Throughout the country there has been much debate lately regarding same sex marriage. There is even a proposal to have an amendment added to the constitution to define marriage as between a man and a woman only. However, the constitution of this great country is very clear. Every person in this country is a free citizen and must be treated equally. This includes the right of every person to be able to marry, including same sex couples. This right is long overdue. In the past, interracial marriage was also against the law. However, it soon became clear that to do so was prejudicial and a violation of basic rights. As illustrated in the constitution and several cases throughout the country especially Goodridge, et al. v. Department of Public Health 440 Mass. 309 (2003) the situation is the same in regards to same sex marriage. As a free country, every man and woman has certain rights that they must be allowed without regard to physical or unchangeable characteristics. Just as a darker skin person cannot change his skin color. Homosexuals cannot change their sexuality. Therefore, they can no longer be denied the rights that every other human being in this country has the right to do…Marry.

This paper will illustrate the reasons that the right of same sex couples to marry is justified. The paper will explore the constitution and various recent cases to show that just as interracial marriage was declared unconstitutional, same sex marriage must be declared as such. This paper will also explore the defenses against same sex marriage but will ultimately prove that those defenses are not valid.

The Constitution of the United States is the ultimate governing law for the country. There are several sections of the constitution that support the right of all to marry. The opening paragraph of the constitution alone is very powerful but the Bill of Rights especially the first amendment as well as the fourteenth amendments are also all good evidence of how the laws of this country pertain to this issue.

This country was founded on the grounds that everyone be treated equally. When our forefathers came to this country they came and established a system of checks and balances to ensure that this would be true. The opening paragraph of the constitution states “We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America”. FN1 This paragraph demonstrates that not only did we want everyone to have ample opportunity but we wanted to ensure that everyone was treated fairly.
To reiterate the fact that everyone must have equal rights they also enacted the Bill of Rights. The first amendment makes a solid case for the equality of all people and the right to live you own life without interference from the government. The amendment specifically states “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances”.FN1

The fourteenth amendment of the constitution simply reiterates the desire of our founding fathers to ensure that the government did not interfere irrationally in citizens lives. The amendment specifically states “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”. FN1 This amendment justifies the right by simply ensuring the right of all citizens, black, white, homosexual, or otherwise to live their lives as they so choose without government interference. It also ensures no person is denied equal protection under the law.
The case of Romer v. Evans FN2, illustrates this completely. Voters in the state of Colorado attempted to pass an amendment to the constitution that would have allowed discrimination based on sexual orientation in housing, employment, and many other situations. The Supreme Court declared the amendment unconstitutional, however, stating that it violated the fourteenth amendment by singling out a specific class of people. If gays and lesbians cannot be singled out for discrimination in housing and employment, they should not be excluded from the right to marry either.
Romer v. Evans also helps illustrate that although states are autonomous, they must still abide by the constitution of the United States. Article IV of the constitution contains the full faith and credit clause which basically states that the states must recognize the laws of other states. This rule was tested and verified in South Dakota v. Dole FN3 when Congress enacted legislation that would withhold federal highway funds from states that did not establish the minimum drinking age of twenty-one. The Supreme Court ruled that because Congress’ intent was to make a uniform law it was well within the boundaries of Article IV and that the states had to abide by the decision. Therefore, since several states have enacted some form of marriage and civil union marriage capabilities, as we will see in the following cases, all states should follow and give “full faith and credit” to the laws of the other states.
Other than the constitution, one of the major cases that support the passage of equal marriage for same sex couples is Goodridge et al. v. Department of Public Health FN4. This state of Massachusetts has ruled on this case and it is a major breakthrough illustrating the need for the country to follow suit. This case along with Baker v. State, clearly illustrate the need for this country to reevaluate how it treats a good percentage of our population.
Not so long ago, interracial marriage was also illegal. The Supreme Court, however, decided that this was completely opposite to what the constitution intended and made sure to repeal the law in Loving v. Virginia. FN6 In this case, the Supreme Court recognized that a state could not make laws prohibiting people from getting married based solely on race. A white man and African American woman married in a state where it was legal to do so and moved back to Virginia, a state that had laws against their marriage, and were prosecuted for being married to each other.
The court stated that although the state of Virginia is the governing power over marriages in that state it could not avoid following the fourteenth amendment of the constitution and that the equal protection clause protected such marriages. The Supreme Court specifically stated the statute does “deprive the Lovings of liberty without due process of law in violation of the Due Process Clause of the Fourteenth Amendment. The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men”. The case even defines marriage as one of the “basic civil rights of man” referring to Skinner v. Oklahoma. There is no doubt after reviewing the case that it is completely unconstitutional to discriminate against a certain class of people with regard to marriage.
The Baker v. State case asserts the same. The Supreme Court of Vermont overturned a ruling stating that it did not violate any rights by denying marriage to same-sex couples. The court found that the law was indeed unconstitutional in that it kept same sex couples from enjoying the same rights and privileges as are allowed heterosexuals. The court reiterated that a certain class of people cannot be denied the right to life, liberty, and the pursuit of happiness. It also made sure to explain that the right to marriage is a fundamental right and is important to ensure one’s happiness if that is what they want.
Goodridge et al., is probably the most groundbreaking case in regards to this issue. This case shows how important it is to not exclude same sex couples from the right to marry any longer. All citizens are created equal and must be treated as such. The right to marry includes so many other rights such as the right to inherit the spouse’s estate, the right to file joint income tax, the right to hold a joint household and raise children without government interference.
Many same sex couples have been in relationships for many, many years as the couples in Goodridge have. All of the couples have been in a committed relationship for at least four years and at the most thirty years, some even have children. There is one thing missing though, they cannot marry which is a fundamental right that should be allowed to all. They must find other legal ways to protect all of their assets and make sure that their children can be cared for.
The Goodridge decision attempts to fix these grievous errors. The court refers to Lawrance v. Texas as and illustration as to why these rights are important. Lawrance rationalizes that the government must stay out of the private lives of citizens and has no business intruding into their intimate lives not the partners they choose to be with. This case is a prime example of the necessity of government to allow equal protection of marriage. It also shows that the fourteenth amendment guarantees the rights of all individuals by stating that the “core concept of common human dignity is protected by the fourteenth amendment”.
The state of Massachusetts asserted several reasons why they disagreed with that assertion and why same sex couples should not be able to marry. They include “providing a favorable setting for procreation, ensuring the optimal setting for child rearing, and preserving scarce State and private financial resources”. In this case, the court considered and responded to all of the arguments.
The dealt with the area of procreation first. Procreation, according to the State, is marriages primary purpose. The Massachusetts Supreme Court recognized this as not being true however, in that heterosexual couples are not required to have children if they get married. Fertility has never been a requirement of marriage and should not be. This would also be a violation of the fourteenth amendment because if a citizen will be happier without children they have the right to pursue that.
The next argument is in regards to proper child rearing being acquired only by a couple of opposite sex parents. This argument does not hold up however, as there is no average family type in America anymore. There are often children being raised by single parents, their grandparents, and others. The court quotes Troxell v. Granville FN7 which specifically states that “the composition of families varies greatly from household to household”. There is also no current law in Massachusetts that weighs the best interest of the child against a parent’s sexual orientation. In the majority of states, not only have same sex couples been able to adopt for some time, but if there are second parent adoptions as well. So same sex couples are allowed to adopt, but not allowed to get married. This argument does not hold water either.
The third argument alleges that same sex couples would utilize more public resources and to keep them from marrying restricts this use and preserves funds. However, most same sex couples have been living without government assistance for a great deal of time now so this rational does not survive scrutiny either. There is also the contention that to keep same sex couple from utilizing these resources violates their rights even further. The right of same sex couples to marry would have no economic impact on the government at all.
There has been a further argument that we must preserve the historical significance of marriage and that same sex marriage would destroy that. The court has recognized that this is not true; however, the sanctity of marriage is not threatened in any way. Homosexuals do not want to do away with marriage; they want to be a part of it. They want all of the rights and responsibilities that come with it.
The Goodridge case states that a person does have the right to marry the person of their choice, but it did not go as far as to state that it is a protected fundamental right guaranteed by the United States Constitution. This author takes issue with that in that the constitution guarantees the rights of all of its citizens without regard to race, creed, religion, sex, sexual orientation, or otherwise. There is no statement in the constitution that attempts to exclude any of the above.
Federal ruling was well outside the jurisdiction of the Goodridge case; however, the case did set a precedent. The final ruling of the case concludes that the state of Massachusetts cannot “deny the protections, benefits, and obligations conferred by civil marriage to two individuals of the same sex. This case can only lead to future improvements and the country must take heed.
There has also been in a recent incident in San Francisco, California which initiated a debate about this issue. The mayor decided that the law was unconstitutional and decided to begin issuing marriage licenses to same sex couples. There were some conservative factions that attempted to stop this however, and they succeeded, for now. The same people are attempting to stop the domestic partnership law that exists in this state. The argument is that the domestic partnership law violates Proposition 22 that was passed by the voters in 2000 stating that marriage can only be between a man and a woman. The courts ruled on this issue in 2005 stating that the domestic partnership act does not violate the defense of marriage act in anyway in Knight v. Superior Court of Sacramento County. FN9. The case stated that the domestic partnership does not create a “marriage” and therefore is legal. This, however, creates a separate but equal problem.
Judge Richard Kramer ruled in March of 2005, that keeping same sex couples from marrying is completely unconstitutional and that a civil union or domestic partnership situation creates a separate but equal situation that has long been established as unconstitutional by the United States Supreme Court. Separate but equal was squelched many years ago as violating basic rights. This case is currently pending appeal. FN10 More is sure to come in California on this issue.
Other countries have already discovered that same sex couples have the right to marry and live their lives. Countries such as Canada, the Netherlands, and Spain, have all passed marriage legislation for same sex couples. Eventually the United States is going to have to jump on board. They cannot continue to discriminate against a specific class of people when the constitution strictly forbids it.
There has been many attacks on the civil rights of same sex couples that have managed to overcome creating a climate of change throughout the country. There is no way to avoid it. The United States Supreme Court must consider the case for same sex marriage in this country.
For too many years, same sex couples have been denied the right to marry and utilize all of the rights that come with it. They cannot file joint taxes. They have to petition the courts for the right of inheritance and take extraordinary measures to ensure that their partners can make medical and financial decisions for them. They must spend enormous amounts of money just to protect their family unit. They must jump through even more hoops if they have children together.
Throughout the country there thousands upon thousands of same sex couples who live their daily lives by going to work, paying taxes, contributing to society, raising kids, and doing many other things. Just as African Americans were not recognized in the past even though they contributed great things to society, gays and lesbians are doing the same. As the courts determined it was illegal to discriminate against them, they will eventually realize that the country cannot discriminate against same sex families as well.
Many religions in this country are completely against same sex marriage, however, even several Christian organizations have recently changed there view on the subject. Episcopalians and Presbyterians have recently acknowledged and accepted same sex couples, families, and even ministers. The United Church of Christ have accepted same sex couples for several years and continue to justify the word of God as being a loving accepting God, not a hateful one. The Constitution has protected the right of religion and the right not to be forced into a religion since the founding of this country. We must now take the steps to ensure that religious zealots in this country cannot force their beliefs and that we all have the right to believe what we choose and to exercise such.
The Constitution of this great country ensures the right of same sex couples to marry and raise families. It guarantees the right of all citizens of this country to marry. It guarantees that the government will not interfere with our private intimate lives and will not interfere in our households without just cause.
In this country it has long been held that everyone has the right to the pursuit of happiness, not necessarily to attain it, but to at least pursue it. When we deny the ability of same sex couples to marry we are absolutely denied the pursuit of happiness. We are denying them the right to a family with a strong family unit and the support of the government that they so deserve.
It is time for the country to examine all of the evidence as has been shown here and declare same sex marriage legal. To deny these people that right is completely unconstitutional and against everything this country stands for.
“All men (and women) were created equal”; regardless of race, creed, color, gender, and sexual orientation. This country would not longer deny interracial couples the right to marry nor would hesitate if an African American were being discriminated against and not allowed the rights of all others. We should not be allowing this discrimination against same sex families either.

Footnotes

FN1 The Constitution of the United States, The Bill of Rights, and Amendments 11-27. www.archives.gov

FN2 Romer v. Evans 517 US 620 (1996), ttp://www.ibiblio.org/gaylaw/issue4/index.html

FN3 South Dakota v. Dole 483 U.S. 203 (1987) http://www.oyez.org/oyez/resource/case/363/

FN4 Goodridge, et al. v. Department of Public Health 440 Mass 309 (2003).

FN5 Baker v. State 744 A.2d 864 (Vt. 1999)) http://dol.state.vt.us/gopher_root3/supct/170/98-032.op

FN6 Loving v. Virginia 388 U.S. 1 (1967) http://caselaw.lp.findlaw.com/scripts/printer_friendly.pl?page=us/388/1.html

FN7 Troxell v. Granville 530 US 57,63 (2000)

FN8 Lawrance v. Texas 123 S.Ct.2472,2480 (2003)

FN9 Knight v. Superior Court of Sacramento County 128 Cal.App.4th 14 (2005)

FN10 Same-Sex Marriage in California - Overview and Issues October 2005, http://www.igs.berkeley.edu/library/htGayMarriage.html

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