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The Gay Marriage: Legal Arguments For and Against

In the United States, married couples receive many legal benefits that couples who live together but are unmarried do not. Because of this gay couples argue that they are unlawfully being discriminated against. Those that oppose gay marriage do so based on primarily religious reasoning and not legal precedent. In contradiction to the Iowa, Connecticut and Massachusetts and likely soon California Supreme Courts in addition to the Vermont Legislature and Washington D.C. City Council, opponents to gay marriage state that State’s or the U.S. Constitution does not address equal treatment under the law. Again, their argument is based on emotion, their religious beliefs held culpable, and not the legal merits of the issue. If a legal case is made by opponents it is that legalizing gay marriage is a ‘slippery slope’ to legalizing bestiality. Proponents may argue that marriage is a contract between a couple and the state, therefore a secular arrangement and out of bounds, constitutionally speaking, for religious considerations. Proponents worry that if lawmakers make laws or the courts interpret the law based on the religious beliefs of the majority, that would be a ‘slippery slope’ to other laws that might make taking God’s name in vain a punishable offense.

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The argument proposed by the opponents of gay marriage is that the U.S. Constitution guarantees a republican form of government in which elected officials are intended to set social policy for the nation. Legislators do this by representing their constituent’s moral views when drafting laws. Because the Constitution bars the intertwining of state and religion, the only method of ensuring that moral and ethical codes are enforced throughout society is through acts of legislation. In fact, lawmakers draft laws that address moral issues constantly and not just in high profile matters such as abortion, pornography and gay rights. When courts determine morality issues, they counteract legislation meant to protect the moral fabric of society and break down the constitutionally guaranteed separation of powers within the government. “When judges erode the power of the people’s representatives to set society’s moral compass, they likewise undercut the authority of parents, schools, and other community groups to set the standards they would like to see their children and fellow citizens live by. Indeed, it is a frontal assault on community values writ large” (Raul, 2003).

Advocates of non-traditional marriage counter this argument by saying that there is no constitutional basis for denying legal matrimony to gay couples. The government was originally formed as an entity meant to champion the rights of the individual whether they are on the majority or minority side of public opinion. Laws that were enacted in the South disallowed the marriage between black and white people but were struck down by the Supreme Court. In 1964, the Civil Rights Act followed the tenets of the Constitution by prohibiting this type of discrimination. The opposition to gay marriage is based on prejudice and, as time passes, the concept will become more and more accepted. It, like racial prejudice, will become socially abhorrent (Sullivan, 2000). In addition, the disallowing of gay marriage by legislation violates the Due Process Clause of the Fifth Amendment. According to the American Civil Liberties Union, “The law [against same-sex marriage] discriminates on the basis of sex because it makes one’s ability to marry depend on one’s gender.” The ACLU continues by saying, “Classifications which discriminate on the basis of gender must be substantially related to some important government purpose. Tradition by itself is not an important government purpose” (American Civil Liberties Union, 1996, pp. 14-15).

More and more, gay couples are insisting that they receive the same legal rights that the traditional, heterosexual married couples receive. Gay rights advocates believe that it is inequitable and biased to refuse to give certain privileges to any couple, gay or not. For example, marriage enables spouses to receive insurance through their partners’ employers. They are also allowed many other legal rights such as the ability to make decisions for their partner who is being hospitalized, have the right to sue on their partner’s behalf and cannot be forced to testify against them in court. Married couples also pay less in taxes and receive many other social and financial benefits. But because gay couples are legally prevented from marrying, they are excluded from receiving the same considerations that married heterosexual couples enjoy (Eagle, 2006). Legal precedent is, again, on the side of gay marriage proponents. Shortly after Alaska adopted an amendment banning gay marriage in 1998, the Alaska ACLU took the State to court on behalf of several gay couples who had a partner employed by the state. The suit claimed that the government practiced institutional discrimination by disallowing benefits to employees’ partners because those same benefits were offered to the heterosexual partners of state employees. The ACLU lost in trial court in 2005, but the State Supreme Court overturned the lower court’s decision. The court ruled that “the benefit system is discriminatory because benefits are extended to employees’ married partners and because same-sex couples are constitutionally barred in the state from marrying” (Gentile, 2006).

The General Accounting Office reported that heterosexual married couples enjoyed more than 1000 benefits and protections. These marriage incentives range from survivor benefits through Social Security, the ability to take sick leave from work to care for a sick partner, federal and state tax breaks and veteran and insurance benefits. They also include things like “family discounts, obtaining family insurance through your employer, visiting your spouse in the hospital and making medical decisions if your partner is unable to” (Belge, 2006). Following the enactment of the Defense of Marriage Acts (DOMA), an amendment added to many states’ constitutional definition of marriage, many lawsuits have been filed all over the country against local and state governments whether or not they offer health insurance and other benefits to their employees’ unmarried domestic partners. DOMA prohibits the state governments from providing benefits to a dependent in a relationship that does not comply with the state’s constitutional definition of marriage. Both the American Civil Liberties Union (ACLU) and Gay-rights groups disagree with these amendments.

The Constitution not only legitimizes gay marriage but implies that the government should never have considered a ban and should instead actively pursue legalizing gay marriage. As citizens of the United States, all people are guaranteed the inalienable right to pursue happiness. It does not exclude on the basis of sexual preference. Opponents of gay marriage believe lawmakers not courts should decide the issue but that is also in opposition to the basic structure of the justice system. Citizens of the nation must decide if it stands for constitutional or religious principles. This is where the debate begins and ends.

Works Cited

  1. American Civil Liberties Union. “Gay Marriage.” California: Greenhaven Press (1996). pp. 14-15. Web.
  2. Belge, Kathy. “The Difference Between Marriage and Civil Unions.” About Lesbian Life. (2006).
  3. Eagle, Jeremy. “Same-Sex Partnerships 2006.” Facts on File News Service. (2006).
  4. Gentile, Annie. “Employee Fringe Benefits.” City and County. Vol. 121, I. 5, p14-16. (2006)
  5. Raul, Alan Charles. “How Legalizing Gay Marriage Undermines Society’s Morals.” The Christian Science Monitor. (2003). Web.
  6. Sullivan, Andrew. “Why ‘civil union’ isn’t Marriage.” Gay Forum. (2000).

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