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Marriage Rights Should Not Be Determined By Popular Opinion

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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.