What Arguments Can Stand in a Constitutional Analysis of Gay Marriage Laws - Essay Example

Introduction Gay marriage is a controversial issue that should not be. On one side is a fundamental right being denied to an entire of people.On the other side is fear, prejudice and a reliance on the Bible. There is never been a cogent argument that is convincing on the side of the gay marriage opponents. Their arguments include the slippery slope argument, which means that if gays are allowed to marry, so should pedophiles, people engaging in incest and people engaging in bestiality; that marriage is based on procreation, and the related argument that children deserve a mother and father; and that the Bible proscribes homosexuality. As this paper will show, none of these arguments can stand in a constitutional analysis of gay marriage laws. Argument Keeping gay marriage illegal is a violation of the homosexuals fundamental right to marriage. Loving v. Virginia, a 1967 Supreme Court case established marriage as a basic right that is fundamental to ones very existence (Loving v. Virginia, 388 U.S. 1 (1967)). Marriage has always been the cornerstone upon which other rights are based - the right to inheritance of property is one such right - and other are associated with marriage as well. For instance, the right to make medical decisions on ones behalf if that person is incapacitated; the right to be with the person if that person is in the hospital; the right to collect ones pension after one passes away. These are all rights that are associated with marriage, rights that homosexuals are denied by these laws. While these are important rights, the most important right, the fundamental right to be married to the person of ones choice, the right that Loving stated was fundamental, is the most important right that is denied. There are certain rights that are basic, so basic that there is no question that they should ever be infringed – the freedom of speech, the right to the pursuit of happiness, the right to procreate, etc. These are rights that are arguably given to us by our creator, and the right to marry is certainly considered one of those rights. To deny this basic right to an entire class of people is not just wrong, but unconstitutional. That homosexuals are denied the right to marry is a deplorable thing, but when examining the reasons why homosexuals are denied this basic right, it becomes clear that the other side does not have a legitimate argument that is constitutionally based to continue to deny this basic right. One of the arguments is that allowing homosexuals to marry is a slippery slope – that if homosexuals are allowed to marry, pretty soon people will be marrying their dogs, their daughters, and 12 year olds. This is one of the sillier arguments in the debate, but, since it is one that is often heard, it must be addressed. First, there is a clear difference between a loving, reciprocal relationship between two adults and all of the scenarios mentioned above. The most obvious difference is that the other relationships – incestuous, pedophilia-based, and bestiality-based – do not involve consent. An animal cannot consent to bestiality, just like a child cannot consent to sex. With incest, there is the distinct possibility that there is consent, but not in the true sense, as the consent is probably based upon a power imbalance or some other psychological reason. On the other hand, a homosexual relationship is presumably based upon loving consent between two equal partners. Two, the major difference between a homosexual union and one based upon pedophilia, incest or bestiality is that the very acts of pedophilia, incest and bestiality are all illegal. On the other hand, homosexual sex is not illegal in any of the fifty states, and the reason for this is because of the case Lawrence v. Texas (539 U.S. 558 (2003)). Lawrence established that sodomy laws are unconstitutional. Therefore, homosexual acts are not illegal in any states, nor can any state make them illegal. On the other hand, as argued above, all of the other acts that are mentioned in the “slippery slope” argument are illegal, probably in all fifty states. Therefore, the “slippery slope” argument cannot stand, as, logically, if the act itself is illegal, so would be a marriage based upon that act. Another argument that is used by gay marriage opponents is that the bible forbids homosexuality, and that allowing homosexuals to marry would somehow be encouraging an act that is biblically proscribed. There is so much wrong with this particular reasoning that it is difficult to know where to begin. However, a good starting point would be the constitutionality of using moral concerns as a basis for the denial of a basic fundamental right. Roe v. Wade (410 U.S. 113 (1973)), the controversial abortion case, indicated that morality is not a legitimate concern upon which to base a law that affects ones fundamental rights. Roe v. Wade is proper in asserting that sheer morality should not be a basis for the denial of fundamental liberties, simply because ones persons morality is another persons immorality. Some people believe that it is very immoral to deny adults a basic right; others believe that homosexual acts are immoral. Whose version of morality trumps in this situation? The law cannot fairly decide between two separate, conflicting versions of morality. This is the reason why the law cannot be based upon morality, as it is an entirely subjective concept. What about the biblical proscription against homosexuality? Isnt that a legitimate reason to deny homosexuals the right to be married? Actually, no, simply because the Bible is not a universal book. Buddhists have their own book, as do Hindus, Muslims and Jews. Unless our society is prepared to base laws based upon proscriptions in all of these books, along with the other books that are sacred to other religions not mentioned above, then the Bible cannot be a basis for any of our secular laws. And, the principle of the separation of church and state also comes into play. Although it is arguable as to what the nuances of this concept mean, the basic gist is that religion and laws shall not mix, so basing a law on the religion of a specific class of people would definitely be unconstitutional. And besides, the Bible is considered anachronistic by many people, if not most. Exodus 31:14 states that if one “desecrates” the sabbath that person shall be put to death, and if one works on that day, that person must be cut off from his or her people. While the term “desecrates” is unclear, it is pretty obvious that the people who get drunk and rowdy and curse at football games are probably in violation of this law. Would the people who believe the Bible to be the unerrant word of God be supportive of giving these rowdy, drunken people the death sentence? And, many people work on Sundays, because they have to. Would the Bible believers be supportive of cutting these people off from the people? The answer to that is a resounding “no”, because people understand that these proscriptions are anachronistic and would not apply to todays society. One cannot pick and choose Biblical passages – if the proscriptions against homosexuality are followed to the letter, so must the proscriptions against desecrating the Sabbath or working on the Sabbath. Either all admonitions and proscriptions must be followed or none of them. By picking out selected Biblical texts to bolster ones point, while completely ignoring other ones as if they do not exist, the people who use the Bible to justify their positions are being hypocritical at best. Next, the argument that is roundly used, which is that procreation is the basis for marriage and, since homosexuals cannot procreate, this is a reason to deny them the benefit of marriage. Okay, then, lets take this to its logical conclusion. If the inability to procreate is truly a good reason to deny marriage, then, logically, 80 year olds in a nursing home should be forbidden to be married. So should a woman who has had a hysterectomy. A man who has had a vasectomy. Couples who simply do not want children. These are all classes of people who would be denied the right to marry, if one argues that marriage is strictly for procreative purposes. Yet, if the legislature dares deny any one of these classes the right to be married, there would, rightly, be a great outcry from the people. It would never stand. After all, these individuals – the senior citizen, the infertile man or woman – they are not a part of an abhorrent class, therefore their rights should stand. But the gays, that is another story. They are abhorred, therefore it is okay to deny them their fundamental rights. Related to this is the argument that children deserve a mother and father. This is another red herring argument, for most states allow homosexuals to adopt a child, therefore whether or not those homosexuals are married is irrelevant. Other states do not allow homosexual adoption, and there is no indication that allowing homosexuals to marry would also result in forcing these states to also permit homosexual adoption. In other words, marital status is irrelevant to whether or not a homosexual can or cannot adopt a child. Conclusion There is no legitimate reason to deny marriage to homosexuals. The reasons that are given by opponents are based upon religion, prejudice, fear and irrelevant concerns. Marriage is a fundamental, sacred right. As such, there has to be a damn good reason to deny this right to any one class of people. Denying the right because the Bible says that homosexuality is wrong, or because an individual or group of people find the act of homosexuality deviant, are not legitimate concerns and are not the basis upon which ones fundamental rights should be denied. Legislatures cannot pass laws, legitimately, that infringe upon the rights of a minority just because the majority does not like that minority -the very basis of our constitution is the protection of the minority from the tyranny of the majority. Moreover, it is becoming increasingly clear that the “majority” who oppose gay marriage are rapidly becoming the minority anyhow. Therefore, the laws forbidding gay marriage are constitutionally unsound and immoral, and should not stand. Sources Used Lawrence v. Texas, 539 U.S. 558 (2003). Loving v. Virginia, 388 U.S. 1 (1967). Roe v. Wade, 410 U.S. 113 (1973). The Holy Bible, New International Version. Colorado Springs, CO: Biblica, 1984. Read More