Prohibit Gay Couples from Obtaining a Marriage License - Research Paper Example

Prohibit gay couples from obtaining a marriage license Introduction Judges uphold and interpret the existing laws, and should refrain from making new laws from the bench. However, in 2004, the Supreme Court of Massachusetts followed by the highest courts of several courts ruled that it was a violation of the US constitutions and individual state constitutions to prohibit same-sex marriages in those states. Massachusetts was the first State to legalize same-sex marriages on 17 May 2004. 12 US states have legalized same-sex marriages while the other states have banned same-sex marriages in their constitutions. The Massachusetts jurists and subsequent jurists of other States that have legalized gay couple marriage licenses have interpreted the law accordingly (Merin 33). The Equal Protection Clause, which forms part of the 14th amendment, prohibits the states from making a legislation that can deny the citizens equal protection under the law (Newton 34). The 14th amendment only mentions the state governments but not the federal government. In this case, the Defense of Marriage Act of 1996 cannot gay couples the right to marriage in the society. Accordingly, the 1996 Defense of Marriage act has not conclusively denied the states the right to grant gay marriage license since it only grants the states the right to not recognize gay marriages performed n other states. In addition, the Defense of Marriage Act1996 legally implied that States has the option of recognizing same-sex marriage. In Massachusetts Supreme Court decision of 2004, the jurists adhered with the equal protection clause since banning gay marriages denied the citizens the right to benefit from various federal government programs and right to be treated equally in the society regardless of the sexual orientation. Jurist activists have observed that equal protection clause of the 14th amendment desired to protect some groups from subordination and thus sexual orientation should be strictly safeguarded (Cahill 165). Strict constructionist jurists oppose the making on laws on the bench since they prefer a conservative approach when issuing judgments on gay marriages. Strict constructionist jurists are of the view that law-making duties should be left to the executive and legislators and judges should never make judicial decisions under the influence of their personal political or policy agenda (Newton 78). The jurists are bound by the ‘original intent’ of the applicable law and exercise judicial restrain in controversial public agendas such as legalization of gay marriages and granting of gay couples a license. These jurists are opposed to the idea of states granting marriage license to gay couples. They argue that the Defense of Marriage Act of 1996 is the underlying law that guides marriages in the constitution. The jurists would argue that the Act prevents the federal government from recognizing any gay marriages. Accordingly, the jurists strictly observe the Act since the States are protected from recognizing gay marriages that have been executed in other states (Cahill 67). Accordingly, the Act conclusively defines marriage as the union between a man and a woman and does not mention the possibility of any gay unions. Strict constructionist jurists argue that Supreme Court of Minnesota in the case of Baker v. Nelson (1971) clarified that any marriage occurs between a man and a woman and entails the possibility of procreation and support of children. In addition, the opponents of gay marriage license argue that marriage is not a right like the right to life or fair trial since it is a privilege and only heterosexual marriages can procreate and serve the purpose of the society (Cahill 265). Although the US is a secular society, a majority of the individuals identify with a particular religion such as Christianity, Islam or even Baptism. All the religions claim that marriage is sacred and involves the union of a man and woman with the aim of procreation (Merin 87). According to strict constructionist jurists, same-sex marriage cannot attain the criteria of civil rights protection as outlined in Civil Rights Act 1964. According to this argument, the civil rights Act aimed at addressing longstanding historical discrimination especially in economic and political matters and immutable characteristics of individuals such as disability, color and ethnic origin of the individual (Cahill 92). Accordingly, gay couples are an emerging phenomenon that is outlawed by the existing laws and gay couples should not be provided with a marriage license (Pierceson187). On the other hand, judicial activists go beyond their powers of interpreting the law and the constitution and engage in making judicial decisions that can be termed as making a new law from the bench. Judicial activists are prone to temptation and influence of the public opinion in making judicial judgments that have high consequences on the nature of the society (Pierceson 107). Examples of judicial activism in the US Supreme Courts include the states that have recognized gay marriages and different Supreme Court judgments that have invalidated some clauses in Commerce contracts. Judicial activist in support of legalization of same-sex marriages argue that states have the right to make their own decisions regarding whether or not to deny same-sex couples the marriage license. In addition, such jurists also oppose the Defense of marriage Act (DOMA) on the grounds that it discriminates against the gay couples since it denies them thousands of benefits and rights by are granted to married couples by the federal government. Judicial activists twist the law in the name of ensuring equal protection and rights of citizens in order to attain their intended results (Nagle 45). Judicial activists assert that gay license is a civil right guaranteed by the Civil rights Act of 1967 as ruled in the case of Loving v. Virginia that concluded that marriage was one of the fundamental civil rights of a man. The case ruled that gay couples have similar protections just like the interracial marriages. Accordingly, the judicial activist would legalize gay couple licenses in states since same-sex marriages is considered one of the longest civil rights struggles that has attracted high publicity in the country. Accordingly, the judicial activists argue that the purpose of marriage is not strictly reproduction since infertile heterosexual couples have been granted the right to marry. Accordingly, the ability to bring an offspring is not criteria for issuing marriage licenses since even some former US presidents did not have any children with their wives (Nagle 63). Another jurists’ activist argument for issuing gay licenses stems from the fact that states that have legalized gay marriages have the lowest levels of divorce in the country. A clear example is Massachusetts State that was the first to recognize the same-sex marriages in 2004. The divorce rates in the State have declined by 21 percent. Accordingly, Alaska experienced an incline of 17 percent in divorce rates between 2003 and 2008 after altering its laws to prohibit gay marriages in the State. It is also evidence that divorce rates are high in the States that have prohibited gay marriages. The jurist activists permit the gay marriage license on the basis that the US is a secular society and marriage is a secular institution thus not governed by any religious moral values (Pierceson 78). Such judges are of the view that laws defining the marriage institutions are outdated in the fast-changing societal values since Judeo-Christian values no longer define what is acceptable in marriage. Accordingly legalizing the gay license does not hurt the existing heterosexual marriages since each individual has the free consent to choose his or her marriage partner. The opponents of gay licenses may counter this argument by asserting that gay marriages may lead to increase in the number of children born out of the wedlock or increase in the number of abortions in the society thus eroding the moral fabric of the society (Nagle 89). Judicial activist judges that have legalized gay licenses follow the existing notion that marriage is intended to provide psychological benefits to the couples (Nagle 78). Accordingly, some states have recognized gay civil unions without providing marriage licenses in order to address the mood disorders and psychological trauma that gay couples may suffer after complete ban of such unions. It is evident that banning gay marriages increases the psychological suffering of the gay couples thus leading to other social problems like increase in alcohol abuse and anxiety among the concerned individuals. In addition, gay license would facilitate integrating of the homeless children in the society since lesbian mothers would be willing to adopt those children (Pierceson 82). Jurists activists in granting gay license in Massachusetts and other states point out the issue of same-sex marriage is not new since several laws have been passed to protect the rights and benefits of gay couples. For instance, Hawaii Supreme Court in 1993 ruled that denying gay couples the right to marriage violates the state constitution since all citizens have equal protection under the state laws. Accordingly, Vermont State had granted the right to gay civil unions and entitlement to the common benefits though the General Assembly maintained the definition marriage as the union between a man and woman. Accordingly, Massachusetts Supreme Court ruling was welcome since creating civil unions would lead to segregation in the society and parallel institutions. Recognition of civil unions such as domestic partnerships accords equal protections and rights under the federal law (Nagle 8). The main aim of the decision was to foster stable adult relationships especially for the young children and community through reducing the divorce rates. Accordingly, the jurists in Massachusetts acknowledged the denial of gay rights to marriage had the potential of reducing the status of homosexuals to second-class citizens is against the US constitution. The judges observed that gay marriages is a choice of ‘language that reflects the assigning of homosexuals to second class status’ thus any laws prohibiting licenses to gay couples could potentially create two distinct social status in the society (Nagle 41). Subsequent jurist activists have challenged the federal law prohibiting marriage since it contravenes some of the rights that are enshrined in the US constitution. The US Supreme Court in the case of Cleveland Board of Education v. LaFleur (1974) clarified that freedom of choice in the matters of family life and marriage is one of the liberties that numerous US legislation and the Constitution aims at safeguarding. According to this argument, the US District Judge in California in 2010 ruled that the Due process and equal protection clause in the US constitution followed in all matters concerning private life. This argument postulates that gay couples have the right of choice in regards to their marriage partner thus; states must not discriminate or prohibit gay marriages in their constitutions (Merin 145). Another argument for jurists activists support for gay marriage stems from the fact that societal attitudes towards marriages have been evolving with time. For instance, interracial marriages was prohibited until the passage of Civil Rights Act 1967 and subsequent Supreme Court ruling that ranted women equal rights and protection within the marriage. Accordingly, Gallup polls demonstrate that the prevailing social attitudes of the citizens support gay marriage license and federal benefits for gay couples. In addition, numerous State laws and federal laws such as the equal employment and opportunity Act grant the citizens equal rights regardless of the sexual orientation of the individual. It is clear that gay couples have enjoyed several benefits, but recognition of gay marriages through issue of licenses will extend additional benefits such as taxation rights and right to inheritance and federal medical health coverage thus contributing to enhancement of the standards of living in the society. This argument is evidenced in the 2009 California Supreme Court decision that held the Proposition 8’s ban of same-sex marriages since the court outlined that sexual orientation should be strictly protected by the law in the cases of discrimination. Subsequently, in 2011, President Obama directed that Defense of Marriage Act was unconstitutional since it violated the gay couples right to equal protection under the US constitution (Merin 218). Business community From a policy standpoint, I believe that jurist activist standpoint portends better for the business community than strict constructionists’ standpoint for the business community. The business community has experienced rapid changes in the environment such as changes in accounting policies, changes in nature of business contracts, mergers, dissolutions and changes in foreign exchange rates and demand in the market (Posner 98). The business community requires a progressive approach to the interpretation of the business laws in order to cater for changes in the business environment. Judicial activists will review effects of particular business contracts such as future contracts and sale agreements (Posner 112). For instance, judicial activists will create liberty of business contracts since two parties with the capacity of entering in to a contract will be able to execute the contract. Although the federal government can make legislation on legal trade activities, the fifth and fourteenth amendment of the constitution protects the citizens’ right to property in employment contracts and citizens have the right to make business contracts outside their state (Posner 234). Accordingly, the free market ideology and globalization is safeguarded through judicial activism. The increased sophistication of business contracts and integration of the global financial systems require a progressive approach to litigation of the business court cases (Posner 56). Conclusion In my opinion, the Massachusetts Supreme Court jurists upheld the law since prohibition of gay marriages had the possibility of contravening universal rights of the individuals. Gay couples should be protected from discrimination in the federal programs such as taxation benefits and inheritance. Accordingly, the gay couples should be accorded equal medical benefits and citizenship rights of the spouse just like their heterosexual counterparts. I believe that excluding marriage license for gay couples is motivated by religious ideals and no legal basis for prohibition of gay couple’s marriages at the State level. The Defense of Marriage Act 1996 should be repealed since it hinders the right of equal protection under the US constitution and economic rights of gay couples. Works cited: Cahill, Sean. Same sex marriage in the United States: a focus on the facts. New York: Prentice- Hall. 2004. Merin, Yuval. Equality for same-sex couples: the legal recognition of Gay couples. Oxford: Oxford University Press. 2013. Nagle, Jeanne. Same-sex marriage: the debate. New York: John Wiley: 2010. Newton, David. Same-sex marriage: a reference handbook. New York: John Wiley. 2010. Pierceson, Jason. Courts, liberalism, and rights: gay law and politics in the United States. New Jersey: John Wiley. 2005. Posner, Richard. Law, pragmatism and democracy. New Jersey: John Wiley. 2003. Read More