Same-Sex Marriage and the Constitution - Literature review Example

Gay Rights Same sex marriage is one of the major constitutional issues across different nations although the epicenter of gay right activism is America where several states have already legalized marriage between both sexes in Vermont, Connecticut, Massachusetts, Iowa and New Hampshire. Does same sex marriage belong to the category of a fundamental right of the Constitution? Well, there are millions of questions that have been raised regarding this issue and it is undoubtedly true that gay rights activists are leaving no efforts to place themselves in a common forum in order to voice their anguish against the law makers. However, securing a legal protection is difficult and complicated for gays because this relationship is far removed from the natural biological association that exists between a man and a woman. While gay marriage is a hot topic for debate, there are other political issues and economic problems that grip the governments of most countries which may be a reason for pushing the demands of gay activities behind although it is only human to allow the homosexuals to be protected by law. The basic question here is that marriage is a fundamental and constitutional right held between both parties and the gay activists demand their right to be made constitutional. As a matter of fact, the same sex couples have been fighting for their rights for a long time since the early phases of 1970 and the results were bewildering when the Supreme Court of Hawaii passed an order that the prohibition of same sex marriage is undemocratic and illegal (Gerstmann 4). This decision had put the entire nation in crossroads and the citizens of Hawaii intended to vote against this ban in order to maintain the sanctity of marriage. It would be best to put in this manner that marriage between two parties is a private matter and there should be little or no intervention of the government machinery or the Constitution even when it is about same sex marriages. In short, homosexual marriage is an individual responsibility like heterosexual relationships and marriages. It is also stated that if morality and relevance is taken into account the debate regarding gay marriage takes a backseat, which is also referred to as “reciprocal constitutional disadvantage”. The consequences are not astounding since the ideas are based on moral premises. There must be a certain or correct answer to the question whether marriage between same couples are constitutional or not, but it is largely based on one’s own perception (Siedman 137). For people of same sex who are keen to enter into a relationship for life, marriage is an important aspect, which is perhaps not for the heterosexual couples in the real sense. For the gay activists getting protection by means of constitutional machinery corresponds to their dream as they have moved to court several times in order to put forth their demands for eradication of marriage and its monopolistic aspect which works only in favor of heterosexual couples (Gerstmann 13). The justification of gay marriage and making it a constitutional right is not merely an idea, but it has now reached a stage wherein there is adequate emotion and intelligence although the attorneys and courts have failed to realize what equality actually means for gay couples. Marriage is not an institution that cannot be ruled solely by the conventions and principles of church. This is indeed true because separation is on the rise among heterosexual couples and procreation can never be the only objective of marriage. Although homosexual couples have urged the court for granting them with the license of marriage, the issue was never this hot until the order of the Hawaii Supreme Court was passed although it is still to come into effect owing to the appeal of the opponents. However, such marriages can also be challenged under Equal Protection or Substantive Due Process. The components of the former prevent marriage between same sex and sexual union between gay couples although on different grounds than the usual ones for which the class of gay or lesbians is an important consideration and deemed as a vital parameter for legality of sexual union between same couples (Strasser 2). According to the current agitation that is taking place regarding the legalization of gay marriages, it can be said that more changes in the Federal Laws can take place in the near future as the restrictions of Constitution that are predominantly bias cannot prevent same sex couples from uniting with each other through the institution of marriage. At the same time, it can be argued that children of lesbians or gays might be at a greater risk of developing different idiosyncrasies as they are unable to adapt themselves with their parents who are involved in same sex relationships. There are various studies and researches that reveal the repercussions of such marriages among these children who are actually considered as the basic structure of the society and devoid of societal welfare. As a result of this division, many children of same sex couple or those who have seen their parents engaged in same sex relationships cannot get over the fact and take to drugs and other bad habits. It is still unfortunate for gay and lesbian couples not to get the right to marriage as people in authority love to think that granting this independence is intended to challenge the morality of judgments that are implemented for challenging the marriage laws as applicable to gay couples (Siedman 141). Marriage is essentially unequal in nature as the association of two couples does not guarantee that an echelon of love and devotion is enough for thriving in the relationship. Owing to this, heterosexual couples have disintegrated a lot during the recent times and the numbers are scary. With such statistics in hand, it becomes debatable whether legal right of marriage can be granted to same sex couples or not. On the other hand, it can be argued whether the demand of gay activists is really of any significance or not. Thus, gay couples can be happy staying together, but the question is of social acceptance and even the most modern minds would not feel comfortable to challenge the conventions of law. There can be several impediments in the way of establishing the importance of marriage among gay couples. In this context, even the gay couples could not remain united as to which issue must receive greater attention whether protection through civil rights or something as grand as a married relationship. In the first place, the question of equality came under challenge from different quarters as the behavior of gay couples did not seem legal to them. Although different courts have challenged the rights of same sex marriage on the basis of researches, but there can be sufficient arguments to establish the existence of other associates of marriage including abortion, conception and union of people belonging to different races (Strasser 3). As far as gay marriage is concerned, the medical facts are rarely considered important and more people argue on the basis of their perceptions that are not only irrelevant but also imprudent. Therefore, it can be easily understood that the legal rights of marriage and union of same sex cannot be decided on one parameter. There are myriad issues that are to be considered particularly the well-being of the children of our society. The moral environment that nourishes our children is also challenged when gay marriage becomes a law. While it is assumed that the trait and the tendency to interact and live with the people of same sex come as a habit, doctors argue that it is congenital and surfaces at a later stage. Whatever the reasons may be, it is amazing to watch a habit becoming a full fledged revolution as more and more gay activists are coming together to seek their rights and obtain the right to marry with constitutional banner. While analyzing the subject of same sex marriage, the beginning should relate to the reasons for which marriage is considered significant. The stability of relationships and the growth of healthy children within the society can be considered as the direct and positive outcome of marriage. In short, it leads to productive lives for the people living in society. Therefore, procreation is one of the most apparent consequence of a married relationship; thus, there cannot be a reason to cite that such a thing cannot be maintained in case of gay marriages as they will also give birth to healthy children and there are slight differences between them and their counterparts except for their longing towards people of same sex. Why should such an important decision be made on the basis of a difference that is largely physical and less psychosocial? (Strasser 2). It is a hard fact that the state takes considerable interest on the marriage of two people and the children born out of biological wedlock arguing that such children will thrive under much better conditions simply because those children with grow under the company of both parents whereas children of same sex marriage would not get such opportunities. Besides this, they may also have to face bullying reactions from others in educational institutions or even among peer group, which takes a toll on their mental and physical health (Strasser 2). On the whole, the state or the constitution should not have much difficulty while granting the gays and lesbians their right to marriage as it does not have any direct liaison with this fact or other societal norms. It should then take substantial interest and express concern over broken families to a great extent. After all, there are enough evidences to show that marriage is essentially a relationship rather than an institution framed by legal aspects. In fact, the legal aspects of marriage make it crucial for people to abandon the significance of being in relationships. The most important arguments that have been put forth against establishment of gay marriage are primarily instinctive in nature and based on those premises that do not even help in masquerading the bias against the monopoly of heterosexual marriages. In other words, those arguments are mere definitions by choice that are illogical and uninformed (Gerstmann 21). The example in this book by Evan Gerstmann is humble and fair: “Suppose a mountain is defined by any hill whose peak is at least one thousand feet above sea level. If some geographers were to suggest that we start calling hills over nine hundred feet mountains because hills of this size have more in common geologically with mountains than with smaller hills, we would be surprised if a geographer responded , “But we can’t do that ; by definition, a mountain must be over one thousand feet”(Gerstmann 21). The example that has been quoted above from the book by Gerstmann clearly reveals that the legalization of gay marriage must be reviewed with greater accuracy and precision. The most common problem that is a rather obstinate barrier in this case is the ability to develop ideas that are rational and abandon trends simply because of the rule of law that is imposed on anyone who is a faithful follower of the Church; nowhere does marriage fail to seize the exact word that would make legalization of gay marriage much easier than ever. Marriage is largely associated with the legal union of two individuals who are man and woman and producing children thereby leading to a happy family. Accordingly, the major hindrance in this case would be created when the couples belongs to same sex. If human beings have been equipped with the independence of choosing everything, marriage in this case should also remain a legal and liberal entity rather than a constituent of the church (Lopez 1). The thinking is obviously more justified than the execution. Easier said than done, gay activists are not wrong in forwarding their proposition that they are inclined to live together as couples, which can be viewed as an honest disposition. They are much like other human beings who can feel, speak and express their emotional state of mind and not caged birds struggling to reason their voices. The society is often too harsh towards all those people who are unable to comply with the rule of law or moral conventions. When it comes to the moral aspect of gay marriage, the situation is perplexing and things here should start with the structure of the society. The laws of the society are not enough for allowing people to live a life, which is filled with goodness. In short, these laws are applicable to only a few good men in the real sense and they are not all encompassing in nature. However, it is thought of that those belonging to run-of-the-mill situations are unable to accept the wide range of choices that they face or circumstances in which they live. Hence, these people often end up making the wrong choice. It seems meaning less that when people grow up in perfect conditions they keep fumbling with their choices (Siedman 143). There are few orthodox men who, despite of the downfall of societal structure consider that gay marriages are unfair and socially unacceptable. It would be better for them to understand that the most important feature of a marriage is the level of commitment and love and not social strictures that are capable of creating more promiscuity than gays or lesbians do. According to observations, couples of same sex are extremely good companions of each other and capable of rendering long-lasting relationships by defying infidelity and encouraging the spirit of togetherness (Lopez 2). Thus, in no way does gay marriage interfere with the goodness of love and life rather, help in strengthening the ties of love. It cannot be overlooked that marriage is not always about conventions except for the rituals that it follows; instead it makes and builds relationships for the development and progress of society. In this context, if the lifestyle of gays would have followed an alienating aspect as they are viewed by the society or cause harm to anyone, the voice of the opponents could have been stronger. Unfortunately, it is not because sexual relationship between same couples cannot be abandoned based on the age old conventions before assembling the nuances of relationships. As a matter of fact, a relationship is far too complex and meandering than the efforts required by the opponents of gay activism and the courts to nullify the same. By advancing the demands of gay marriage, the court of law will only promote the fact that when one of the partners is in need of financial help the other is bound to comply. Thus, need in marital relationship is not mere requirement, but being there for each other in times of need (Siedman 3). If this perspective is true, then each of the partners must help the other and make the relationship pious and virtuous by exhibiting true love towards each other. In the same manner, the legalization of gay marriage and substantiating it with constitutional aspects does not intervene with the moral constituents of marriage rather enhances its consummation in a perfect manner. References Gerstmann Evan. Same Sex Marriage and the Constitution, CUP, 2004, Print. Lopez Rex. Should Gay Marriage Be Legalized, Germany:BoD, 2007, Print. Strasser Mark. Legally Wed: Same Sex Marriage and the Constitution, Cornell University, 1997, Print. Siedman Louis M. Gay Sex and Marriage, The Reciprocal Disadvantage Problem, And the Crisis in Liberal Constitutional Theory, Retrieved on April 15, 2014 from http://scholarship.law.georgetown.edu/cgi/viewcontent.cgi?article=1033&context=fwps_papers Strasser Mark. The Challenge of Same Sex Marriage: Federalist Principles and Constitutional Protections, United States:Praegar, 1999, Print Read More