breaking down the constitutionality of the constitution

Same-Sex Marriage as an Individual's Right

Background

The fight to legalize same-sex marriage by gay rights activists did not begin until the 1980’s in the United States. It was not until November of 2003 that the Massachusetts Supreme Court ruled for the first time ever that barring gays and lesbians from marrying violated the State Constitution. The Massachusetts Chief Justice concluded that to “deny the protections, benefits, and obligations conferred by civil marriage” to same-sex couples would be unconstitutional because it denies them “the dignity and equality of all individuals” and makes them “second-class citizens” (The American Gay Rights Movement). To this day, the decision of whether same-sex marriage is recognized is left up to the state. Because of this, same-sex couples have been left on an array of labels from state to state ranging from domestic partnerships, civil unions, and, civil marriage to limited or no benefits and/or recognition.

Though there is heavy controversy on this topic, especially after recent elections, the Supreme Court has accepted marriage as a civil, fundamental right (Pull). Several court cases throughout history have described it as a significant need for a society to flourish and essential for the survival of a community. Chief Justice Marshall described it as a “vital social institution” and as “central to the lives of individuals and the welfare of a community, our laws assiduously protect the individual’s right to marry against undue government incursion.” Recently the Iowa Supreme Court ruled, “Civil marriage must be judged under our constitutional standards of equal protection and not under religious doctrines or the religious views of individuals" (Quin). Same-sex marriage is not a decision that should be left to the religious right; the issue does not lie in which church is right and which is wrong. Marriage in itself is a legal contract that allows dedicated couples a stable foundation in which to begin a family. It is a package deal that comes with insurance and medical benefits, inheritance rights, social security, and tax benefits. Unlike in elections, in the courts same-sex marriage issues have emerged somewhat victoriously but because sexuality is a fledgeling category to be brought to judges, unlike race or gender, they have little history to fall back on or landmark court decisions to draw from.

Factual Overview

Outside of the courts and in the public, homosexuality in itself is very controversial. This labeled “alternative” lifestyle is often look down upon by the religious right and considered an abomination in the eyes of God. The term “homosexual” is juxtaposed to a life of sin and immorality in several churches. Though this country is supposed to be free of an established religion, it is also a democracy where majority rules. This majority often links its political views with its moral views, which is not always unfortunate, but this leaves the minority LGBT community to fend for themselves.

Same-sex marriage is a controversy involving history, religion, and morality. Historically speaking, marriage has always been an institution that unites two people of the opposite sex. The rejection of unorthodox views regarding sexual orientation and the institution of marriage provided an outline for rules regarding the right to marry (Pull). Religiously, marriage is a sacred union between one man and one woman. Those opposed to same-sex marriage argue that homosexuality is immoral and allowing homosexuals to marry would destroy the sanctity of marriage. They also worry that by legalizing same-sex marriage, children will be exposed to this abnormal lifestyle at school when learning about marriage and family life.

Those in support of same-sex marriage, argue that marriage is a civil right and claim that banning it is an act of homophobia and discrimination. To limit the institution of marriage to only heterosexuals is “unfair to same-sex couples and potentially detrimental to the fiscal interests of the state and its economic institutions to reserve the designation of marriage solely for opposite-sex couples” (In Re Marriage Cases, 5). They also believe that marriage goes beyond religious beliefs and it is necessary for same-sex couples to have the same legal rights as heterosexual couples. Marriage is not an institution in need of protection from same-sex couples, like the Defence of Marriage Act boldly states, it is a civil right that needs to be made open to all couples willing to make this commitment to each other.

On the ballot, same-sex marriage has experienced 31 losses in the present gay movement towards marriage equality (Goodnough). When it comes to popular vote, it is obvious that though homosexuality is more culturally accepted today, the majority still wishes to uphold traditional marriage. Five states, Massachusetts, Connecticut, Iowa, New Hampshire and Vermont, have legalized same-sex marriage, but only through court rulings and legislative action (Goodnough). State legislatures had been viewed as new allies in the fight for same-sex marriage after lawmakers in Maine, Vermont and New Hampshire approved such bills this year (Goodnough).

Legal Overview

Arguments legally supporting same-sex marriage have included the Equal Protection Clause, the Due Process Clause, the Privilege and Immunities Clause, and the Full Faith and Credit Clause. Those opposing same-sex marriage argue the history of marriage, each heterosexual couple’s ability to procreate, and the simple fact that there is normalcy in heterosexuality to limit the institution of marriage to straight couples. To this day, there is no one national law regarding marriage: it is still left up to each individual state to decide. Scattered through out the country are few same-sex married couples, a number of same-sex couples in domestic partnerships and others in civil unions, and the other same-sex couples waiting for marriage equality.

In Goodridge v. Department of Public Health in Massachusetts (2003), the Court held sexual orientation was a non-suspect class and subject to the Rational Basis Test. In this case, there was no rational basis to deny the right of marriage to same-sex couples on the grounds of Due Process and Equal Protection.

The first same-sex marriage issue taken to court was in 1971 in Singer v. Hara in Washington. Here, two men were denied a marriage license. In the Washington Court of Appeals, they argued that prohibiting same-sex marriage violated the Equal Rights Amendment of the Washington Constitution because it was based on gender. The Court ruled against them in 1974 because of the historic definition of marriage which specifically left the institution of marriage for heterosexual relationships. Washington argued that there was no violation because both men and women were not allowed to marry members of the same sex. The court used Rational Basis here because it found that sexual orientation was not a suspect class.

On the other hand, two later cases from Washington ruled in favor of same-sex marriage for different reasons. In Anderson v. Sims (2004), eight same-sex couples filed suit after being denied marriage licenses because of the State’s Defense of Marriage Act. The defendants argued that preserving marriage as a heterosexual union was a legitimate state interest well met by the state. The court held that the plaintiffs had a fundamental right to marry and that prohibiting same-sex marriage neither serves a compelling interest nor rationally relates to a legitimate state interest. This ruling was appealed. Then in Castle v. Washington (2004), American Civil Liberties Union again filed suit on behalf of eleven gay couples who were not allowed to marry arguing that it violated the State Constitution.This Court ruled that sexual orientation was a suspect class for purposes of analyzing Washington’s Constitution and therefore subject to strict scrutiny. The Court held that Washington’s same-sex marriage ban was a violation of the Privilege and Immunities Clause of the State Constitution. This decision was also appealed.

Both cases were consolidated and became Anderson v. King County. In this case, the Defense of Marriage Act was upheld. Justice Barbara Madison wrote, “DOMA is constitutional because the legislature was entitled to believe that limiting marriage to opposite-sex couples furthers procreation, essential to the survival of the human race, and furthers the well-being of children by encouraging families where children are reared in homes headed by the children’s biological parents.” In the dissent, Justice Mary Fairhurst questioned, “Would giving same-sex couples the same right that opposite-sex couples enjoy injure the state’s interest in procreation and healthy child rearing?”.

In California, this issue has been oscillating between yes and no for the last ten years. It began with Proposition 22 in 2000 which left marriage as only between a man and a woman. The city of San Francisco responded to this same-sex marriage ban by issuing gay couples marriage licenses anyway. In Lockyer v. City and County of San Francisco, a response to the illicit issuing of marriage license to same-sex couples, the court held that the city had acted unlawfully but had the option of challenging the present marriage laws. This led to the San Francisco Superior Court’s 4-3 ruling that: California’s Constitution, in fact, recognized same-sex marriage as a fundamental right (Doskow). Six months later, Proposition 8 passed by a slim majority (52 to 48) and overturned the court’s decision. Gay rights advocates attempted to stop the imposition of this ban in court where they were to decide what was to happen with the 18,000 same-sex couples who got married while it was allowed and whether Proposition 8 would be overturned or not. The California Supreme Court decided that the same-sex couples who had gotten married would stay married and Proposition 8 would not be overturned because the court cannot simply overturn the will of the majority. This ruling was very disappointing. They managed to divide the people of California into three classes: the privileged heterosexuals with the right to marry, the fortunate same-sex couples who were granted the right to stay married, and the rest of the LGBT community left waiting for marriage equality. On the same date that California’s Proposition 8 passed on the ballot, Arizona and Florida also voted to impose same-sex marriage bans within the state (The Gay Rights Movement).

Analysis

In order to defend same-sex couples’s right to marriage, plaintiffs used several different clauses of the Bill of Rights, many of which lie in section 1 of the 14th Amendment: “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 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.” They also used Article IV Section I of the Constitution: “Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State.”

Most prominent in equality cases is the Equal Protection Clause. The language used is broad enough to almost be expected to simply mean equal protection for everyone, but it has never been interpreted this way. Classifications were created to decide if and to what extend the Equal Protection Clause applied. These classifications are determined by seeing if a trait is immutable or not. For example, race is considered immutable and is therefore a suspect class subject to strict scrutiny, while gender though biologically immutable is thought to be socially constructed and is therefore a semi-suspect class subject to intermediate scrutiny. Sexual orientation on the other hand really depends on the eye of the beholder, and this is seen in court cases where it is sometimes non-suspect and in others suspect. The Courts are wrong in both cases. Sexual orientations should be classified alongside gender as semi-suspect because there is yet to be biological proof that it is truly immutable but it is an important enough characteristic of a person’s life which contributes to their everyday being. It is a trait that deserves to be subject to more than mere rational basis but not yet proven immutable to the case of being subject to strict scrutiny.

The Full Faith and Credit Clause of the Constitution is also a legitimate clause backing same-sex-marriage that could have been used in the movement toward marriage equality if DOMA had not specifically made marriage licenses an exception. DOMA is thought to be unconstitutional by some because it is used to override text in the Constitution.

When it comes to using the history and tradition behind definition of marriage to leave it as a heterosexual institution, it must be said that at one point interracial marriages were also illegal. If it were left to uphold the history of marriage, there would still be laws regarding interracial marriages and marriage between classes; and women would still be considered property belonging to men with no legal rights within a marriage.

Basing who can and cannot marry on the couple’s capability to procreate is also illogical. If this is a true reason to deny marriage licenses, it should be fairly applied to everyone; just like in the court case Singer v. Hara, where the court decided it was not unconstitutional because the discrimination applied to both men and women. With this rationale, same-sex couples, infertile couples, and the elderly should also be denied marriage licenses.

The arguments solely based on religion or God’s Will should not even be considered. Though it is true that many state and federal laws are based on Judeo-Christian backgrounds, there is a separation of church and state in the Constitution’s Establishment Clause. It is unconstitutional to deny anybody their civil rights solely on the grounds of religion.

Conclusion

Though the Supreme Court has come to accept marriage as a fundamental right, the boundaries of marriage are still left up to each individual state to decide. Each state decides what marriages are legit and which are allowed some, if any, legal recognition (Pull). To this day, the gay marriage equality movement has met several losses on the ballots in elections across the nation. Although these same-sex marriage bans were democratically decided, it is still unfair. It is unfair to allow a majority the right to take away the rights of a minority.

Leaving marriage up to each state to decide sounds like a good idea, because it takes this power away from the federal government and gives it to the states. This allows each state to make laws that better suit their constituents because the legislature is allowed to focus on a smaller population. Though it seems like the democratic thing to do, leaving it up to each individual state to decide whether they will legalize same-sex marriage or not is not only irrational, but it is a door opening to chaos over the institution of marriage. This is seen today: a handful of states have legalized gay marriage, several others have bans against it, and masses of same-sex couples and gay rights advocates are working harder than ever in each state to take their cases to court to overturn the discriminatory laws imposed upon them and their families. The Supreme Court and state legislature need to realize that just like during the times of the Civil Rights Movement, separate is not equal. Civil unions and domestic partnerships do not equate to a civil marriage.

a look at natural law: justifying murder.

This is a concurring opinion to court case Regina v. Dudley & Stephens

using Natural Law Theory

On July 5, 1884, Captain Thomas Dudley, Edward Stephens, and Brooks, both able bodied seamen, and a seventeen year old cabin boy, Richard Parker, were aboard a yacht 1600 miles into the sea. A storm forced them onto an open boat where they were stranded for twenty-five days. While aboard they had no fresh water and nothing but two tins of turnips to eat, until the fourth day when they feasted on a small turtle; they lived on its remains until the twelfth day. For eight days after they had no food and scarce rain water to drink. On the eighteenth day, Stephens and Dudley spoke with Brooks about the need to sacrifice someone for there to be a chance for the others to live. Brooks refused to take part. The cabin, who had been boy targeted, at this point lay helpless after consuming seawater and spending days with no food. On the 25th of July, with Stephens’ consent, Dudley put a knife to the boy’s throat and killed him. All three men fed upon his flesh and blood for the following four days. On the fourth day after the act was committed they were rescued and committed to trial for murder at Exeter.

The issues at hand are: whether cases of extreme necessity are enough to justify murder; and in these extreme cases should self-sacrifice or self-preservation prevail. The prisoners, Stephens and Dudley, argued that had they not sacrificed the boy, who was the most likely to die of the three, they would not have survived; and that at the time of the killing there was no reasonable hope for salvation. The jurors found there to be no greater necessity to kill the boy over the other men. The court held that despite the extremities of the situation, Dudley and Stephens were guilty of murder.

Because of the extremities within this case, it is difficult to see the right and wrong in it. There are few things that need to be determined: what exactly is murder? How can it, if ever, be justified? If upholding the intent to preserve life is sought out by the court, whose life is it that must be preserved? What defines a case of true necessity? And even if this necessity is true, it is enough to justify the killing of an innocent boy?

Despite the complexity behind all these questions, the truth is there it must simply be discovered. I am not deciding the outcome of this case because it is already decided. I am simply aiding in the emergence of the truth behind this altercation, for which there is need of nothing but reason to do so. The truth is there, one must just be trained to be able to find it in cases with such extremities as this.

To begin, the definition of murder must be made clear. Murder is the unjustified taking of a human life. In itself this only further complicates the situation, for who is to decide if a murder is justifiable or not? Certain justifications include self-defense or the defense of a third party, necessity, and self-preservation. This is no case of self-defense. The boy was in a weakened state, posed no threat, and was in no position to defend himself.

On the contrary, he was completely vulnerable and therefore made a victim to this crime. The two men preyed on an innocent, helpless boy in order to selfishly preserve their own corpses. In terms of necessity, which these two claim is their defense, there really was no greater necessity in killing him over the others present. “Laws were made that in fear thereof human audacity might be held in check, that innocence might be safeguarded in the midst of wickedness, and that the dread of punishment might prevent the wicked from doing harm” (Aquinas, 70). The two men should have considered the consequences of their actions before committing the crime.

A true necessary cause would be a situation where there really was no other choice but to kill the boy, but there were other choices, here they merely failed to consider them. Altruistic deeds of self-sacrifice were an option and taking this option would have spared these men their conviction.

Even at its most extreme, if one were to consider Parker’s killing a true necessity for the others’ well-being, this does not make it a justifiable murder. This justification simply opens the door to legitimizing other acts of immoral behavior. This would make it just for those in poverty to steal and it would justify other acts of deceit or tricky done in order to better oneself or one’s family. Though it may seem convenient for the individual it does not serve the common good of a society and is therefore considered to be unreasonable.

“Actions are indeed concerned with particular matters: but those particular matters are referable to the common good, not as to a common genus or species but as to a common final cause” (Aquinas, 59). Court decisions are supposed to provide the public with examples of how to live (Aristotle). What standards of morality and justice would be set, should this gruesome act of murder go unpunished? This would leave an ambiguous distinction between right and wrong or moral and immoral behavior. It would allow any claim of necessity a chance of justification, and this could be the cause to future disastrous behaviors.

Cases of true necessity are those where there is really no other option. Situations where it really is either the life of one or the other, for instance if two bodies were dependent on one lifeline, when it could only withstand the weight of one: here there is true need of making this decision. One must die in order for the other to live. Both are doomed to die if the line were to snap, and it can be seen that it truly is about to break. There is no doubt in this scenario or room for other possibilities, unlike the assumption of Parker’s life expectancy in this case of murder.

While deciding whose life to sacrifice, the men came up with an idea of drawing lots to see who would be killed for the rest to survive. If the group had actually gone through with this choice, there may have been some support in their favor. It would not seem like those in better health were taking advantage of the sick and needy. It would have been a morbid drawing, but fair for all those in the group. This did not occur, so this does not apply to this situation.

Dudley and Stephens argued Parker had no family to return home to or nobody depending on his homecoming and that of the four men Parker was the most likely to die because of his weakened condition. On the contrary, one could argue the latter and say that it is because of his youth and lack of life experiences that he should have been spared and given the chance to fulfill his life expectancy. The others on board were full grown and should have been more considerate and behaved more humanely when deciding the fate of Parker.

Also, his weakened state called for acts of compassion. It should not have been seen as an opportunity to take advantage of his underprivileged condition. In any other case, if a man in full health were to murder a sick, disabled minor, there would be no controversy. It would simply be seen as murder, and this is the case here. The murder of this boy was unnecessary and wrong and should be dealt with accordingly. “One class of just actions consists of those acts, in accordance with any virtue, which are ordained by law… Further when a man voluntarily does an injury (not in retaliation) that is against the law, he commits injustice” (Aristotle, 26).

Dudley and Stephens took such extreme courses of action under the assumption there was no hope of being rescued. This is a contradiction within itself and thus a faulty argument. If there truly was no hope in being rescued, then there really was no necessity in killing Parker to live longer. With this assumption, all they did was prolong their own suffering and eventual demise. This is unreasonable, masochistic, and erroneous. Also, the two men said because of Parker’s state of being he was doomed to die eventually. This would be a legitimate substantiation, if it were possible to know exactly how long it was before his death. In this case, if they knew his death was truly pending anyway, sacrificing anyone else would simply double the amount of casualties. Here, there would have been true necessity in order to save everyone else. The killing of the boy would then have been both reasonable and for the greater good, but this is impossible to know for certain and is therefore not applicable.

Furthermore, the court has an obligation to protect and this is an absolute function (Hobbes). This brings about a conundrum for this case where the act of killing Parker was intended to save the others, yet the act of killing in itself is the very opposite of preserving the life of the boy. This information leads to neither the support nor condemnation of the two accused, so other obligations must be considered.

Laws are intended to lead to proper virtue, and since virtue is that which makes its subject good, it follows that the proper effect of law is to make those to whom it is given, good (Aquinas, 64). In this situation, the death of Parker in no way makes Dudley and Stephens good men. Their acts possess no characteristics of a good person or of virtuous intent. “The law directs man in his actions. But human actions are concerned with particular matters. Therefore the law is directed to some particular good” (Aquinas, 58). They acted upon desperation with no consideration for the well-being of the boy and with intents to only better their situation.

There is a body of universal values and principles which must be upheld. This makes the right true regardless of where you are, who else is in your company, or the situation you are in. In this case we have two conflicting values at hand: self-sacrifice and self-preservation. But there are also moral obligations that should be considered here. Amongst the duties and responsibilities of the captain of the ship, did Dudley not have a priority of watching over those aboard his ship? Should he not have volunteered to sacrifice himself to save the others instead of taking the life of an innocent boy? Did anybody on board even give thought to a scenario where self fulfillment would occur in the act of helping the others?

Despite the extremities of the case and the claims of necessity, reason, morality, and conscience should have played a major role when these men chose their courses of action.

Self-denial is the highest virtue, and is one that even the most noble of men would have a difficult time achieving. Here, this is exactly what is proven: man in the most unimaginable conditions is weak and drops the course of virtuous deeds and instead pursues a path of self-indulgence, to the extent of drinking the blood of his neighbor for his own survival. Acts of cannibalism in any other situation are unacceptable, and here in this case as well. These men were put through a test of temptation and strength, and failed. Men are thought to be reasonable creatures and are expected to exercise the will to do the right thing and this exercise is a result of the presence of mind and conscience (Cicero, 44). Dudley and Stephens did not. Survival was all they could think of and even though it was not an unanimous or fair decision to murder the boy, they did it.

Exactly what is to be expected of the average man under such horrendous conditions? They were losing hope of survival, dreary from loss of nutrition, in the brink of delirium because of the lack of water, experiencing the emergence of their true animal instinct. Still, standards of perfection are set for the decorum of a man in these conditions. He is still expected to act civil and virtuously. “By reason, by which a man is forbidden to do, that, which is destructive of life or taketh away the means of preserving the same” (Hobbes, 110). Unlike Dudley and Stephens, who found a solution at the expense of another’s demise and took it. They should now suffer the consequences of their course of action.

Because they have a conscience, both men should have been able to distinguish what was right from wrong. Though there is conflict with what appears to the senses and what really is. In this case, Dudley and Stephens did not see things as they really were. They did not see the sick boy as a person in need of help. They saw what appeared to their senses: a means to the end of their hunger. They looked past ailing boy and saw a solution to cease their own suffering.

Humans are unable to get away from thinking morally because these values are implanted in their independent conscience. It is an innate instinct to always consider the consequences and the right in wrong of the situations in which they find themselves. This further establishes that they should have been able to act accordingly to what is expected from mankind. In nature, mankind is superior to other animals and it is because of this fact that it makes sense to expect them to behave with more self-control and not indulge in an animal’s instincts of survival.

This court’s ruling is just and therefore should be upheld. This assures no possibility in the future of the public assuming they could utilize the excuse of necessity in order to get away with murder, or any other immoral. These cruel acts of murdering a young boy in poor health, choosing self-preservation over self-sacrifice, and the monstrous act of cannibalism will not go unpunished and will never be justifiable in this civilized nation. It is this courts intents to make certain of this.

Altruistic intents will always be paramount to self-preservation within the walls of the court. The court is asking men to reach standards of faultlessness in behavior in the worse probable scenario, but merely in order to prevent cases which are not as severe from using the same excuse successfully. These are standards that nobody may ever truly reach, but still reasonable by means of virtue, conscious, and morality. These characteristics are embedded in the conscience of each person, and therefore asking for them to be upheld is not unreasonable. Again, it may be the most difficult task imaginable to succeed in doing so, but it is not impossible. It is because of this that all holding in this court will stay as decided and not be undermined.