One of the most contentious issues of our day is on the issue of same-sex marriage. On one hand, there are those who wish to see such a thing banned outright, even proposing to have a constitutional amendment to forever forbid such an institution, arguing that "traditional" marriage should be kept as is. On the other hand, there are those who see marriage as an issue of basic equality among people. I personally fall into this camp. Let's explore this issue a little bit.
What are the essential arguments against same-sex marriage? As stated earlier, the protection of a "traditional" institution seems to be of paramount concern. Furthermore, one could say that the primary purpose of marriage is to propagate children. Finally, it is often argued that the majority of Americans are in fact opposed to same-sex marriage, and therefore the United States should ban it in accordance with the will of the majority. Every one of these arguments have major flaws, and I will explain why.
As for the "traditional" marriage argument: what is traditional? Does traditional marriage mean that marriage is to exist as it did 50 years ago? 100 years ago? 1000 years ago? Traditional in which culture? American? European? Chinese? Middle Eastern? What does traditional mean? Marriage, and indeed all human institutions have constantly evolved with human thought. Traditionally, slavery has existed in the Americas, but it no longer does. Why is that? It is fundamentally wrong to deny human beings basic rights. I don't particularly want to compare the denial of gay rights to an institution as abhorrent as slavery, but it does illustrate a point. Human thought changes based on notions of equality and freedom.
Indeed, the institution of marriage itself has evolved. Until 1967, interracial marriage was illegal in some US states, including my home state of Virginia. Under Virginia's Racial Integrity Act of 1924, it was illegal for people of different races to wed. However in 1967, the US Supreme Court ruled unanimously in Loving v. Virginia, 388 U.S. 1 (1967) that this law violated the 14th Amendment of the US Constitution which says that "No state shall...deny to any person within its jurisdiction the equal protection of the laws."
In the Court's decision, Chief Justice Earl Warren wrote:
Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival.... To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discrimination. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.
This case clearly established that even marriage is an evolving institution, and that discrimination does not belong. The last sentence of Chief Justice Warren's quote is the most important. Indeed, many of the legal arguments against same-sex marriage can be seen in this case. There is really no reason to say that homosexuality can be constitutionally treated any differently from race under the 14th Amendment.
Next, the argument that marriage is intended to propagate children is a false one. While it is true that most marriages produce children, they do not have to. Indeed, many heterosexual couples are themselves incapable of producing children. Should heterosexual couples be compelled to take fertility tests in order to get married? If marriage is exclusively for child production, then that is what we need.
Finally, the majority of Americans oppose same-sex marriage. That may be true, but why is that relevant when talking about an issue of basic rights? Is it possible that an opinion poll taken of the people of Topeka, Kansas in 1954 at the time of the Supreme Court's unanimous decision in Brown v. Board of Education, 347 U.S. 483 (1954) might have revealed that the majority were opposed to school integration? It may well have. The judiciary is an undemocratic institution for a reason. They exist in a world that is separate from James Madison's "passions of the majority" in order to protect the rights of the minority. While the majority is an important idea in our society, it is not the be all and end all. When the majority violates the minority's basic rights, it is up to the courts to step in.
When considering the question of same-sex marriage, ask yourself whether banning same sex marriage meets even the loose standard of judicial scrutiny know as Rational Basis Review. Rational Basis Review, as established by the US Supreme Court in United States v. Carolene Products Company, 304 U.S. 144 (1938) says that an act of government must be rationally related to a legitimate state interest. How does banning same-sex marriage rationally related to any legitimate state interest? Think about it.
That is all, for now.
