Laws Which Ban Marriage between Individuals of the Same Gender - Essay Example

Running head: GAY MARRIAGE Gay Marriage (school) Gay Marriage Introduction One of the most controversial issues in our society today is that of gay marriage. It is an issue primarily because of basic gender considerations, religious, as well as civil rights concerns. While advocates argue that the right to marry must be afforded to all human beings regardless of gender considerations, opponents argue that the basic function of procreation is lost when gay marriages are allowed. Other religious conservatives also argue against gay marriage as they consider it to be an immoral act which is against the teachings of the Bible and their faith. These arguments make gay marriage one of the largely unsettled issues in our society. And this issue will not likely be settled in the contemporary context where conservatives and liberals seem to be bound to contradict each other in almost all issues and points of discussion. This paper shall discuss the thesis: The government has no right to enact laws which ban marriage between individuals of the same gender. It shall clarify arguments for both sides of the issue and state which side of the issue is better defended. This topic is being discussed in the hope of establishing a clear and comprehensive assessment of the issue. Discussion The provision of the 14th Amendment of the US Constitution which is relevant to this issue is in Section 1 which partly 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 laws” (as cited by Cornell University, n.d). These provisions can be used as the basis for gay marriage being a constitutionally protected right. The right to marry between two consenting individuals of legal age can be justified under the right to equal protection of laws. There are however opposing arguments to the legal allowance given to gay marriage. An initial discussion of opposing argument shall be considered below. Against same-sex marriages Those who argue against the same-sex marriages argue that marriage is a legal union between a man and a woman, and as such, two men and two women cannot be afforded the same protection as a man and a woman seeking to marry (Zambrowicz, 1994). Various courts have also cited technical and dictionary meanings of marriages which indicate that it is a union of a man and a woman, and there is no mention of same-sex unions in these definitions. Other opponents to same-sex marriage also set forth that based on the laws today, gay marriages are an oxymoron; meaning, it is an act which does not exist because the legal mandate is still based on the union of man and woman (Duncan, 1996). The argument against gay marriages is also largely based on tradition – a global tradition that gay marriages are largely prohibited in most countries of the world. The US will not likely be the first nation in the world which shall discard the concept of traditional marriages; it will not likely be the first state to express that gay marriages are as important as heterosexual marriages (Willett, 1997). References to traditions and customs were also seen in the case of Jones v. Hallahan where the state expressly stated that marriage is the union of a man and a woman. Same-sex marriage has consistently been disallowed by the courts, with these courts further arguing that marriages must be between a man and a woman (Willett, 1997). Another argument established by opponents to same-sex marriage is that these marriages are basically tied in with procreation. The inability of procreation between same-sex marriages negates support for the institution (Franke, 2006). In the case of Singer v. Hara, the court established that denying marriage licenses to two male parties was not considered gender discrimination, however, it was based on the state’s support for the society viewing marriage as the appropriate forum for having and raising children (Willett, 1997). The argument of barren couples and those choosing not to have children being allowed to enter into marriages is an exception to the rule because the very foundation of the marriage still stands in these scenarios. Other legal authorities have also pointed out that religious passages and traditions oppose the concept of same-sex marriages (Halsall, 1996). In effect, some legislators and judges oppose same-sex marriages because they support the Biblical teachings which establish the fact that sodomy is considered immoral and unnatural. Consequently, making same-sex contact criminal is not just prohibited by law, but it also expresses succinctly that this act violates the policies of the state, and therefore, the courts may utilize the presence of a state sodomy provision to rule that gay marriages violate the public policies of a state (Willett, 1997). Other claims against sexuality have also been made, and one of these arguments is the fact that homosexuality is something unnatural and therefore, allowing state support for it would spread the homosexual preference to a more extensive level (Willett, 1997). Homosexual partners raising children may also be subjecting their children to harassment, bullying, and other prejudices. The homosexual environment is therefore not the conducive environment to raise children (Willett, 1997). Therefore, allowing same-sex unions is a complicated process as it subjects innocent children to situations which they have no control over and which may cause them physical and emotional harm. In support of same-sex marriages On the other side of the debate on same-sex marriages, advocates for the act are rich in arguments and justifications. The first argument in favor of same-sex marriages is based on the due process clause. As was mentioned previously, the 14th amendment of the US Constitution protects individuals’ basic rights to make decisions for themselves in terms of physical intimacy, child-rearing, and in choosing a spouse (Perry, 2007). Even those who have been stripped of their right to liberty, like prisoners, have the right to get married. States are allowed to limit this right to marry if there are compelling reasons to justify the prohibition, including interests of public health, protection of children, prevention of incest, bigamy, or polygamy. Without these considerations, there must be no prohibition on the right to marry (Willett, 1997). Analysts have asserted that the Supreme Court the Supreme Court of the US has recognized the basic right to marry, as well as the other basic rights which surround a person’s right to make a decision. Linking these various rights imply that a person has the right to marry a person of his choosing (Jax, 1995). This argument helps justify the contention that the basic right of an individual to marry is one which should stay with an individual regardless of the gender of the person he/she wishes to marry. Proponents of gay marriages also argue that the right to marry a person of one’s own choosing is a basic right which belongs to an individual; states and legal authorities therefore must have a strong and legal reason for preventing such a right (Krantz and Cusick, 2005). Moreover, if the reason for preventing the marriage is very much compelling, the reason must still serve the purpose of the state. The proponents point out that the state purposes are really not compelling; or if some of these are indeed compelling, they are not further supported by the restriction. “Reasons for the restriction include prejudice towards homosexuals, promotion of procreations, public mortality, and interest in the upbringing of children” (Willett, 1997). Supporters of gay marriage also highlight the fact that prejudice must not be part of governmental aims. This fact saw application in various Supreme Court decisions where the court prevented the passage of laws which discriminated against gays and lesbians (Lum, 2008). Procreation being a crucial factor in the same-sex debate is not also considered compelling evidence in the prevention of same-sex marriage. Even if the government interest of procreation were established as indeed compelling, supporters of gay marriage argue that the restriction does not impact, nor does it affect state interest (Willett, 1997). It is important to note in this regard that gay couples often end up opting not to have children or adopting children in order to fulfill their goals of procreation and of parenthood. In relation to the argument on harassment made on children of same-sex marriages, proponents of same-sex marriages argue that preventing same-sex marriages does not guarantee that children would not suffer any harassment or bullying. Other factors may affect a child’s upbringing including divorce, violence, and abuse which may happen in any family regardless of the parents’ sexual orientation (Chauncey, 2005). As for homosexuality being ‘spread’ by children of homosexuals, studies indicate that the rate for children of homosexuals and children of heterosexuals being gays is the same. In effect, the child of a homosexual has as much a chance of being gay as the child of the heterosexual (Fitzgerald, 1999). A parent’s gender orientation therefore has nothing to do with a child’s future sexual orientation. The contention that same-sex marriage restrictions are against the equal protection of rights of homosexual couples prevented from marrying is the most powerful argument which can be made in this debate (Perry, 2007). The restriction prevents marriages to individuals who choose a partner of the same sex, these individuals are not treated the same as applicants who choose the opposite sex. In effect, there is a discrimination against homosexuals and courts need to apply the equal protection clause in order to ensure the equal treatment of homosexual and heterosexual couples (Perry, 2007). Personal position Based on the above discussion, the side better defended is the side favoring gay marriages; in effect, it is the side which argues that the state has no right to curtail same sex marriages. It is important to note that there has to be compelling reasons for any legal and preventive policy to be set. Such compelling reason is not however seen in the arguments against same-sex marriage. By compelling, it is important to note that it must be a strong and significantly impactful argument. Barring such a cause, the argument cannot be considered compelling. The arguments made by those who oppose gay marriage are not compelling enough. They do not provide sufficient justification for the disallowance of gay marriages. It is easy to note that if gay marriages were to be allowed it would not lead or mean a catastrophic rift in our society and in our processes and policies, or even belief systems. This side is also better defended because the proponents of gay marriage were able to cite case laws and other credible sources. They were able to argue their point logically without some vague references to something which may or may not happen. I find the side which argues in favor of gay marriage more superior because it is supported by the US Constitution, more specifically the due process and equal protection clause. In its broadest interpretation, the equal protection clause provides strong support for gay marriage and the fact that no laws must be passed to deny people their basic rights to marry and to choose whom they would marry. This clause provides adequate and detailed arguments for gay marriages, and they refute adequately each of the arguments set forth by those who oppose gay marriages. In effect, it is possible to evaluate the various points of contention for each party before a person can make his own assessment regarding the debate. I support gay marriage because it is part of the liberties and the rights which each person has. Each person must indeed have the right to marry and the right to choose whom they want to marry. Sexual orientation must not be used as basis for this basic right, because marriages must be based on two people falling in love and choosing to sanctify and legally protect their union. It is not based on the need to have children, children can after all be born even without marriage and a child’s adequate rearing is not based on the gender of parents or even the presence of both mother and father. The 14th amendment of the US Constitution also protects a person’s right to marry. It is part of his liberty, same as his right to go to work, to build a home, or to build a family. Such liberty must not therefore be prevented by laws or restrictions passed by the state. Conclusion The above discussion sets forth the two sides of the debate on gay marriage. The government has no right to enact laws which ban marriage between individuals of the same gender. Those who argue against gay marriage establish that it is against the teachings of the Bible, that it is immoral and unnatural, that it negates procreation, and that it is against the traditions of the country and of the global community. On the other side of this argument, the 14th Amendment of the US Constitution sets forth the equal protection clause which prevents the passage of laws which curtail the rights and liberties of citizens. Moreover, the right to procreation is not negated by gay marriages. I choose to argue in favor of gay marriage because it is well supported by the US Constitution and it is logically supported by sound evidence and discussions in its favor. Reference Chauncey, G. (2005). Why Marriage?: The History Shaping Todays Debate Over Gay Equality. California: Basic Books. Cornell University (n.d). US Constitution, 14th Amendment. Retrieved 17 August 2011 from http://topics.law.cornell.edu/constitution/amendmentxiv Duncan, R. (1996). Homosexual Marriage and the Myth of Tolerance: Is Cardinal OConnor a Homophobe?. Notre Dame J.L. Ethics & Public Policy, volume 587(589). Fitzgerald, B. (1999). Children of lesbian and gay parents: a review of literature. Spokane Falls University. Retrieved 17 August 2011 from http://faculty.spokanefalls.edu/InetShare/AutoWebs/kimt/AW%20articles/Children%20of%20Lesbian%20and%20Gay%20Parents.pdf Franke, K. (2006). The politics of same-sex marriage politics. Columbia Journal of Gender and Law, volume 15(1), pp. 236-248 Halsall, P. (1997). Lesbian and Gay Marriage through History and Culture. The Final Testament. Retrieved 17 August 2011 from http://www.gay-bible.org/other/halsall.htm Jax, C. (1995). Same-Sex Marriage--Why Not?, Widener J. Pub. L., volume 4(461), p. 488. Kruntz, R. & Cusick, T. (2005). Gay Marriage. New York: Infobase. Lum, A. (2008). Eliminating Prejudice Against Homosexuals. University of Hawaii at Manoa. Retrieved 17 August 2011 from http://www.english.hawaii.edu/namanao/Vol.1-No.1/PDF/AshleyResearchArg.pdf Perry, M. (2007). The Fourteenth Amendment, Same-Sex Unions, and the Supreme Court. Loyola University Chicago Journal, volume 38, pp. 215-245. Willett, G. (1997). Equality Under the Law or Annihilation of Marriage and Morals? The Same- Sex Marriage Debate. Indiana University. Retrieved 17 August 2011 from http://www.law.indiana.edu/ilj/volumes/v73/no1/willet.html#N_1_ Zambrowicz, K. (1994). To Love and Honor All the Days of Your Life: A Constitutional Right to Same-Sex Marriage? Cath. U. L. Rev., volume 43(907), pp. 916-17 Read More