The Argument For…

So in the process of a massive cleaning out of my room, I came across a paper that I wrote during my semester of Bible college for the honors English composition class I was enrolled in. In some ways the disagreement the topic caused between myself and my professor contributed (albeit in a small way) to my eventual departure from the school. But in light of the continued progression of the homosexual rights movement I thought that the topic is still pertinent and for the sake of sharing some thoughts I thought I would share the paper here so that those who are interested could have the opportunity to read it. Personally I don’t think its my best writing. I stayed up until 3am the night before and skipped chapel the day it was due in order to get it done. And while my professor disagreed with my final conclusion, she graded the paper fairly. For the sake of how ridiculous works cited pages are, I’m not going to paste them here, but if you are really that interested I can provide sources.


Same-Sex Marriage and the Constitution

In recent decades, a growing movement of homosexual rights activism has led to a growing debate in America’s legislative and judicial bodies over the very nature of marriage itself. Homosexual couples seeking full marital rights in the eyes of the state have met with opposition in the form of state amendments defining marriage as being strictly heterosexual in nature. Additionally, several congressional attempts at defining marriage as strictly between a man and a woman have moved across the floors of the House and Senate. However, such a measure would deny the rights of homosexuals as American citizens as protected by the Constitution of the United States. The national and state governments in the United States should not pass a ban on same-sex marriage because such a measure ignores the Due Process and Equal Protection Clauses of the Fourteenth Amendment and violates the constitutional rights of United States citizens.

            The Fourteenth Amendment was adopted into the Constitution of the United States following the Civil War in order to grant freed slaves equal rights. Since its adoption, the amendment has been applied to the broader scope of citizenry, protecting the rights of individuals from overbearing government intrusion into personal affairs. Two key phrases in the amendment are of specific concern to the question of same-sex marriage: the Due Process Clause and the Equal Protection Clause. The exact wording of the clauses state: “No State shall   . . . deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws” (US Const., Amend. XIV, sec. 1). This guarantees that the government must apply all laws and practices equally to all groups within the confines of standard government practice.

            The right to marry is a fundamental right guaranteed by the United States Constitution, and as such, it would be unconstitutional for any legislation, by state or nation, to deny a fundamental right from its citizens. In the wording of the Declaration of Independence, “all Men are created equal . . . they are endowed by their Creator with certain unalienable Rights . . . [and] among these are Life, Liberty, and the pursuit of Happiness.” These rights, protected by the Constitution of the United States, cannot be infringed upon by any government institution or law. In the interpretation of law, the Supreme Court has continued to define the civil liberties that are protected from government intrusion. In the 1967 case Loving v. Virginia, the Supreme Court overruled Virginia’s miscegenation laws, which prevented mixed-race marriages. In the ruling, Chief Justice Warren stated: “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” (Loving v. Virginia). The Court found that the state’s attempt to deny a couple a legal marriage was unconstitutional according to the rights guaranteed in the Fourteenth Amendment. In denying same-sex couples legal marriages, the same Fourteenth Amendment rights are being violated that were protected in the decision of Loving v. Virginia. Marriage is a fundamental right protected by the Constitution and an attempt to deny this right is an unconstitutional act. In prohibiting same-sex marriages, the government would be violating the Fourteenth Amendment rights of United States citizens.

 In the interpretation of the Due Process Clause, the Supreme Court has, through a series of rulings, adopted a broad approach to the interpretation and application of due process. Under the principle of stare decisis, Latin for “to stand by things decided,” previous court decisions set precedents for future court rulings of similar application (Bruce 1). As such, any future court cases involving the rights of same-sex couples must take into consideration previous rulings dealing with the same issue. In the interpretation of the Due Process Clause, there is an inherent right to privacy guaranteed by the Fourteenth Amendment. In Planned Parenthood v. Casey, the Supreme Court sought to determine what exactly was meant by the liberties the Due Process Clause guaranteed. In a joint opinion delivered by Justices O’Connor, Kennedy, and Souter, the court ruled the following:

The adjudication of substantive due process claims may require this Court to exercise its reasoned judgment in determining the boundaries between the individual’s liberty and the demands of organized society. The Court’s decisions have afforded constitutional protection to personal decisions relating to marriage, procreation, family relationships, child rearing and education, and contraception and have recognized the right of the individual to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child. (Planned Parenthood v. Casey)

The Court’s decision ruled that, in defining the liberties protected by the Due Process Clause, individuals are constitutionally protected from government intrusion into their private affairs. Among these privacy rights are included personal decisions relating to marriage and the family.

            In Lawrence v. Texas, the court referred back to the decision made in Planned Parenthood v. Casey, further expanding upon the definition of liberty within the Due Process Clause. The significance of this case is that it specifically involved intimate relations between homosexuals, thus bringing the Due Process Clause into the same-sex marriage debate. The Court ruled that Texas’s anti-sodomy law was in violation of the Fourteenth Amendment because it violated the principle that “the State is not omnipresent in the home” (Lawrence v. Texas). In specific relation to the debate over same-sex marriage, the court determined that the liberties guaranteed by the Fourteenth Amendment, as noted in Planned Parenthood v. Casey, applied also to homosexuals:

Adults may choose to enter upon this relationship in the confines of their homes and their own private lives and still retain their dignity as free persons. When sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring. The liberty protected by the Constitution allows homosexual persons the right to make this choice. (Lawrence v. Texas)

Thus, in accordance with the rights protected within the Due Process Clause, among the constitutional rights of citizens is the inherent right to privacy and freedom from government intrusion into deeply personal decisions, such as birth control, marriage, and family choices. Lawrence v. Texas applied this privacy right to same-sex relations, protecting homosexuals from unwarranted intrusion into their private affairs.

In seeking a Congressional ban on same-sex marriage, Congress would be overstepping its power and violating the Fourteenth Amendment rights of homosexual couples to make intimate, personal decisions in regards to the nature of their relationship. In the final ruling of Lawrence v. Texas, the Court stated that Texas’s anti-sodomy law was an unconstitutional intrusion into the privacy of citizens because the law sought “to control a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals” and that “the intimacies of physical relationships     . . . are a form of ‘liberty’ protected by due process” (Lawrence v. Texas). Thus, any act of Congress denying the right of individuals to make a choice as personal as marriage violates the principles which protect American citizens from unwarranted intrusion into private personal affairs protected by the Due Process Clause of the Fourteenth Amendment.

            Also within the Fourteenth Amendment is the Equal Protection Clause, a phrase which prohibits the government from applying laws unfairly to certain groups. In an opinion written by Supreme Court Justice Kennedy in regard to a law seeking to deny homosexuals certain rights, Kennedy defined the principle of equal protection:

Central both to the idea of the rule of law and to our own Constitution’s guarantee of equal protection is the principle that government and each of its parts remain open on impartial terms to all who seek its assistance. . . Respect for this principle explains why laws singling out a certain class of citizens for disfavored legal status or general hardships are rare. A law declaring that in general it shall be more difficult for one group of citizens than for all others to seek aid from the government is itself a denial of equal protection of the laws in the most literal sense. (“Barring” 2)

The Equal Protection Clause requires that any law that Congress passes be fair and reasonable and that it does not favor any specific group over another. In enacting legislation that would prohibit same-sex couples from attaining marriage licenses, Congress would be singling out homosexuals as a specific group and denying them rights that their heterosexual counterparts have free access to. Among the rights of married couples are qualifying for pension and Social Security benefits, joint possession of property, filing joint tax returns, and receiving veteran’s benefits based on a partner’s military service (“Prohibitions” 1). In denying marriage licenses to same-sex couples, a specific group is being denied rights on the sole basis that their lifestyle choice is in conflict with the moral opinions of the majority. Thus, Congress would be violating the Equal Protection Clause of the Fourteenth Amendment by denying an identifiable group rights available to other groups on the sole basis of moral values.

            In Lawrence v. Texas, Texas defended their anti-sodomy law by claiming that the law merely banned the act of homosexuality, not the individuals themselves. However, a concurring opinion written by Justice O’Connor found that while the law itself did not criminalize homosexuals, by criminalizing the act of homosexuality, the implication is that homosexuals are criminals:

When a State makes homosexual conduct criminal, and not “deviate sexual intercourse” committed by persons of different sexes, “that declaration in and of itself is an invitation to subject homosexual persons to discrimination both in the public and in the private spheres.” (Lawrence v. Texas)

By passing a piece of legislation which would define marriage as between a man and a woman, Congress would be stating that those who seek a form of marriage other than the heterosexual definition of marriage would be in effect breaking the law. Such laws would isolate homosexuals as a class inferior to others, denying homosexuals specific rights solely based on their personal decisions. This is a direct violation of the Equal Protection Clause of the Fourteenth Amendment,

            Opponents of same-sex marriage often defend heterosexual marriage as the traditional form of marriage, a sacred institution that has stood since before laws regarding marriage were written. In many faith traditions, marriage is a very sacred and holy covenant, involving the entirety of an individual being committed to another. The fears of those coming from such traditions are understandable, but such a view cannot be taken into account in the debate over the legality of civil marriage. In the case of same-sex marriage, religious perspectives and tradition are not legitimate reasons for the state to deny individuals their constitutional right to marriage.             In Lawrence v. Texas, the Court states: “the fact a State’s governing majority has traditionally viewed a particular practice as immoral is not sufficient reason for upholding a law prohibiting a practice” (Lawrence v. Texas). In the various religious traditions within American society, marriage may indeed be a sacred institution in which a man and a woman join in holy matrimony, in which case marriage may legitimately be defined as strictly heterosexual. Allowing same-sex couples to attain legal marriage licenses would not impose same-sex marriage upon religious institutions opposed to homosexuality. Rather, allowing same-sex marriages would allow the government to properly protect the rights of all its citizens, whether or not the views or lifestyle of the individual citizen coincides with the moral views of the majority. As the Court stated in Planned Parenthood v. Casey, “our obligation is to define the liberty of all, not to mandate our own moral code” (Planned Parenthood v. Casey). The purpose of allowing same-sex marriage is to protect the liberties of all American citizens, regardless of what their religious or moral opinions may be.

In the eyes of the state, a marriage license is a legal contract between two individuals, free of religious implications. H. Moody, minister emeritus from Judson Memorial Church in New York City writes on the dual nature of marriage in the eyes of the law:

It is important to understand the difference between the religious definition of marriage and the state’s secular and civil definition. The government’s interest is in a legal definition of marriage—a social and voluntary contract between a man and woman in order to protect money, property and children. Marriage is a civil union without benefit of clergy or religious definition. (Moody 2)

In most cases, a couple may have a marriage ceremony officiated by a judge or city official in a court house or city hall and receive a legal marriage license from the state, without any religious reference. While marriage may have a religious nature, in the eyes of the state no religion is necessary in attaining a marriage license. In Lawrence v. Texas, Justice O’Connor stated: “A law branding one class of persons as criminal solely based on the State’s moral disapproval of that class . . . runs contrary to the values of the Constitution and the Equal Protection Clause” (Lawrence v. Texas). Thus, supporting a ban on same-sex marriage on the basis that it is the traditional, moral position does not hold up in the eyes of the law.

            Same-sex couples have the Constitutional right as citizens of the United States to have full marital rights under the Fourteenth Amendment to the Constitution. In denying same-sex couples this right, state and national governments are superseding the rights of the citizens and passing legislation based only on the morality of the majority in power, motivation which the Court has declared in violation of Fourteenth Amendment rights. By marital status to same-sex couples, the United States government would be upholding the freedoms which it was intended to protect. Any attempt at defining marriage as being strictly heterosexual is inherently unconstitutional and must not be allowed to become national or state law. The government must protect the constitutional rights of its citizens, even if that means accepting a choice such as homosexuality which contradicts the moral beliefs of a majority of American citizens. In doing so, the government would be protecting the rights of all minority groups, ensuring that the United States would continue to be a country where the rights of all people are respected and protected under the Constitution. 

December 7, 2007

3 thoughts on “The Argument For…”

  1. Alright-then polygamists are next-what they do in private….come on Jonathan! You can quote all you want, but “marriage” is between a man and a woman!


    Wandering thoughts, but each “paragraph” has something to think about. Christians need thinkers; the challenge to you would be to fill that void. To do so, it is imperative that you develop a strong Christian worldview. That comes with time/age . . . with reading . . . with reflecting . . . with sifting and sorting . . .

    ANYHOW . . .

    Who ordained government? God did, after the Flood. Who ordained marriage? God did, when He created Eve as a completer for Adam.

    What we need to remember is that unalienable/inalienable rights are those which God gave to man at the Creation. They belong to each of us by virtue of the fact that we are made in God’s image, and are therefore endowed with certain attributes, powers, freedoms, . . . as part of His essence. These rights are thus inseparable — or unalienable — from each person individually and from the human race as a whole. They are a gift from the Creator, and it is impossible for government to alter or nullify mankind’s divine inheritance.

    John Adams said, “Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other.” [Because America is increasingly neither, that is why there are such problems with interpreting our Constitution. This leads to perceived justification for arguments, such as what you make in your piece. This is only one area where the problem exists. Another is abortion.]

    “Rights” is a term that is so misused and abused in society today. Bottom line — we, as humans, have no rights. What rights we have we have because God has chosen to give us them. America wants to forget that. The result is that America is on track to self-destruction. What has kept us in the past a strong nation, leader in the world, was the fact that our government, unlike others, was established on the foundation of biblical law — like it or not. God blessed us. The moral decline has led to an increasingly fast-moving spiral downward. (Even the Bible, in Isaiah warns those who call evil good and good evil.) God seems to be lifting His hand of blessing as a result.

    All governments legislate morality all the time. [That was a point you made — should the government be legislating morality?] Laws against theft, murder, drug use, and prostitution, to list just a few, all impose morality on the public. All law, like it or not, arises from a view of morality and is rooted in religious values. This is both unavoidable and indispensable. John Adams once said: “It is religion and morality alone which can establish the principles upon which freedom can securely stand.”

    The Judeao-Christian foundation upon which our Constitution was built has crumbled. That began when schools sent God out their doors. (That was based on the misinterpretation by the Supreme Court of the “Separation of Church and State” clause.)

    So, yes, you could make the argument that we should recognize the “rights” of gays to marry and enjoy the material benefits that come with that, based on a growing, secular worldview of our country’s heritage and the writing of its Constitution; however, it is also not unconstitutional for Americans to protest legitimizing those things which in the bigger picture, are destructive. We end up being a notable civilization of the past — like Greece and Rome (and generally for many of the same reasons we fall).

  3. I have a couple comments, mainly in refutation of the argument of the article.

    1) The biggest flaw in the reasoning behind the article is that the author believes that homosexuals are a protected group under the Constitution. My problem with that conclusion is that homosexuals are defined by their behavior, nothing else. They aren’t a gender, nor a particular skin color, nor a particular race. There is still no evidence that homosexuality is inborn or genetic. The best research shows that it is a the result of a complicated set of developmental influences, but that still doesn’t qualify it as anything other than a set of behaviors.

    2) The author seems to be setting forth the argument that “anything goes” in the pursuit of “life, liberty, and happiness.” The same reasoning could be applied to justify any number of other behaviors — illegal drug use, excessive alcohol consumption, pedophilia, polygamy, prostitution, etc. In fact, the case that he sites (Lawrence vs Texas) has already been used as precedent to fight for the legality of some of these same things in other court cases. Where do we draw the line? If any two consenting adults should be able to enter into a legally protected and sanctioned relationship (marriage), then why not three, or four, or five? It’s something of a trite saying, but that’s a very slippery slope.

    3) Related to number 2, the government has the right and the responsibility to LIMIT our freedoms, in order to protect the governed. There are myriad examples we could put in here — drinking and driving, shooting my gun randomly in the street, shouting “Fire” in a crowded room, stealing (try that defense — Your honor, I wasn’t happy without that $3000 mink coat, but I can’t afford it, so that’s why I broke the showroom window and stole it. Don’t I have the right to happiness?). Well, the constitution gives us the unalienable right to the pursuit of happiness, but not happiness itself.

    4) I won’t detail them here, but there are a number of natural and societal reasons apart from the Bible’s condemnation of homosexuality that justify the government sanctioning hetero marriage and not homosexual “marriage.” Any efforts to redefine marriage destroy the institution – and ultimately – civil and healthy society.

    5) There is a significant difference between allowing homosexual couples to “make intimate personal decisions in regard to the nature of their relationship” and providing legal sanction and recognition to those relationships. Lawrence vs Texas declares that the anti-sodomy laws sought to control those personal decisions are unconstitutional. The author of the paper then makes the leap to conclude that this must mean that the government has to permit homosexual marriage. Ridiculous. Again, allowing the behavior is one thing, sanctioning it by giving homosexuals the right to “marry” is quite another. Personally, if they want to make that lifestyle choice, that’s up to them. However, I do not think that they should demand that the government legitimize it by giving it legal standing and support in our country.

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