A Violation Of Constitutional Rights?

For most of American history, the subject of homosexuality has been treated as a taboo. Today, more and more gays and lesbians have come out in the open and expressed their sexuality freely. Recognizably, people too have changed their attitudes towards homosexuals. Even the concept of homosexuality which used to be considered a psychological abnormality was deleted from the list and is now classified as a normal state.

Homosexuals went along with the drive of women against gender discrimination. But despite all these developments, the homosexuals’ clamor for rights and protection has become stronger. On the other end, religious and civic groups pressure the government to pass laws to protect traditional values on marriage and family and bar the proliferation of homosexual, gay or same-sex marriages that have started to gain acceptance in some parts of the world and in a number of States in the country.

In 1996, the Defense of Marriage Act was passed that changed the definition of marriage and limited the legality of gay marriages within the states that recognized them. This constitutes a ban on gay marriages. This gave rise to the controversial issue whether the government’s move to ban gay marriages is a violation of constitutional rights. This paper presents factual bases to support of the position that gay marriage ban is a violation of constitutional rights.

It also presents arguments for and against this position. Marriage Defined To come up with a sound basis for discussion, a random search for meanings of the word “marriage” was done by this researcher. This search revealed conflicting versions. Encarta encyclopedia referred to marriage as “a legally recognized relationship between two people who intend to live together as sexual and domestic partners” Columbia encyclopedia refers to it as, “a socially sanctioned union that reproduces the family”.

For Wikipedia Encyclopedia, “marriage is an interpersonal relationship with governmental, social, or religious recognition, usually intimate and sexual, and often created as a contract, or through civil process” while for Thesaurus, it is “the state of being united as husband and wife” (Answers. com, n. d. ). Some of these definitions were revised to give due consideration to same-sex marriages being recognized in other countries and states so that the use of the distinction of the “man and woman” or the use of the “opposite sex” was avoided.

In contrast to this, the United States government passed a bill to change the definition of “marriage” through the Defense of Marriage Act as stated in Chapter 1 Section 7: “In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.

”(1996). This amendment to the definition was made in support of the Defense of Marriage Act that allowed States not to recognize same-sex marriage even if these were allowed in other States within in the country.

To be exact, the DOMA dictates, “No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship. (Defense of Marriage Act, 1996) The federal government recognizes marriage only between a man and a woman and puts a restriction on those States that legalize same-sex marriages or civil unions.

This is what constitutes the ban on gay marriages, an issue that is strongly being contested by human rights advocates especially by gay and lesbian organized groups. Is the ban on gay marriages a violation of constitutional rights? Constitutional Rights Section 1 of the 14th Amendment declares that, “all persons born or naturalized in the United States, and subject to the jurisdiction thereof are citizens of the United States and of the state wherein they reside.

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” (US Constitution, 1868). The government cannot make laws that limit the rights of any citizen or deny anybody of equal protection of the laws. Is the ban on gay marriages a violation of constitutional rights?

The Defense of Marriage Act of 1996 signed by former President Bill Clinton clearly defies the constitution, and made sure that only heterosexual marriages be recognized by the federal government. This law decided the fate of gay couples who hoped to have their relationships legalized. The Federal Amendment Act (FMA) is another attempt to justify the ban on gay marriages. It is a bill proposed as a constitutional amendment that would limit all marriages in the United States to be only between a man and a woman. This proposal ran short of a majority vote and until the present has not been ratified in Congress.

Gay couples then can still seek refuge in States that allow homosexual marriages. In the United States, there are currently three states that legally recognize same-sex marriages: Massachusetts, Connecticut and California. Vermont and New Jersey recognize civil unions or domestic partnerships. (Gay Rights, 2007) But their benefits and privileges as married couples will only be honored in those States and they are not entitled to any benefits provided at the federal level. For example, they may avail of tax incentives in their State income tax returns but not in their Federal income tax returns.

Arguments Supporting Gay Marriage Ban Supporters of the gay marriage ban expressed their views on reasons and bases why gay marriages should not be legalized. Robert H. Knight, director of cultural studies at the Family Research Council and an advocate of traditional family values, strongly supports the ban on gay marriages. “Homosexuality has never been considered morally good, and it is a quantum leap from ending slavery to saying that homosexuality must now be considered good, healthy and worthy of state-protected benefits” (Knight, 1998).

Homosexuals have every right equal to any citizen of the country: the right to vote, to property, etc. , but they cannot claim special treatments. Knight identified consequences of allowing gay marriages: that, businesses will be required to provide family health benefits equal to gay couples; that homosexual sex is a moral counterpart of marital love; that gay marriages will allow the adoption of children by gay couples. (Knight, 1998) Knight contends that monogamy among homosexuals is highly fictitious and that homosexuals find it difficult to stick with a single partner.

In cities where homosexual relationships are encouraged, HIV AIDS and other sexually transmitted diseases are soaring. It is because among homosexuals, dangerous sex is being practiced and that homosexual sex act is unhealthy by standard. (Knight, 1998) It is but proper for the government to ban gay unions so as not to allow the traditional values of marriage and family be eroded by such dangerous practices. Discussions on the issue of banning or legalizing gay marriages have commonly been focused on the adults asserting the exercise of their unrestricted, unconditional relationship rights equivalent to those enjoyed by heterosexual parents.

Lyn Wardle, a Professor of Law at Bringham Young University emphasized that the primary concern of laws is the well being of the children and the legalization or banning of homosexual marriages should be based upon the effects of parenting on children. There is a potential risk that children raised by homosexual parents will develop homosexual interests and behaviors. This was the results of several theoretical and empirical studies conducted on this subject.

A New York based study of children reared by lesbian mothers suggested the possibility that rearing by homosexual parents might influence the child’s sexual partner choice temporarily or permanently. The author reviewed three studies which have the same conclusion that homosexual parents appear to produce a disproportionate percentage of bisexual and homosexual children. (Wardle, 2003) This article emphasized the important role of parents to the children. “Boys and girls build their notion of their sex roles from experience with both sexes.

The loss of cross gender parenting may have severe emotional consequences for the child” (Wardle, 2003). For example, the absence of a father in a girl’s life may affect her attitude relating with men throughout her adult life. The author then warns that people should think very carefully before accepting the brave new world of homosexual parenting as an acceptable environment for our future generations (Wardle, 2003). There is an estimated three to five million (worldwide) gay and lesbian parents that have children in the context of homosexual relationships. This brought about seven million children from raised by gay parents.

Some 10,000 of these are families are established by lesbians in the United States (Zepezauer, 1997). Frank Zepezauer who wrote “Homosexual Partners Should Not Be Legally Recognized as Family Members” (1997) called for strong force to stop the spread of influence of heterosexual marriage and creation of an “alternative family”. Singles must be denied access to sperm banks, access to surrogate mother contracts; homosexual marriages, domestic partner statutes and support the exclusive authority of heterosexual marriage in every state in the country (Zepezauer, 1997).

Arguments Opposing Gay Marriage Ban Those who oppose the gay marriage ban have their responses to the contentions of the supporters of the ban. Banning gay marriage is plain and clear discrimination and is against the constitution. To ban means to deprive homosexuals and their partners the following privileges afforded to married couples only, to name a few, “Social Security… food stamps… disability payments… welfare… Medicare… Medicaid” (Mitchell n. d. ). And to think, they have been paying their hard-earned money to taxes all their lives without the benefits favoring them.

They are also deprived the protection of laws governing rights to inheritance, hospitalization and tax laws and similar benefits. (Mitchell n. d. ) Adult couples must be given the right to decide for themselves whether to marry or not, and to raise a family based on their feelings and commitment towards each other and not based on other people’s prejudices. Lesbian psychologist April Martin pointed out that “It is love – not biology – that makes a family. ” (Justice Denied 2002) In Seattle, Bradley H.

Bagshaw, an attorney for a gay couple suing for marriage states: “The essence of the right to marry is the right to choose whom you want to marry, this case begins and ends and is over when you find that marriage is a fundamental right” in his arguments for the judge (Mitchell n. d. ). Because it is unnatural does not necessarily mean it is immoral. Same sex marriage must not be banned solely because of tradition. (Justice Denied 2002) It is not true that children who have been raised by homosexual parents turn out to be bad.

In fact, according to a report from the American Academy of Pediatrics, children who grow up with gay or lesbian parent(s) “fair as well in emotional, cognitive, social and sexual functioning as do children whose parents are heterosexual. ” (Justice Denied 2002) Those who are against gay marriages assert that human beings were created in two sexes, male and female, different but designed for one another. Marriage is for procreation and the union of the husband and wife provides stability for the offspring. It is tradition that marriage is between a man and a woman and to do otherwise would constitute an immoral act.

The union of a couple other than between a man and a woman would destroy the institution of marriage and would harm the children. (Justice Denied 2002) If marriage is indeed for procreation, why does the state allow marriages between couples who are not capable of bearing children? It is because there is much more to marriage than simply going forth and multiplying. If this is really the case, why are healthy couples who have no intention of bearing children allowed to marry? The side of the law declares that a good government is responsible for maintaining order and providing benefits for its society.

Setting aside religious concerns, the marriage is expected to benefit procreation, known or at least presumed paternity, child and spousal support, stability in family and survivor’s rights. (U. S. Constitution Online. 2006) Although not all of these benefits require marriage; for example, there is no need for a secular marriage in order to procreate. A couple can choose to have children without going through the legalities of marriage. Marriage has an advantage when paternity needs to be established. Also, without marriage, child support may be difficult to manage.

Many other benefits and privileges are available for married couples and for those whom marriage is not an option, these could be unobtainable. This is the reason why homosexual couples struggle to gain the right to marriage. Homosexual couples can also feel the same level of love and commitment that heterosexual couples feel. But society has for a long time maintained the concept of homosexuality as abnormal, they refuse to accept homosexual relations into the normal world and give them a chance to make their own families.

The institution of the family is already being eroded by problems of degrading moral values. Promiscuity and extra marital affairs, polygamy and adultery affect the sanctity of marriage. In worse cases, divorce and legal separations in families have ballooned over the decades and families encounter issues on child support, child custody, affecting the emotional and social development of the children. So traditionalists fear that to add problems on gay marriages will weaken the family institution further and perhaps cause its collapse. Conclusion

“Marriage is not just about love and relationship, it is more about stability of the family”. (Gay Rights 2007) The government is very much focused on strengthening families. We have witnessed families crumble because of divorce and separations, children resort to drugs and become delinquents and problems to society. The government must always and foremost protect the family. If it will as easily provide special benefits to gay couples because they have other sexual orientation or preferences, then the government will be vulnerable to provide special benefits to all the others because of varying preferences.

The government is flocked with pressures on both sides, asserting the lifting of the ban on gay unions, and the conservatives that push to stop the proliferation of gay marriages and alternative family structures. The government has shown its bias against gay marriages and has installed the Defense of Marriage Act of 1996 which is a clear violation of the constitution, giving civil liberty to all its citizens. Both forces will not stop the tag-o-war as civil courts stay divided in their interpretations of the law. The government must be sure and firm about its decisions.

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