The objective of the marriage statutes and same sex marriage - Essay Example

 The objective of the marriage statutes and same sex marriage Going by Marshall, C.J. definition of marriage, it is supposed to be a commitment of two individuals for various reasons and one of the expected end results is to bring stability to society. Given the controversy surrounding same sex marriage, majority opinion notwithstanding, the verdict undermines the issue of social stability .It is evident that in trying to arrive at the desired conclusion of the case ,those supporting the idea of same sex marriage relied heavily on loopholes available in the constitution and existing laws of Massachusetts to justify their opinion. For there to be social stability, there must be complete harmony between the contending parties considering that the constitution by safeguarding rights of individuals has the object of creating harmony in society by establishing laws acceptable by all and not merely those accepted by a simple majority. The outcome of this case is suspect of an ulterior motive which leads us to conclude that there is an element of judicial activism. Analyzing the motivation behind the judicial activism is not the issue for this analysis but rather bringing to light the reasons that have led to this conclusion (Ball, 2004, 1184-1232). The Massachusetts Constitution being more proactive in protection of individual liberty and equality than the Federal Constitution would have been a more fare conduit for heresies of offensive and embarrassing nature such as we are dealing with to be sneaked in through exploiting unforeseen weaknesses existing in laws governing marriage of this State. Dignity of a few individuals was indeed protected by passing the laws sanctioning same sex marriage through exploitation of weaknesses found to be in the Federal Constitution. These laws are suspiciously so much into protecting individual rights than promoting social stability where the former would not exist save for the later. The objective of the marriage statutes is to safeguard the principle objective of marriage which is procreation. Rationalizing the statute to being vague about its stand on marriage through referring to the inefficiency in marriage licensing laws especially by stating that it does not explicitly prohibit marriage is tantamount to subversion of natural justice for those responsible for formulating the statutes were expected to have foreseen the problem and adequately address it even before it happened. There is no way the marriage statutes could forbid same sex marriage giving clear definitions of marriage and what society should take it to be in some clause and then intentionally give another contrary idea of what marriage is in its subsequent definitions of marriage without raising any debate (Eskridge, 2001, 853-881). The idea of the marriage licensing laws not prohibiting same sex marriage can be taken as an intention to undermine the inefficiency of grammar in those laws to completely substantiate the object of the encompassing or parent law which is the marriage statute, the object being protection of marriage between people of different sexes for purpose of procreation. This led to existence of a loophole where people of differing opinions could create grounds of making believe the constitutional law is ambiguous in its intentions thereby creating a constitutional avenue through which same sex marriage thrive (Snyder, 2006, 35). By passing that law the intention of the law was subverted and ordinary and approved use of language principle of interpretation of law was misused to beat the very intention of the law. The intention of the marriage statute is clear; the marriage licensing laws are a mere branch through which the objectives of the marriage act are attained and implemented. The marriage statute does not have a provision to indicate that it might have any other differing opinion based on how it substance is interpreted in its subsequent implementation. The meaning of marriage in the laws of Massachusetts can be taken to be silent and its true intent can only be arrived at when subjected to scrutiny under common law. The use of analogies to justify same sex marriage does not render justice to social norms and the institution of marriage. Comparing same sex marriage to marriage between members of different races is demeaning given the gravity of the matter and its implications on social stability not to mention that the notion of same sex marriage being constitutionally justifiable is far fetched. Citing the history of civil law where it endeavors to extend constitutional rights and protections to people once ignored or excluded. By ratifying same sex marriage, this verdict explicitly works against itself considering that this practice is repugnant to a wide section of the population and therefore the decision infringed the right of the laws to grant justice to its people through ratifying a matter of great concern based on very few people representing the actual population. To say that this law in the past has protected rights of women who became married hence justifying protection of individuals who want to practice same sex marriage is insulting to the collective conscience given the contrast of weight between the two issues that the analogy intends to derive its power from. For instance a terrorist goes to Massachusetts bombs and kills thousands of innocent civilians, gets arrested and because the terrorist has access to lots of cash at his disposal, he hires a good lawyer and despite the existence of huge amounts of material evidence linking him to the crime, the highly ‘competent lawyer’ finds a loophole in the laws of Massachusetts which facilitate the release of the criminal, who of course will end up killing again. This indeed though constitutionally justifiable will cast a deep stain on the conscience of the people that the law was supposed to protect violating the fundamental principle of the very existence of the laws and this will have an adverse effect on social stability in the long run if it goes unchecked. History tells us that AIDS was first spotted amongst homosexuals a fact that has not been disputed. Conscientious issues should not be neglected when granting justice to individuals at the expense of the majority who are being affected and therefore either pleased or offended depending on which side the law inclines in rendering justice (Eskridge, 2006, 178). The concurring parties are constantly watering down the issue of morality and social values which are key to arriving at a reasonable judgment acceptable to all if there is to be harmony in society. Greaney J. so much thinks it would be unfair to deny marriage to same sex couples simply on the grounds of their uniqueness of ideas concerning marriage and given the fact that they are our brothers and sisters and fellow workers it would be inhuman to deny them the right to marriage, this is touching but also not reason enough to grant such a right. The marriage as an institution is evolving but the law has a mandate of protecting its people’s conscience by considering the actual majority opinion as opposed to relying on mere usage of art of language to implement policies that could cause conflict as they are not accepted by everybody. The court should be a protector of individual rights and not a creator of such rights. Advocates of same sex marriage should not cite discrimination in building their case as prohibition of same sex marriage is akin to laws prohibiting prostitution which are not discriminatory given their equal application to both male and female. In eliminating the element of racial discrimination, where Caucasian were not allowed to marry non-Caucasians, the law did not imply that it allowed same sex marriages. To this extent, it can be noted that instead of the court of Massachusetts fashioning a remedy to afford greater protection of a right, it used the rubric of due process to redefine marriage. The roots of the institution of marriage are traditionally accepted along the lines of history as a civil union between a single man and a single woman. Therefore the court is not bound to accept sex marriage as a constitutionally protected right. The courts solution to this case far exceeded its jurisdiction mandated by article 30. It amounted to statutory revision when the court interpreted gender specific language as gender neutral which resulted into statutory revision that replaced the intent of the legislature with that of the court. A change of such magnitude in an important social institution as this is only a preserve of the people through a democratic process (Chauncey, 2004, 56). The Massachusetts court ought to have followed the precedence set by the case of Collins V. Harker Heights where the court in extending its constitutional protection to an asserted right or liberty exercised great care when asked to break ground in this field because they realized that the liberty protected by the Due Process Clause could be subtly transformed into policies that were a preference to members of the court (Pinello, 2006, 156). It is clear that same sex marriage has always been forbidden under the marriage statutes and that the court of Massachusetts abrogated the purpose of the substantive due process which is to protect existing rights and not create new ones, to deter government intrusion and not invite it. The Court should not have sanctioned same sex marriages giving a rationale that denying such a right would be tantamount to denying other rights such as raising children that are accorded under marriage. The legislature needs to have had some rationale basis to conclude that family structures of such nature have not been sufficiently concluded to be an equivalent of marital family structure that has established itself as a successful one through out history. People have the right to raise children in any manner of family structure as long as they don’t pause any danger to them socially psychologically or otherwise. The State is not bound to accord similar forms of encouragement, endorsement, and support to any given number of household structures that a free society invents regardless of sympathizers sentiments which are individual and do not represent the view of the public opinion that should naturally reflect in matters as such. Works cited Ball, Carlos. "The Positive in the Fundamental Right to Marry”. Minnesota Law Review, 88:1184-1232, 2004. Chauncey, George. Why Marriage? The History Shaping Today's Debate over Gay Equality Basic Books, 2004. Eskridge, William. Gay Marriage: For Better or For Worse? What we’ve learned from the Evidence. Oxford Univ. Press, 2006. Eskridge, William. "Equality Practice: Liberal Reflections on the Jurisprudence of Civil Unions," Albany Law Review, 64:853-881, 2001. Pinello, Daniel. America's Struggle for Same-Sex Marriage. Cambridge Univ. Press, 2006. Snyder, Claire. Gay Marriage and Democracy: Equality for All, Rowman & Littlefield, 2006. Read More