One of the most interesting social issues in modern times is the issue of same-sex marriage. The core of the issue is whether marriage should be strictly limited to persons of the opposite gender and whether such limitation is ethical. Legally, the states within the United States have always had jurisdiction over marriage laws, but surprisingly, many of the states had never defined marriage to be a union a man and a woman.
It was only after some states began granting gays the right to marry that many other states decided to preemptively bar gay marriage by creating laws that define marriage to be a union between persons of the opposite gender. Even Congress passed the Defense of Marriage Act in 1996, which defined marriage as a legal union that is exclusively between one man and one woman. The moral question is: is it ethical or moral to define marriage to be a union between a man and a woman, and to be ban gays from marriage?
One of the arguments used by opponents of gay marriage is that the Christian Bible defines marriage to be between one woman and one man, and that “God” forbids homosexual acts, and therefore, opposes gay marriage. But isn’t deferring to the Bible or Christian ideology or any religious ideology to justify state legislation a violation of the Constitutional tenet of the separation of church and state? I believe it is.
I believe the separation of church and state protects the rights of all who choose to practice their chosen religion as well as the rights of all those who choose not to practice any religion; therefore, one cannot cite religious beliefs to deny or allow gays the right to marriage. Another argument put forth by opponents of gay marriage is that marriage is a tradition, and as a tradition, we must look to the past for its definition. Same-sex marriage opponents affirm that historically, marriage has always been between one woman and one man, and therefore, same-sex marriage cannot be allowed.
Then, by the same argument, can we also look to the past to define other traditions that have been altered in modern times. One can argue that one should look to the past in order to craft laws governing the handling of estates because historically, estates are handed down through paternalistic lines of lineage. Property can only be bequeathed to men. Women were not allowed to own property. Can one not say that the tradition of bequeathing estates to the male lineage be honored and that all estate laws be altered to honor such tradition?
I think to follow such logic, there would be grave injustice. By the same token, should we allow humans considered to be subclass, whatever that may mean, to be enslaved as history proves to be the case? Should we overturn universal suffrage because traditionally, only white men were allowed to cast ballots? Should we also turn back the hand of time, and overturn the rights afforded by the Civil Rights act? One may argue, traditionally, discrimination was a common practice and therefore, should be sanctioned by law. Should we also institute the separate but equal traditions in the American South?
Traditionally, blacks and whites attended different institutions and used different public facilities. Should we also look to the past and uphold such “traditional” practices, albeit discriminatory and unjust? As an example that serves as a better parallel the issue of same-sex marriage, I refer to the laws that had banned interracial marriages in several American states, and which had been upheld from colonial days to 1967. If one were to uphold the argument that we must look to history for definitions of marriage, then we must declare all current interracial marriages null and void.
Clearly, the argument that we must use history as a reference when dealing with current social issues is an inadequate one. History is replete with social injustice and abuses; therefore, history serves as poor reference when we confront ethical issues in the present. In addition, if we constantly look to the past to address our current social issues and dilemmas, how would we ever make any social progress? We would be forever chained to the mindsets of the past and never break out in any new social directions, if we were to always defer to history.
In the past year, two states that had legalized gay marriage had a turn of events by which gay marriages were abolished: California and Maine. In California, marriage licenses were granted to same-sex couples; however, the public had voted in favor of a state constitutional amendment which bans on gay marriages in the State’s Proposition 8. However, in an interesting turn of events, all same-sex marriages that were performed before the state amendment took effect are still recognized as valid marriages by the state of California.
In Maine, the law granting same-sex marriage legal status was struck down in a public referendum before it could even take effect. These two referendums brings into question whether it is ethical for the majority to vote on the rights of the minority. In a democracy, the majority rules, but the rights of the minority must be protected – a democracy cannot exist without protection for the minority. This is the basic tenet of democracy by which the founding fathers created the United States.
So, with that said, is it right for the majority in a democracy to vote against the rights of the minority? Should we put the rights of the minority up for public vote? Is that ethical? To answer this question, I turn to a great quote by one of the premier philosophers of the 20th Century, Ayn Rand: “Individual rights are not subject to a public vote; a majority has no right to vote away the rights of a minority; the political function of rights is precisely to protect minorities from oppression by majorities (and the smallest minority on earth is the individual). Imagine if we had put the Emancipation Proclamation up to individual state referendum back in the 1860s? What would be the results of the voting in states, particularly those in the south? What if the 19th Amendment of the United States, which gave women the right to vote, were put up for a national referendum, how would the voters, which were all men, have voted? How would the Civil Rights Amendment of the 1964 fare in the southern states, where racial tension was concentrated, if it were up for approval by he public vote?
Clearly, these legislation would have been defeated in some, if not most of these, states had the public been allowed to vote because in all these cases, except for the case of women’s right to vote, the majority would have voted away the rights of the minority (women are not considered a minority in the United States, but a disenfranchised group). Therefore, placing the legislation for same-sex marriage up for public referendum is unethical and may even be considered unconstitutional in our democracy.
Furthermore, aren’t the denials of marriage licenses to same-sex couples of a violation of the Equal Protection Clause of 14th Amendment of the U. S. Constitution, which states “no state shall … deny to any person within its jurisdiction the equal protection of the laws? ” Isn’t the Equal Protection Clause based on the premise espoused by the founding fathers of our nation that “all men are created equal? I believe such denials are a gross violation of the Equal Protection Clause, for they proclaim loud and clear that same-sex couples are denied the benefits and protection that marriage laws provide based on the very nature of who they are as individuals. Some opponents of same-sex marriage endorse the idea of a civil union for same-sex partners. Some claim that a civil union would allow states to legally recognize the relationship between same-sex partners, and so therefore, same-sex partners can enjoy the same protection and be afforded the same rights as married couples.
So would this be the solution to the same-sex marriage controversy? At first, civil unions for same-sex partners seem to be the answer. After all, they would be granted the same rights and benefits as married partners by the state, and polls have indicated that a greater percentage of people have no problems with gays and lesbians entering into civil unions. However, the problem with civil unions is that it is not recognized at the Federal level, so even though civil union couples would enjoy the benefits of the state, they would not be enjoy any benefits of the federal government, such as social security.
For example, the surviving spouse of a married couple would automatically receive the social security payments of the deceased spouse, whereas the surviving partner of a civil union would not receive such payments because a civil union is not recognized by federal agencies. But what if we simply changed the federal laws to recognize civil unions? Wouldn’t such legislative changes level the field for both marriage and civil unions? Both institutions would be equal in the eyes of the law. But would this be Constitutional? The Supreme Court had ruled in the case of Brown v. he Board of Education that applying the principle of “separate but equal” was inherently unequal and therefore unconstitutional. This principle was further extinguished by the Civil Rights Act of 1964. Although the United States Constitution does not specifically assert the right to privacy, many cases involving interracial marriage, abortion, contraception have been argued before courts on the basis of one’s right to privacy. Doesn’t the issue of same-sex marriage fall into the same category of a person’s right to privacy – that one has the right to marry whomever one chooses?
I believe this gay marriage is very much a private issue, one that is now being encroached upon by government. Opponents of gay marriage often carry the argument further by stating that if gays granted marriage, then that opens the door to marriage between brothers and sisters, or humans and animals. I say this argument is preposterous. No reasonable person would see the logic of allowing two consenting and un-related adults to marry leading to state sanctioned bestiality.
I am pretty sure such ridiculous assertions were made when interracial marriage license were legalized in some states, and so far, I have seen much animal-human hybrids walking about. Lastly, I appeal to the ethical imperatives of Justice and ask questions pertaining to gay marriage issues within the context of Justice: Are we being fair or just by denying same-sex couples the right to marry? Are benefits equitably distributed if gays are denied the rights and protection that come with marriage? We may even ask if the burdens are equitably distributed?
This brings to mind a recent quote by singer and entertainer Dolly Parton when she spoke in support of gay marriage: “Sure, why can’t they get married? They should suffer like the rest of us do. ” These questions easily point to the answer – no, the benefits would not be equitably distributed if gays are denied to participate in the institution of marriage. One really has to wonder what is the basis by which to deny gays the marriage? What does it cost anyone if gay marriage were allowed to proceed? Would gay marriages affect opposite-sex marriages, and if so, how?
Some would answer ‘yes’ to that last question because they claim it tarnishes the institution of marriage. But if that is the reason why gays are denied the right to marry, then such denials are based solely on prejudice. And I can’t think of any ethical nor legal reason to deny gays the right to marriage except for the reason of pure prejudice and intolerance. Reference The U. S. Constitution at Findlaw. com Dolly Parton Voices Support for Gay Marriage http://www. theboot. com/2009/11/17/dolly-parton-gay-marriage/5 http://www. brainyquote. com/quotes/keywords/majority. html