Marriage Rights Should Not Be Determined By Popular Opinion

The gay marriage debate in this country continues to rage on. As the California example demonstrates, rights are granted, rights are taken away. A similar battle rages in Maine. While some states have legalized gay marriage, others continue to debate the legality of it. Ironically, in Washington DC, gay marriage will likely become legal shortly. The irony being, of course, that the Defense of Marriage Act is a federal statute.

Marriage is an institution that, like most institutions, has benefits and flaws. The benefits are those conferred by society upon people who are married; the ability to provide health care benefits to the non-employed partner, the right to inherit property, to tend to a sick partner, to provide a legally sanctioned environment in which to raise children to name but a few. The flaws include the high failure rate of marriages, the pressure on people who are unhappy to stay married, the secrets that are kept behind the cloak of marriage which sometimes leave adults, and children, in situations of danger or abuse, the difficulty and expense associated with getting out of a marriage.

Marriage is an institution made permissible by law. It is sanctioned by law, and it can only be terminated by a legal decree. As such, it is a right that is granted to our citizens by the government, through the rights available under the Constitution.. The right is not something that should be the subject of a popular opinion poll. Yet, what recent history demonstrates, is that the right of marriage is something that in our country, we have allowed to become just that. Rather, marriage as we now know it is available only when the majority decides that it should be made available to a particular class of people. Since the present group of people desiring the right to marry are members of a minority group, the likelihood of their receiving the right to marry absent court action, is slim to none.

The California experience is a perfect example of this. After years of court action over the issue, the Supreme Court of California determines that limiting marriage to opposite sex couples is a violation of the California Constitution. The California Supreme Court was called upon to interpret the constitutionality of the prohibition against gay marriage. While some pundits have referred to the justices as "activist judges", that is the purpose of the California Supreme Court. Having done exactly what it is legally authorized to do, the question of legality of gay marriage moved to the polling place in the form of an amendment to the California Constitution. At the ballot box the question of gay marriage became the subject of a popular opinion poll. Because the majority of votes cast in that election were against gay marriage, the right of gay people to marry, in the most populous state in the country, was taken away.

Now we have a similar situation occurring in Maine. Gay marriage is legalized, and now it is back on the ballot and will again be the subject of a popular opinion poll. Absent support from heterosexual people who understand the problems that arise when the majority determines who has certain rights (a "tyranny of the majority", the quote often ascribed to James Madison), there is a good chance that gay marriage will not be legal in Maine, either.

Somehow enough people have been swayed by the term "activist judges" to become galvanized at the ballot box sufficiently to overrule them. These people are mostly galvanized by religious beliefs, or interpretations of those beliefs that have been told to them by their churches and religious institutions. Not only has gay marriage become the subject of a popular opinion poll, the opinion poll is influenced by religious factors. In other words, religious motivations have, in large part, resulted in the preclusion of marriage rights being available to a minority group. Under the Constitution, there is to be a separation of church and state. The separation was designed, by the framers of the Constitution, to avoid exactly this type of outcome: the setting of laws and social policies based upon religious factors. The framers of the Constitution understood that such a scenario would result in the majority being able to curtail the rights of a minority. That is precisely the situation now occurring.

If marriage were the subject of a popular opinion poll for any other group, they would likely also be disenfranchised just as most gay people are. Even today, if a ballot measure were posed in Alabama or Mississippi asking whether black people should be permitted to marry white people, the likely outcome would be no. Like statutes prohibiting gay marriage, in the past statutes prohibited blacks and whites from marrying. Our Supreme Court decided that was unconstitutional. In the same regard, statutes prohibiting men from marrying men, and women from marrying women should also be unconstitutional.

If any state can determine that a gay marriage is not a valid marriage, it would logically follow that any state should also be able to determine what classes of people can marry one another. If we permitted that to happen, just think of what the outcome would be. In some states blacks could not marry whites, in other states Hispanics could not marry people who were not Hispanic, and Asians could not marry any one other than Asians. But even in those examples, as extreme as they are, a distinction would still remain: the members of the minority group could marry other members of the same minority group. While it is legally impermissible to prohibit a black man from marrying a white woman, it is permissible for a gay woman to marry a straight man. It is not permissible for her to marry another gay woman. Even in the height of the days of Jim Crow, blacks were still allowed to marry other blacks.

The truth of the matter is that marriage is a right in this country and it is available to the majority of the population at present. Equal protection under the law requires that it be made available to all adult members of the population, or to none of them. Allowing marriage to become the subject of a popular opinion poll, as has taken place in this country, disturbs the very principles upon which this nation was founded. Two consenting adults should be able to marry one another under our Constitution. All of the time and energy being spent on the gay marriage debate could certainly be applied to solving real problems affecting our society, rather than battling over something that under the Constitution should just be.

 

Comments

[JohnBisceglia]

The LGBTQ community owes America NOTHING until equal.

NOTHING.

Those who truly believe that until America INCLUDED us, we will EXCLUDE our income taxes, may stop paying their taxes and prepare themselves for any confrontations from the government. Those who are afraid of rocking their own boat may do it "legally"; a how to by David Gross, a war-tax resister, is below:

How To Resist the Federal Income Tax Through the “Don’t Owe Nothin’” Method
http://sniggle.net/Experiment/index.php?entry=howto

[honeste vivere]

Okay, so I'm a little confused. I'm not a political buff, but I was under the assumption that a democracy is defined as:
"a system in which either the actual governing is carried out by the people governed (direct democracy), or the power to do so is granted by them (as in representative democracy)­."

I was also under the assumption that we lived in a democratic country. So could someone explain to me why the popular opinion of a democratic nation has no bearing on legal matters?

[Silas Barnaby]

"The benefits are those conferred by society upon people who are married;"

You have this backwards. It's society that benefits from men and woman being married. The government has a vested interest in men marrying the mothers of their children because it benefits the general welfare of it's citizens. Intact familys promote good order.

We all benefit from healthy marriages.

[CornetMustich]

Can I vote on your marriage? LOL

It's time for marriage equality in America now.

And let's not forget that marriage is firstly a civil matter in America, as marriage licenses are issued by and recorded in town halls not church halls or mosques or temples.

Cheers, Joe Mustich, Justice of the Peace,
Washington, Connecticut, USA

All summer long I officiated for couples who came to CT to wed from all across the country, and in many cases they brought their families and friends along to celebrate with them. Congrats to all.

And to the marriage police and sexually phobic, please find something else to do with your time because life's just to short. Find love.

[T2inDC]

It's called the Fourteenth Amendment to the United States Constitution.

Section 1. 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.

That's why the courts support gay marriage, because to deny it would be a violation of our Constitution.

The State should never put to a vote any law whos outcome may deny any minority group equal protection. It's as simple as that. We have been down this road in our history many times. You'd think we'd learn by now. Separate is not Equal.

[bannorhill]

So you are saying there should be no limits on what is a marriage?

[Liberal Angel]

Obviously they're suggesting that the Constitution is not up for popular vote. If that were the case, I'm sure the Republican party would be banned.

[serena1313]

Until man evolves to the point where all people are considered equal and individuals have the right to pursue whatever path they so desire and are free to marry whomever they choose inequality, injustice and intolerance will continue to plague our society.

At one time blacks could not marry whites; if a black man was seen with a white woman it was enough to send him to jail and some were murdered. Although still somewhat discouraged for a Jew to marry anyone other than another Jew and likewise other cultures and religions follow similar decrees has been mostly based on "purity."

However times have changed whereby most have come to the conclusion that some traditions and beliefs are detrimental, but many others who grew-up indoctrinated into a belief system that is intolerant of anything or anyone who believes differently and view diversity as a threat, a perceived enemy, demand others live by their rules.

One would think religion and the law are blind to colour, nationality, gender, culture, but because man writes the laws and interprets religion both are used as tools to maintain power and superiority over others. But it is cruel to deny people their equal rights, especially the right to relish their love by marriage or otherwise.

Once we realize purity in Love far outweighs purity of race, colour or religion and accept the fact that no one is better-than or less-than another then we become a truly enlightened society.

[unitron]

Once you say anybody of age and sound mind should be able to marry whoever they want to (same restrictions apply, plus consent, no animals allowed as they can not legally enter into a contract), how do you justify limiting the number of people involved to just two?

I'm not saying I'm in favor of or opposed to anything in particular, just that it's not such a bad idea to consider possible consequences before acting.

Can of worms, meet Mr. Whirring Sound.

[Rogan]

That's... weird... the point of marriage, is to share in certain things... legally...

I ought to simply argue that marriages involving more than two people, are acceptable to me, and creating legal protections for the rights married couples share, that extend to further "partners," ought to be perfectly reasonable.

Such a relationship being perfectly stable and committed, is not unheard of. William Moulton Marston, the noted Harvard psychiatrist who's most famous now for having created Wonder Woman and written that comic strip for many years, lived with two women. He was only legally married to one, but both had children by him, all involved appeared perfectly happy, and the women continued to live together peaceably, after his death...

...but you don't care, do you? You just want to start an argument. Based in hysterical morality. The kind the author of the above article claims quite rationally ought not to be a part of any public discourse, or federal law.

[StevenKeirstead]

I'd just like to point out that so far none of the states or countries that have legalized same sex marriage have also allowed plural marriage to be legalized.

[bannorhill]

Government and the law making process has both the right and the responsibility to define marriage. There are many definitions of marriage by different people. Who decides which are acceptable and which are not? Or should all be allowed?

The argument that it should not be left up to public opinion is also used by polygamists, the Fundamental Latter Day Saints Church, and many other groups to support their alternate marriage definitions.

[SD Indy]

So you ARE in favor of government involving itself in people's personal lives. Nice to know that you are a communist!

[Liberal Angel]

Excellent!

[Liberal Angel]

Government doesn't have the reponsibility of defining marriage. The states do. The point is that marriage exists, and should not be excluded from gay Americans on account of bigot fools thinking that they have some right to disenfranchise other people. All marriages in this country should be called "civil unions", and religious ceremonies should be called "marriages". Either way, having it both ways is not right. Government has no business marrying people.

[Rogan]

Exactly. Why the things you say, aren't widespread common knowledge and uncontroversially agreed-upon, it's beyond me...

[bannorhill]

State GOVERNMENTS do have the right to define marriage. Over 40 have simply defined it as between a man and and a woman. Federal courts have ruled that states do have that right and it does not violate the US Constitution.

In Maynard v Hill the US Supreme Court ruled:

"It (marriage) is an institution, in the maintenance of which in its purity the public is deeply interested, for it is the foundation of the family and of society...­".

Likewise in Pennoyer v Neff the US Supreme court ruled: "the state...ha­s absoulte right to prescribe the conditions upon which the marriage relarion between its own citizens shall be created, and causes for which it may be dissolved.­"

Government has the right to define marriage.

[Silas Barnaby]

"Government doesn't have the reponsibility of defining marriage. The states do."

Really? Did the Court overstep it's authority in Loving v. Virginia?

[jschwa]

Unfortunately, describing votes in an election sanctioned by the state as a "public opinion poll" puts those votes on the same level as a phone survey and completely disrespects the electoral process and the voters who didn't vote your way. Add the "separation of church and state" argument, which I'm sure was not meant to apply to voter intentions, and the disdain for those voters is palpable.

Voters bring to the voting booth a mixed bag of education, experience, beliefs, values, cultural norms, and more. To somehow reject the votes of those whose religious beliefs you do not share smacks of elitism.

In addition, marriage is made legal simply by states issuing the licenses for it. And it is only a matter of time until some states eventually do grant marriage licenses to gays. That we are even having the discussion (and let's keep it respectful) and voting on the issue tells me that some states are closer than ever.

So let's let the process work how it was intended to work. Let's be respectful of voters' rights, of their motivations, and of their votes. Shoving legislation down people's throats does not work. (See Roe v. Wade.)

I oppose federal legislation supporting gay marriage, but not on religious beliefs. If some states want gay marriage and others don't, then that is within states' rights--especially since states issue the licenses. If abortion was handled on a state-by-state basis, it would be much less contentious on both sides.

[Rogan]

I didn't read the rest of your comment, because you're not very bright or very sensible. But I'll tell you this: "separation of church and state" was, indeed, meant to apply to voter intentions. We are not allowed to VOTE for weird religious ideas. We shouldn't ever have that option.

[Liberal Angel]

Separation of Church and State is just that. Putting people's rights up for a vote is the same as a phone survey. It doesn't matter why you don't support marriage equality, you don't have the right to deny people their rights.

[bannorhill]

This issue has nothing to do with separation of church and state. 86% of Congress including a majority of BOTH parties voted to define marriage as between a man and a woman. 86% of Congress are not the members of the Christian coalition.

Bill Clinton signed DOMA into law. Hardly a member of the religious right.

64% of American voters who voted on defining marriage agreed with "a man and a woman". I did not know 64% (almost 2/3rds) of Americans were members of the radical right.

This is not a church and state issue. There are churches on both sides some supporting same sex marriage while others are opposed to it. No matter how marriage is defined some church will agree while others will disagree.

[StevenKeirstead]

Are you unaware that same sex marriage is legal now in Massachusetts, Vermont, Connecticut, Iowa and that thousands of Californians legally married during the period it was legal there, and that those who did marry then are still legally married? If you are going to comment on current events, you really ought to stay current on events.

[LebronJeremy]

After America won the Revolution, a slave named Quock Walker walked into the Massachusetts court house and said, by the language in the Mass. Constitution he should be free because it declared all men to be born free and equal. It was enough for Massachusetts to end slavery.
This is, quite simply, the exact way that the gay marriage ban should end. If it's reviewed by the courts, there's no was the ban could be deemed Constitutional, and it's as simply as that.

[obitrey]

Except under the Law marriage is defined as a union between a man and a women, so a court would have to uphold that, and could not allow gay marriage. Which is why instead of fighting to have marriage include same sex unions, they should be fighting for an union that is equal to marriage, and affords them the same rights.

[SD Indy]

Yeah, because the last time separate but equal worked out so well now didn't it.

[KHAAANNN]

You hit the nail on the head with your next to last paragraph.
That is whole idea behind the Republicans opposition to this.
If they can get enough legal precedent from the SCOTUS or worse yet a LAW into the casebooks that says it is OK for the State to discriminate based on ANY status, then all of the Misogyny laws WILL be resurrected by the Red states so fast your head will spin.
This is one of many stealth-racist power-plays by the current Bible-Thumpers in Congress to appease Palin's "Real Americans" and the "Tea-Baggers" and "Strict Contitutionalists" (all of which are code-words for RACIST) to try to shore-up the base.

[obitrey]

While i agree fully gay couples should be allowed to form partnerships which, allow them the same rights as marriage. It seems to me that a fair comprimise is to allow those unions under a different name. Marriage has throught out the history of the United States as a Union between a man and a women, which is why we dont allow Polygamy.

I sipmly don't see how it is an infringment of a gay/lesbian rights, not to change the long standing and understood definition of marriage because they demand it. Marriage is not the same as, when we amended the definition of citizen to included people other the just white males. That was an issue of personal civil liberties.

In this situation gay/lesbians are not individually being denied the right to get married, they could still get married as long as it was a union that qualified under the definition of marriage(i­e..man & women). Now as I stated before a Legal Union should be formed to include them, and make available to them all the rights they deserve.

[JackNasty]

Separate can never be equal.

As for your notion that heterosexual unions deserve special recognition: there's no rational justification.

[bannorhill]

You are correct. That is why there is one definition of marriage..­."between a man and a woman". There is nothing separate in that definition.

[Silas Barnaby]

"Heterosexual unions," you mean marriage and they absolutely deserve special recognition because the government has a vested interest in men marrying the mothers of their children. Society as a whole benefits from healthy marriages.

Homosexual unions, although not harmful, don't bestow any special benefits on society. There's no incentives to promote nor reward them.

[KHAAANNN]

Marriage is a State-sanctioned fiduciary contract, Religion/Morals have NOTHING TO DO WITH IT.
That is why you have to BUY a LICENSE from the STATE to get married.
This LICENSE FEE is used by the State to maintain the Fiduciary Records for future use in the eventual transfer of PROPERTY in case of; PROPERTY transfer in a Divorce proceeding (also controlled by the STATE,) PROPERTY transfer due to the Death of one of the signatories to the contract, or PROPERTY Inheritance claims by any offspring of the signatories.
The RELIGIOUS ceremonies are NOT BINDING in any state unless a prior LICENSE has been purchased and a State-certified surrogate (i.e. Priest, Minister, Ship's Captain, etc.) performs and maintains records of the ceremony which are then turned over to the STATE.
There is no such thing as an "understood definition of marriage" as marriage is nothing more than a State-sanctioned CONTRACT between two signatories.

[PlaceboStudman]

Unfortunately, human nature and evolution do not work kindly with the ideas of equality We are born and bred as in our nature as living beings to follow the "survival of the fittest", and usually "the fittest" are the ones who control the lives of the "unfit"

Thankfully, this is why we have government, the supreme court, and the constitution. Even though we are inherently designed to follow evolutionary "survival of the fittest", we have developed an intellect and a moral framework that allows a higher governing body to at least attempt to give us all an equal playing field.

Sadly, our past has shown that not even our laws follow our ideals, even when we know that inequality is immoral, and our laws have been written in such a way as to incrementally give each individual and group their chance at an equal playing field, once our intellect develops to see the immorality of inequality

[obitrey]

I fundamentaly agree with you, it is our goverments job to create an equal playing field. I think they have achieved that goal. What are the inequalities you speak of?

[PlaceboStudman]

Well, for example, the benefits attached to marriage. If a heterosexual couple is in an accident in a state while on vacation from another state, the healthy spouse/significant other is able to visit the critically injured accident victim, without question. If a gay couple is married in, say Massachusetts where gay marriage is legal, but is in an accident in Ohio, where there is a gay marriage ban, because the couple are the same gender, the healthy partner will be grilled about his relationship with the injured, and since there is the gay marriage ban in Ohio, the couple married in Mass is not considered married, and the healthy spouse is barred from seeing the injured victim in the ICU, where he (or she) may die, alone, at any moment

That is NOT a level playing field. There MUST be unified national benefits attached to marriage if any benefits are offered.

It is also legal in 30 states to fire, or simply refuse to hire someone based on nothing but their sexual orientation. That is not a level playing field either

If an American citizen is married to a foreign citizen, the foreign citizen is allowed to remain in the US if the spouse dies. If the couple is gay and married by the state, the foriegn gay partner is deported

Not a level playing field