating an impugned right to privacy that should not be maintained.


From my reading and research it seems clear that gay marriage should be as permissible as traditional marriage from a legal standpoint, if nothing else. But the fact of the matter is that traditional habits and religious opinions have stopped this from happening on a federally enforced level. What is odd is that, when approached in Supreme Court cases over the years, opposition to such a legalization has been based on opinion alone, in spite of legal precedents making it a necessity. Thus it seems that many of the justices who have been appointed to maintain the law of the land are, in fact, ignoring legal evidence in favor of their own personal and religious opinions.

And this is part of what has made my book about the Supreme Court so interesting to read. Most justices on the court make their judgments based on established law and legal precedents, but there are still some that gum up the process by making judgments based simply on their own opinions. This is not what they are appointed to do, so it makes me curious as to how they get away with it. I will have to look into what serves as checks and balances to the Supreme Court later.

But, for the present, the laws appear to be overwhelmingly in favor of legalizing gay marriage. I would be curious if anyone disagrees as to this assessment.

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