same sex marriage

Same Sex Marriage Hollingsworth v. Perry With the addition of the 14th amendment to the US Constitution came the equal protection clause, and the due process clause. The equal protection clause requires that all people be treated fairly and the due process clause prohibits government form depriving a person’s life, liberty or property without legislative authorization. Denial of same sex marriage rejects the right of a couple to pursue their natural rights, due process of law, and equal protection. Gay marriage is a relatively new concept that has taken wind in the last decade. The question of considering two same sex partners to be legally married has gone back and forth throughout the legal system. In the state of California, that ruling has flip-flopped several times causing an even greater uproar about gay rights. In 2000, California voters made it clear that they did not want gay marriage and adopted proposition 22 which put in legal writing that “only marriage between a man and a woman is valid or recognized in California” Eight years later the California Supreme Court ruled in the Perry v. Brown case that proposition 22 violated the due-process and equal protection rights stated in the California Constitution. This opposition now allowed the marriage of same sex couples and California issued over 18,000 marriage licenses. Those California resident who were opposed to the new gay marriage laws signed petitions to allow for proposition 8 to be placed on the 2008 ballot. Proposition 8 incorporated the same laws as proposition 22, banning same sex marriage, passing with a 52.3 percent approval. The following year, two same sex couples were denied marriage licenses and decided to file suit. The two couples alleged that proposition 8 violated their fourteenth amendment of equal protection under the United States Constitution. After a lengthy hearing the Supreme Court ruled that proposition 8 did in fact violate the fourteenth amendment, making it unconstitutional for the state of California to deny same sex marriage. (Sontoro) It is one thing to deny someone of a right, but it is complete different when you give that person a right and then take it away only because the majority of your state had voted against that right. Our country was founded on “natural rights” and this is at the forefront of our constitution. It can therefore be considered un-American to deny these natural rights of, life, liberty, and the pursuit of happiness. Our judicial system was constructed with dynamic abilities to transform the law along with the changing times. Back in the day, it was legal to own slaves. This did not make it morally right, however, it was the law. Today, slavery is illegal, and it would be hard to find someone who does not see the moral problems with slavery. (Rubel, Liberty) Just because gay marriage is not legal, does not mean that it can’t be changed. The largest protest against gay marriage is that marriage is only between a man and a woman because “It’s in the bible.” Slavery was in the bible, a book written thousands of years ago. Almost everything about life was different then. In this time, society should be acceptable of people’s choices and not infringe upon their way of life. John Stuart Mills was a utilitarian philosopher who is arguably the best defendant of liberty in western culture. It was Mills who created the “Liberty Principle,” or “Harm Principle.” These principles state that the only reason a government or society should ever infringe upon ones matters is to “protect others from harm.” (Mills) The only person who ought to decide on how an individual is to exercise their liberties and freedoms is themselves. The government and others may believe that they are doing what is best for society, but that does not mean its best for the individual. Mills is a strong believer that, “Government should avoid interfering with the private lives of citizens since they invariably do a poor job of regulation, and cause more harm than good, even when well intentioned.” (Mills) This concept is known as paternalism, where society and / or government have a growing concern over the actions of the individuals, as a mother to her children. In John Mills book “On Liberty,” he sums up his liberty principle into two sentences;
The only end for which people are entitled, individually or collectively, to interfere with the liberty of action of any of their number is self-protection. The only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. (Mills) Same sex marriage does not interfere upon the liberties of others, nor does it bestow harm on others. It is commendable that our democratic system allows individuals to vote and have their voices heard in the law making process. However, it is unconstitutional to have civilians vote to create laws that limit the rights and liberties of other civilians. Those that vote against same sex marriage are clearly not in that type of relationship and voting not to make their lives better, but to make others’ lives worse. Besides having a child, marriage is by far the most intimate relationship that one person can share with another. Passing a law against same sex marriage denies those people from ever experiencing that intimacy. It is also a way for the government and those who voted for it to say that it is wrong to be a gay man or a lesbian. The sexual preferences of an individual are so personal it is unfathomable to think that the government, or other voters think that they have the right to tell someone who they can marry. When the question of same sex marriage laws is viewed through such a lens, the moral choice becomes much clearer. These are simply people trying to live a normal life where they grow up, get married, and grow old with the person they love. Same sex marriage allows for these people to live such a life with the financial and medical benefits of having a companion, as well as the emotional support of a lifelong partner. A state is able to vote on the moral “actions” of a person such as, not allowing people to steal. Nonetheless, they should not be able to vote on the morals of a group of people. For instance, a predominantly white community can’t just vote to not allow blacks to use the buses. Why then should a group of heterosexuals vote to ban gay marriage? If a state is allowed to vote on a “type” of person instead of a person’s actions, the government is telling that group of people that, “we don’t like your kind,” and were going to make a law limiting your human rights. (Hess) The amendment process of the constitution is another prime example of how the law can be reformed to coincide with changes in the American way of life. The due process of law and equal protection rights stem from this amendment process. The fourteenth amendment clearly states “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive a person’s life, liberty; or property; without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” (Rubel, Constitution) The due process clause forces the courts to use fair rulings whenever taking away a person’s life, liberty, or property. The courts also interpret this clause with a person’s inalienable rights which is the acknowledgment that some rights may never be taken away from a person. Some of these rights include a woman’s right to contraception Griswold v. Connecticut (1965) and abortion, Roe v. Wade (1973). (Hess) The equal protection clause prohibits the government from denying one person, or group of people a right that it grants to others. So, when attempting to legalize gay marriage the courts must consider if due process and equal protection laws are violated with a ban on same sex marriage. The due process clause of the Fourteenth Amendment is a better argument to secure a constitutionally protected right to gay marriage. The due process clause says that states may not deprive persons of life, liberty, or property without due process of law. In the court case Loving v. Virginia (1967) the Court decided that states could not ban interracial marriage since "the freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men." To "deny this fundamental freedom on so unsupportable a basis as racial classifications" was unconstitutional. (Stewart) The court decided that they had no authority to deny the right to marry simply based on race because it violated the 14th amendments due process clause. The refusal of same sex marriage denies this due process of law to homosexuals just as it did to interracial couples. Marriage is an individual right and others are viewing marriage as a right given to a couple. By looking at marriage as only between a man and a woman they are denying the individual’s right to marry whom they choose. If a state is going to give benefits to married couples they must do so in an equal manner. The state has no justification why an opposite sex couple should receive more benefits than a same sex couple. (Hess) Marriage is often associated with bearing a child, and this is a main argument used by opponents of same sex marriage. They also believe that children who grow up in a same sex household will experience difficulties. The idea that marriage between two partners of the same sex is unacceptable because they cannot have children is closed minded. The state recognizes couples that are infertile, choose not to procreate, or are too old to have children. Same sex couples are also more likely to adopt a child in need of a home. It is ridiculous that the government would try and stop same sex marriage because it is bad for a child’s environment when there are so many other reasons for a child to have a bad upbringing. For example, the state still recognizes a marriage even if the mother and father are on drugs and constantly in and out of jail. A child needs loving parents to have a proper upbringing, if a couple is allowed to marry then that child will have two parents, instead of someone trying to do it on their own, such as the many single parents in America today. (Hess) Maine was the first state to legalize gay marriage, and only the sixth government in the world to allow it, slowly more and more states are beginning to adopt gay marriage. Just like slavery, at one point it was the norm but over time it became unacceptable. To go back to slavery is unquestionable so why after granting these rights to gay marriage should the government have taken them away just because the majority ruled so. The American judiciary system is the best in the land because it allows for cases such as Hollingsworth v. Perry to allow the law to move with the changing times. This is one of those changing times. Denial of same sex marriage does not treat the individual equally, goes against the 14th amendment and denies that person their natural rights without legislative authority.

Works Cited

Hess, Diana. "The 14th Amendment and Same-Sex Marriage." Http://www.lawanddemocracy.org/. N.p., 1 Oct. 2010. Web. 18 Feb. 2014.

Mill, John S. Ethics and the Military Profession. 3rd ed. Boston: Pearson Learning Solutions, 2011. 343. Print. NROTC.

Rubel, Rick W., Captain. "Liberty and Rights." Ethics and the Military Profession. Ed. Georg R. Lucus, Dr. 3rd ed. Boston: Pearson Learning Solutions, 2011. 339-42. Print. NROTC.

Rubel, Rick W. "US Constitution." Ethics and the Military Profession. Ed. Georg R. Lucus, Dr. 3rd ed. Boston: Pearson Learning Solutions, 2011. 90-91. Print. NROTC.

Sontoro, Thomas, and Stephen Wirth. "Hollingsworth v. Perry." LII / Legal Information Institute. N.p., n.d. Web. 12 Feb. 2014.
Stewart, Justice J., Mr. "Loving v. Virginia." LII / Legal Information Institute. Cornell University Law School, n.d. Web. 18 Feb. 2014.

Cited: Hess, Diana. "The 14th Amendment and Same-Sex Marriage." Http://www.lawanddemocracy.org/. N.p., 1 Oct. 2010. Web. 18 Feb. 2014. Mill, John S. Ethics and the Military Profession. 3rd ed. Boston: Pearson Learning Solutions, 2011. 343. Print. NROTC. Rubel, Rick W., Captain. "Liberty and Rights." Ethics and the Military Profession. Ed. Georg R. Lucus, Dr. 3rd ed. Boston: Pearson Learning Solutions, 2011. 339-42. Print. NROTC. Rubel, Rick W. "US Constitution." Ethics and the Military Profession. Ed. Georg R. Lucus, Dr. 3rd ed. Boston: Pearson Learning Solutions, 2011. 90-91. Print. NROTC. Sontoro, Thomas, and Stephen Wirth. "Hollingsworth v. Perry." LII / Legal Information Institute. N.p., n.d. Web. 12 Feb. 2014. Stewart, Justice J., Mr. "Loving v. Virginia." LII / Legal Information Institute. Cornell University Law School, n.d. Web. 18 Feb. 2014.