Essay:Secular Arguments Against Same-sex Marriage
"Only marriage between a man and a woman is valid or recognized in California." These are the words that appear on Proposition 8 in California, a ballot initiative that will be voted on in November 2008 to ban same-sex marriage forever in the state. It's a very saddening experience for same-sex couples to go through when they realize they can never get married in the state, nor would the state recognize their marriage performed elsewhere. Of course, in states where same-sex marriage is not constitutionally banned, it's possible to fight a statute that prohibits it in court. However, legal arguments for same-sex marriage don't hold as much water as a state's interest in restricting marriage to a man and woman. This essay will discuss a couple of the legal arguments made by advocates of same-sex marriage.
The first argument made is the equal protection argument. Now, before we get into this, we must all have a through understanding of the type of reviews used to decide equal protection cases, and if you already know them, then just bear with me for this paragraph. First off, there are three types of reviews used to decide equal protection cases, which are strict scrutiny, intermediate scrutiny, and rational basis. Normally, strict scrutiny is used for suspect classifications, and sexual orientation does not fall under suspect classification, only a "quasi-suspect classification" under United States law. Normally, the argument made against same-sex marriage in court is decided on a rational basis test, since there are no suspect classifications in marriage laws, and there is no discrimination based on gender or alienage, in which case intermediate scrutiny would be used. A rational basis review requires the state to show a legitimate state interest and how the discrimination is rationally related to it. Sexual orientation is irrelevant to this classification; the classification is based on the relationship. A same-sex couple is not necessarily homosexual, though the vast majority of people in same-sex relationships may be gay. What sort of rational basis would a state have to deny same-sex couples marriage? The most common one used is procreation. Rationally speaking, it is only possible for a man and woman to procreate, so the state has an interest in promoting procreation and child-rearing within wedlock, and to protect the nuclear family. To reiterate, since gay people as individuals are not denied from marrying, the issue is not based on the sexual orientation, but on the relationship between two people of the same sex. Although Massachusetts has argued against this and ruled differently, several courts in several states have ruled in favor of this argument, including those in Washington, Maryland, New York, New Jersey, and Minnesota. They've made no distinctions for fertility or age either, making it clear that they are exceptions and that marriage is for the purpose of propagating society and protecting the nuclear family unit. As bigoted as it sounds, it's true.
The whole "prohibiting same-sex marriage discriminates against gay people" argument doesn't work here, because as the Supreme Court ruled in Romer v. Evans, sexual orientation is only subject to a rational basis test, not strict scrutiny. As the Court has also ruled in Lawrence v. Texas, the striking down of sodomy laws did not pave the way for same-sex marriage, because it was ruled on the grounds of substantive due process instead of equal protection, and that could hurt the legal arguments for same-sex marriage a lot.
The next argument is the parallel to interracial marriage. The Supreme Court ruled in Loving v. Virginia that bans on interracial marriage are not constitutional on equal protection grounds, including using language like "fundamental right to marry." Fundamental rights are subject to strict scrutiny. However, same-sex marriage is not. Marriage is defined as "The legal union of a man and woman as husband and wife." This means that as a person, you have the right to marry anyone of the opposite sex. The ruling in Loving simply reaffirmed that right by not making race a factor in marriage, and according to Baker v. Nelson, the Minnesota Supreme Court ruling made just years after Loving, stated, "[i]n commonsense and in a constitutional sense, there is a clear distinction between a marital restriction based merely upon race and one based upon the fundamental difference in sex." Race is immutable, but a relationship (not sexual orientation) is not.
Love is not a de jure requirement for marriage. That's something that must be understood. If a man and woman wanted to get married, they would be allowed, no matter if they truly loved each other, not matter if they were straight or gay. Anyone can have relationship with whoever they want, but if they want a marriage, they have to be with someone of the opposite sex. That's what the law requires, as well as both members of the couple being of age and not being consanguineous, and consenting. Those are the requirements, not being in love. This is not being said to be intolerant, this is merely the sad truth.
Now, do I, the author of this essay, support same-sex marriage? Of course I do, what liberal doesn't? However, court battles are not the answer to legalizing it. Instead of winning over judges, you should try to win over the hearts of people and have them democratically legalize it. They want to have a say in marriage too, it's not just something very important to same-sex couples. We all want to have a say in marriage, and if we can convince people through political, not legal, arguments that same-sex marriage is okay, we can truly achieve justice in the name of democracy.
Same-sex marriage is not something that is. It is only what should be.
- "Same-sex marriage and procreation." Wikipedia: The free encyclopedia. 14 July 2008. http://en.wikipedia.org/wiki/Same-sex_marriage_and_procreation
- "The Secular Case Against Gay Marriage." The Tech. 17 February 2004. http://www-tech.mit.edu/V124/N5/kolasinski.5c.html