Same Sex Marriage

Same-sex marriage is a debate that is equally contentious and multi-faceted. Unlike more simplistic issues, the stances on homosexual marriage are obscure and blurred. Opponents cannot even agree on whether homosexuality is natural, let alone whether or not homosexuals should be permitted to marry. The debate surrounding same-sex marriage breaks down into several different categories: constitutionality, the religious aspect, familial impact, and the further nuanced idea of civil unions. Proponents of same-sex marriage argue that disallowing gays to marry is a violation of the Constitution. Further, they attest that religion does not explicitly mention homosexuality or it should not be used as a basis for making laws. Additionally, they claim that families actually benefit from same-sex partners. Lastly, some proponents of same-sex marriage would be satisfied with civil unions which give some of the same rights as marriage; however others contend that civil unions should not be permissible because gays are still being denied equal rights. On the other hand, opponents of same-sex marriage argue that the Constitution does not provide for homosexual marriage. They combat the religious argument by stating that religious texts deplore homosexuality and condemn the idea of same-sex partnerships. Further, they maintain that gay parents have a negative impact on children. Evidently, there are multiple sides to this debate and there is no easy answer, however the pro same-sex marriage side is following the course of a prior civil rights movement, and thus slowly advancing their cause.

The first aspect of same-sex marriage to look at is constitutionality - specifically, the right to privacy. Proponents of same-sex marriage argue that Griswold v. Connecticut establishes a right to privacy that does not allow the government to interfere in the sphere of relationships. According to the text of the case, the "right of privacy [is] older than the Bill of Rights...[m]arriage is a coming together for better or for worse...intimate to the degree of being sacred" (Sullivan, p.88). The opinion states that the government cannot control sexual relationships, and proponents of same-sex marriage understand this to mean that the government should not be in charge of regulating marriage. The notion of a right to marry was furthered in the case Loving v. Virginia. This case outlawed anti-miscegenation laws, but may have also had important implications for homosexuals' right to marry as well. The Court claims that marriage is "one of the vital personal rights essential to the orderly pursuit of happiness by free men" (89). Within the case, the opinion finds that not only were the laws a violation of the equal protection clause, since they prohibited "only interracial marriages involving white persons," but they were also a violation of the due process clause since the right to marry was taken away without due process of law (90). The three major constitutional issues brought up in these cases, (the right to privacy, the equal protection clause, and the due process clause) are all furthered by a more recent 1993 case: Baehr v. Lewins. With those three constitutional issues in mind, the Court decided that "any state's powers to regulate marriage are subject to the constraints imposed by the constitutional right to the equal protection of laws" (111).

However, opponents of same-sex marriage disagree with the findings of the previous Courts. According to the opinion in the court case Baker v. Nelson, "Statute prohibiting marriage of persons of the same sex does not offend the First, Eighth, Ninth or Fourteenth Amendments" (91). This is based on the notion that the right to marry is not, in fact, a fundamental right (92). Further, Jones v. Hallahan establishes that marriage, by its legal definition, does not encompass members of the same sex (94). These arguments eat at the most fundamental aspect of the same-sex marriage advocates' arguments - if marriage is not defined as "between members of the same sex", and if the right to marry is not fundamental, the points of contention on the first, eighth, ninth or fourteenth amendments are irrelevant.

Next, the disagreement surrounding same-sex marriage expands to the sphere of religion. Religion is a complex piece of the argument because one's religion does not necessarily dictate his or her stance, although religion is often used as a justification for why one believes the way they do. Both the Catholic and Jewish faiths have particularly strong opinions on this matter. With this in mind, the "typical" Catholic argument against same-sex marriage is first explored. According to Reverend Joseph L. Charron and William S, Skylstad "The Roman Catholic Church believes that marriage is a faithful, exclusive, and lifelong union between one man and one woman..." (52). Further, a fundamental reason to marry, as ordained by God, is to procreate (52). Evidently, this is something homosexuals cannot do without technological intervention. Another Catholic belief resides in the notion that same-sex marriage will undermine the institution of marriage as a whole (55). However, this argument represents one of the weaker religious viewpoints because it is difficult to see how homosexual marriages directly affect other heterosexual relationships. The religious argument also extends to Jews and the Old Testament. According to Dennis Prager, a contributing author to Same-Sex Marriage, "[T]he Torah's prohibition of homosexuality was a major part of its liberation of the human being from the bonds of unrestrained sexuality and of women from being peripheral to men's lives" (62). Further, Jews, like Catholics, also believe that procreation is an integral aspect of marriage (64). While it is not a requirement of married people, the lack of a potential to reproduce suggests to anti same-sex marriage Jews that homosexuals should not marry.

Despite the seemingly strict religious arguments, other religious spokespeople argue in favor of same-sex marriage. Presenting a direct opposition to Prager, Rabbi Yoel H. Kahn does not feel that God condemns homosexuality. Rather, he states that he does "not believe that God creates in vain," and further, "that homosexual relations are as natural to us as heterosexuality is" (73). Within these two points, one can infer that since Kahn believes that homosexuality is natural, he also believes they should be accepted and offered full rights as members of both the Jewish community and the body politic. Additionally, Kahn refutes the argument regarding procreation. He says that since it is not required of heterosexual couples to procreate, "we cannot hold homosexual families to a higher standard" (74). Another religious figure,