In the wake of the Supreme Court decision to review two cases involving same-sex marriage, DOMA or the Defense of Marriage Act, and Proposition 8, the California statute that provides for marriage being between one man and one woman, groups opposed to same-sex marriage are once more drowning out reasoned voices.
I expected at the very least a well founded argument considering the relative merits of both sides of the argument. In the USA Today I found two views, one in favor of gay marriage and one against. The argument in favor was fairly well-reasoned, but the opposing view was anything but. It was produced by a senior counsel for the Alliance Defending Freedom, a right-wing group promoting a religious lifestyle.
In all, ten lower courts have found DOMA to be unconstitutional, since it discriminates against an arbitrary group of people based on their sexual orientation. This is not a complex constitutional question requiring many months of deliberation. It should be quite clear that government should not be in the business of deciding who should be allowed to marry. Just as miscegenation laws forbidding marriage between the races was found unconstitutional on similar grounds, so DOMA is likely to be deemed unconstitutional.
Choosing whom one wishes to marry, and spend if not the rest of ones life, a reasonable period thereof, ought to be a decision taken by consenting adults. there are rational reasons that those that have not yet achieved majority should require permission from a justice, and that there should be compelling reasons for the marriage.
There is an open question whether a person, be it either man or woman ought to be able to marry more than one partner at the same time. If there is no particularly compelling reason that two adult people ought to be allowed to marry, are there reasons that a single individual should not marry more than one partner? That is not the question at issue here.
The arguments in favor of gay marriage are quite straightforward. Leaving morality aside, since that really is subjective, DOMA is unconstitutional. Arbitrary discrimination cannot be allowed under an open constitution. Nine states already allow same-sex marriage.
The question must be whether the remaining states can continue to disallow gay marriage, or whether that would constitute a violation of the Equal Protection clause of the Constitution. Can a marriage be treated as a legal avenue in one state, and yet be illegal in another? I am no legal scholar, but I imagine it would be difficult to argue that a legally constituted marriage in one state can not be given due process in another.
Allowing gay marriage does not violate religious freedom in any way, since churches may refuse to officiate at gay marriage ceremonies if they so wish, or refuse to recognise those marriages. They cannot impose their religious views on people that want to be married. I would imagine that they can excommunicate them if they so wish, but they cannot impose their religious will on the state.
Those are some of the legal arguments in favor of same-sex marriage. One would imagine that the opposition would have equally compelling legal arguments in dissent of gay marriage. The argument I found in USA Today was anything but.
The argument proposed by ADF goes along these lines;
According to the ADF, a federal court in Hawaii reasoned that “government can rationally conclude that, other things being equal, it is best for children to be raised by a parent of each sex”. The argument continued that there are rational reasons for defining marriage as between a man and a woman.
History shows us that marriage comes in a variety of forms. It has never been a simple one man, one woman affair. As I wrote a few days ago, some societies are polygamous, that is a single male having a number of wives. It is common in the Middle East, and many parts of Africa, that men take more than one wife. The current president of South Africa, Jacob Zuma is a polygamist with up to six wives. Mormons in the United States were polygamous until it was made illegal.
In some countries, today mostly in Africa, but in the past, including European countries, children were raised by the community, not by a two parents. Since life was very unpredictable, orphans needed to be raised by the society. Apprenticeships were common from a very young age, when children were sent to convents or monasteries to train as nuns or priests, or to masons to learn their trade.
The concept of children being raised in a two parent family are quite recent. Children in the nineteenth century were often seen as a burden, and ignored entirely, or sent away almost as soon as they could walk.
In many societies, even today, girls as young as nine or ten are married off to men often many years their senior. Girls are often sent to brothels at a tender age to learn the trade, since they are seen as worthy only for trade. WHile it may be less common, it still does happen.
The idea of traditional marriage is just a right-wing creation that exists only in their minds.
The question of whether heterosexual couples are better parents again is just a subjective emotional decision that has little basis in reality. Children today, in Western societies are raised in any one of a number of situations.
The fact is, parents, either one or both die, end up in jail, or hospital, or in divorce court. People marry others, or leave their spouses, leaving children to be brought up by step parents or partners of either sex. Children may be left, by necessity with aunts or uncles, grandparents, or even brought up by a sibling. Children can be moved around within an extended family, or end up in foster homes, or adopted by strangers.
To say that people that do not have a traditional upbringing with two natural parents are in some way disadvantaged or lesser people because of their upbringing is belied by the enormous number of people who succeed despite their upbringing. Our current President is the result of a failed marriage, brought up by a grandmother, and yet he graduated from Harvard as the editor of their law review, and became President.
There are a great number of traditional marriages that are anything but successful, with parents on alcohol or drugs, parents that assault their children physically, emotionally and/or sexually. There are no guarantees that a traditional marriage is going to produce emotionally stable and healthy children.
It really is insulting to all those people who do not live in traditional marriages to say that the children would have been better off in a traditional marriage. There are no doubt countless gay couples that raise healthy children. Whether those children will be gay does not depend on their parents, it depends on their genetic make-up and their decisions about which path they will follow. Parents do not consciously determine their genetic predispositions.
There is one thing that conservatives, especially religious conservatives love to claim whenever legal arguments like this go before the courts. They say that judges cannot make law, that it is up to legislatures to make law. What they do not seem to comprehend is that judges, and especially Supreme Court justices must interpret the Constitution.
Regardless of what the legislature may produce, if their laws are not constitutionally founded, they must be overturned. If conservatives don’t like that, they must go the route of the constitutional amendment, which is unlikely to pass.
Conservatives want to leave it up to legislatures to decide questions like this, and yet, a solid majority of people in this country are in favor of gay marriage. Even if a national referendum were held, it does not change the fact that DOMA is not constitutional. Conservatives cannot have it both ways.
The idea that marriage is a unique relationship n which men and women “bring distinct, irreplaceable gifts to family life” also does not hold water. Any relationship is unique, and any two people bring a variety of gifts, problems, emotions, knowledge and intellect to a relationship.
Men and women are not carved from stone, they are malleable, changeable, and traditional gender roles can easily be reversed, or mixed. The idea that people fit neatly into a box is ridiculous.
Conservatives like the ADF like to claim that there is a public interest in marriage. The state cannot have an interest in marriage without violating the freedoms of the people. Should we go back to a society in which partners are chosen by lot, or a panel of experts who would consider which two people are most suited to one another. It is a fundamental violation of freedom for government to get involved.
A marriage license is not about proving love, that is true, it is about agreeing to live in a legally binding relationship, to which the state may attach certain benefits. There is no reason two people of the same-sex should not be given those benefits. Marriage has nothing to do with the continuance of society, which will continue whether people marry or not.
There is no demonstrable difference between men and women other than their phenotype, expressed as sexual organs. All people have gifts that are interchangeable. To put men and women in separate categories just perpetuates the right to discriminate on an arbitrary basis.
It is not a matter of finding generic parents for children. If a marriage includes children, it is only a matter of whether those children will be cared for in a loving,nurturing relationship. There is no reason that two men, two women, a man and woman, a grandmother, or any combination of people cannot provide a nurturing environment.
Conservatives should do what they preach and give people the freedom to live their lives as they see fit, not as the church sees fit, or the religiously minded see fit. Liberty is freedom for everyone, not just one man and one woman.
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