Gay Marriage – A Civil Right Or Just Not Right?

Wedding BandsIt seems so long ago, ancient practically to most Americans, that interracial relationships were forbidden.  Back in June 1958, a black woman named Mildred Jeter and a white man named Richard Loving went to the District of Columbia to get married.  The decision to do so was spurred by the need to circumvent a Virginia law, the Racial Integrity Act of 1924.  When they returned to Virginia, they were arrested, charged, and found guilty.  Cue to March 17, 1994, where Massachusetts became the first state to legalize gay marriages.  Thousands flocked to Massachusetts to submit applications for marriage licenses.  Within a year, 6,200 gay couples had been married.  Despite that, the federal government refused to recognize those marriages, despite the fact that most states recognized those out of state marriages.

There is a similarity in both events.  In both cases, couples were denied a fundamental right, the right to marriage.  In both cases, the perceptions of the nation were not supportive of a marriage that differed from the traditional view of marriage.  In 1958, the view of marriage was one between couples of the same racial backgrounds, although there were interracial relationships in existence, unheard of only decades earlier.  And yet, the notion of traditional marriages was being challenged.  The idea of a black woman and white man marrying was shocking to a conservative southern state like Virginia.  Jeter and Loving decided to challenge that view, and in June 12, 1967, the Supreme Court issued the following decision:

“There is patently no legitimate overriding purpose independent of invidious racial discrimination which justifies this classification. The fact that Virginia prohibits only interracial marriages involving white persons demonstrates that the racial classifications must stand on their own justification, as measures designed to maintain White Supremacy.  We have consistently denied the constitutionality of measures which restrict the rights of citizens on account of race. There can be no doubt that restricting the freedom to marry solely because of racial classifications violates the central meaning of the Equal Protection Clause.”

Now over 50 years later, the nation faces the same question, and possibly the same turning point, that faced the nation when Jeter and Loving challenged the traditional values of marriage.  The “traditional” value and perceptions of marriage are no longer based on race, but based on the idea that marriage occurs only between a man and a woman.   That view is now being challenged, even though that definition was only legally defined fourteen years ago, on September 21, 1996, when the Defense of Marriage Act (DoMA) defined marriage:

In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word “marriage” means only a legal union between one man and one woman as husband and wife, and the word “spouse” refers only to a person of the opposite sex who is a husband or a wife.

The Atlanta Journal-Constitution on Thursday, February 24th, reported:

An Associated Press-National Constitution Center Poll conducted last August found 52 percent of Americans saying the federal government should give legal recognition to marriages between couples of the same sex, while 46 percent said it should not.

In polling by ABC News and The Washington Post, support for the legalization of gay marriage climbed from 37 percent in 2003 to 47 percent in February 2010.  A poll by the Pew Research Center for the People and the Press in September found 43 percent of those surveyed favored allowing gays and lesbians to marry legally, and 47 percent opposed it — the highest support for same-sex marriage in the center’s polling back to 1996. The poll showed wide partisan divisions: 55 percent of Democrats and 46 percent of independents favored same-sex marriage, but only 21 percent of Republicans.

It was only on December 15, 2010, that President Barack Obama signed a bill repealing the military policy of “Don’t Ask, Don’t Tell.”  For the first time in nearly two decades, the servicemen and women of the Unite States military would no longer need to hide their sexual orientation.  Men and women who put their lives in harm’s way to defend, and die for, our country, would no longer need to do so while denying their identity.  In fact, Dick Polman of NewsWorks suggests that the passing of the repeal of “Don’t Ask, Don’t Tell” shows that the country is not entirely against same sex marriages, as they were nearly fifteen years earlier:

The bottom line is, most Republicans seem to understand that they can no longer get politician traction by going after gays. Some GOP lawmakers even voted with Democrats in December to permit gays to serve openly in the military, and Obama has suffered no backlash since. Indeed, the muted response to the demise of Don’t Ask Don’t Tell has clearly emboldened the White House to take the next step and abandon its legal support for DOMA.

And it seems to be happening not just at the federal level, but at the state level as well.  Since Massachusetts passed the law legalizing gay marriages, four more states have passed similar laws, in Connecticut, Iowa, Vermont, and New Hampshire.  And just last week, Hawaii joined six other states in recognizing civil unions or broad domestic partnerships (California, Illinois, Nevada, New Jersey, Oregon, and Washington).  And only two days ago, Maryland’s State Senate gave preliminary approval for a bill that will allow gay marriages, which would make it the sixth state to legalize gay marriage.

Jeffrey Toobin of The New Yorker offers some interesting arguments of why Obama’s decision to stop defending DoMA may force courts to review cases involving gay marriage with the same scrutiny once applied to cases involving minority rights:

….It’s very unusual for any Administration to refuse to defend the constitutionality of a law that is already on the books….the letter raises an even more important…position that “classifications based on sexual orientation warrant heightened scrutiny.” This may sound like legal mumbo jumbo, but it’s crucial….in 1938, Justice Harlan Stone said that the Courts should give greater scrutiny to one category of laws: those that affect minorities. In real terms, that meant that if a law treated a racial minority differently from other people, the Court would apply what became known as “strict scrutiny” and almost always declare it unconstitutional. In the nineteen-seventies, the Court started ruling on laws that treated women differently. The Court said that these laws wouldn’t receive strict scrutiny (like racial laws), but still “heightened scrutiny” (rather than, in legal lingo, a “rational basis” test). In real terms, that has meant that the Court has now also struck down most laws that treat women differently….Under the heightened-scrutiny test, …there is no justification for DOMA, so it is unconstitutional. (DOMA says that the federal government will not treat gay people who are legally married in their states as married people under federal law. So a married same-sex couple in Massachusetts is not treated as married under, for example, the Internal Revenue Code.)….if a Court would apply heightened scrutiny to the ban on same-sex marriage, there is no way that it would be upheld…

 All in all, Obama’s decision creates an interesting dilemma for the conservatives, as the foundations of federal and state law against gay marriage are slowly eroding.  It may very well mean that the one of the final groups of “minorities will finally gain recognition of their identity and their rights.  Benjamin Franklin once said, ‘”In this world nothing can be said to be certain, except death and taxes.”  And yet, it seems he forgot to add a third certainty… change.  And yet, the arguments against change, and gay marriage, are that it destroys the foundation of marriage, family values, and religious freedoms.

The Alliance Defense Fund, a conservative organization, states on their website:

The homosexual legal agenda is one of the greatest threats to religious freedom in America today. For decades, radical activists, led by the American Civil Liberties Union (ACLU) and its allies, have tried to divorce America from its Christian heritage and values. Their strategy is twofold: dilute moral values so that homosexual behavior is thought to be normal, natural, and good, while suppressing the religious and free speech rights of those who disagree. If they successfully impose their radical legal agenda, then all people especially Christians who do not affirm homosexual behavior could be silenced, punished, and possibly even jailed for so-called discrimination and intolerance.

Christians know that marriage was created by God as the union between one man and one woman. And from this sacred institution comes the natural family, which is the building block of society and the most favorable environment for children. In spite of this, advocates for same-sex “marriage” demand that their behavior be normalized, treated the same as a marriage, and promoted by law. Should such laws take effect across the nation, then religious liberty as Ms. Feldblum points out must give way to the new laws protecting same-sex “marriages.” This is not merely a theory. For example, after the Massachusetts Supreme Judicial Court fabricated a right to same-sex “marriage,” Catholic Charities was presented with the choice: either allow same-sex couples to adopt, or close their doors. Rather than compromise its core beliefs, that organization chose the latter.

As many ADF cases show, Christian views on marriage and human sexuality will be challenged if same-sex “marriage” is accepted by law. If this happens and God’s plan for marriage is dismantled, then your religious freedom and the God-given, constitutionally protected rights that enable you to freely live out your faith will virtually collapse….In a dangerous decision that could ultimately threaten your religious freedom, the federal judge ruled that California’s voter-approved constitutional amendment protecting marriage as the union of one man and one woman was unconstitutional. But, despite this disappointing ruling, the battle is far from over….the final outcome could have serious implications for marriage and religious freedom not only in California, but in all 50 states. This is exactly what these radical activists want to take away the people’s right to express their will regarding the future of marriage. The greatest risk will be to the 45 states where citizens have already established laws or constitutional amendments that preserve religious freedom by keeping the definition of marriage as the union of one man and one woman.

Who is right?  Are the conservative arguments for the protection of the institution of marriage valid, or do gay couples deserve the same rights as heterosexual couples?  Will a decision like Loving v. Virginia come to be, and make gay marriages a normal part of our lives in time?  Or will it lead to greater erosion of family values and the further redefining of what marriage is?