Yesterday, the state legislature of New York and its governor passed a law permitting same-sex marriages. Homosexual couples around the country were elated about the news, but a significant portion of Americans still do not approve of permitting same-sex marriages.
We addressed this issue last summer, after a U.S. District Court found California's "Proposition 8" unconstitutional. Please feel free to read up on that particular post. Some questions addressed here may overlap, but the issue has once again become a priority among Americans. President Obama even took the opportunity to weigh in on the topic. Though he did not support same-sex marriages outright, the president came about as close as one could be to doing so -- maintaining that homosexual couples should have equal rights.
Completely divorcing religion (pun intended) from the idea of marriage is not possible. Though our government operates without an official religion, state and federal lawmakers are in a precarious situation. Many of these men and women are Christians and do not support gay marriage. The Bible (and most holy books) do not support homosexuality. However, a facet of American government is the doctrine of "separation of church and state." Religion cannot play a part in determining the legitimacy of same-sex marriages.
With that stated, the first point that needs to be addressed is that the United States Constitution does not mention marriage at all or even allude to it. According to the 10th Amendment of the Constitution, any powers not listed therein are given to the states.
Several state governments have deal with the issue of same-sex marriage, most of which do not permit such unions. If this is the case, then how could the U.S. District Courts intervene on a state matter?
Without launching into a prolonged message on federalism, it should be sufficient to say that the federal government (in its supremacy) can still determine the constitutionality of both its own laws and state laws. If a basic right is being violated, the federal government has the ability to interfere (see: incorporation doctrine).
Those who advocate same-sex marriage point to the 14th Amendment and its two crucial clauses that offer a variety of protections: the Due Process Clause and the Equal Protection Clause.
The Due Process Clause protects an individual from any state that would deprive them of "life, liberty, or property" without due process of law. What defines these three items? I doubt the men who drafted the 14th Amendment had any clue what sort of problems their broad language would cause, but in this situation, we have to ask the question, 'What is liberty?'
Essentially, liberty is a generic, encompassing term for all the freedoms we have as Americans. What does this include? No one can even say whether a marriage is a fundamental right or not. But let's presume for a moment it is a right. And let us even presume that gay marriage is a right as well. A state may intrude on a person's rights if the state can show a "compelling interest" in doing so. For instance, though Americans enjoy the right to free speech, that right is not absolute. Courts have held speech and other rights can be restricted in certain situations.
Can states provide a compelling interest to legally proscribe same-sex marriages? Let's look at a few sample cases in dealing with the 14th Amendment.
In Roe v. Wade (1973), the term 'liberty' was extended to include a woman's right to privacy / choosing to have an abortion. In the first trimester, the Supreme Court determined the state had no compelling interest in limiting abortions. This should solve the issue, right?
In dealing with legislation about doctor assisted suicide, courts have ruled that liberty did not apply. According to the courts, doctor assisted suicide provided a compelling interest to intervene -- that being the preservation of human life.
What compelling interest does a state have in interfering with same-sex marriages?
Before we delve into that compelling interest, we should not that granting legitimacy to same-sex marriages would open a Pandora's Box of sorts. If homosexual couples are permitted to marry, what about close family members? Would a state permit an adult brother and sister to wed? Surely not. Even if those family members were sterilized, the state would not allow this.
Would we allow multiple people to marry the same man or woman? Isn't polygamy protected under the 14th Amendment and 'liberty'? People fail to realize marriage is already heavily regulated.
Advocates of same-sex marriages can come up with no real reason to permit these unions other than to presume liberty must somehow include what they want.
Moreover, those who support same-sex marriage attempt to argue that everyone should be allowed to choose whomever they love. If we allowed people to be married solely on the basis of love, the previous examples of proscribed marriages would also have to be permitted. Where would a line be drawn?
So, what is the compelling interest that precludes same-sex marriages? The propogation of our society. Heterosexual marriages typically lead to the procreation of children. This subsequently perpetuates the population and ensures the survival of the state.
States want men and women to provide stable environments for their children and thus, encourage these men and women to marry (for life). To further encourage, they provide a series of benefits. If not for the binding nature of marriage, men and women would seek out others and place their children in a difficult position. In fact, the possibilites of the state having to care for orphaned or unwanted children would greatly increase. This would create an even larger burden on the state.
A homosexual marriage yields no possibility of producing children. Even though modern science can permit women to have fertilized eggs implanted in them, or for men to find some type of surrogate mother, these situations require a third party and cause a great deal of ethical and legal questions concerning those surrogates and their rights.
Critics of our perspective may point out that heterosexual couples can sometimes be unable to bear children. The incidence of this is so infrequent, that it would be negligible to society. Moreover, studies have show more than 1/5th of couples who cannot bear children had no reason as to why they couldn't reproduce. These factors coincide with the notion that those who are sterile typically don't discover this until long after they are married. This contrasts with same-sex marriages, where there is no possibility of offspring.
What about those who wed in their later years in life? The limits and capacity of men and women to reproduce are not defined. Women have been known to have children well past the age of 60 and men can easily father a child beyond that age.
Thus, a state has a compelling interest in preventing same-sex marriages. And that's presuming such a right exists at all under the 14th Amendment.