Loading ...Why Same-sex Marriage Is On Solid Legal Ground
January 8th, 2006 by SteveI know I promised this post almost 2 weeks ago, but I’ve been procrastinating. Essentially, I want to go into the legal reasoning for why marriage between two people of the same sex must be recognized. Using purely the Constitution [political theory on liberal democracies could be discussed, but we would reach the same conclusion], Amendments IX and XIV provide the basis for this. Marriage, after all, is not simply some ceremony anymore. It is also a series of rights, both parental, inheritance-wise, and economic. Some of these rights are extended to unmarried couples, but not all [and the religious right dislikes that, too]. Therefore, couples who enter into such a contract are rewarded with these rights. Let’s go over those amendments now.
Amendment IX: The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
Amendment XIV: 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.
Amendment Nine is the least important in this instance; basically, people have rights beyond those listed explicitly in the Constitution. The Fourteenth… ah, the dreaded, dreaded Fourteenth Amendment. Conservatives hate this amendment, because it gives really broad, equal rights to all citizens and is interpreted by liberals and progressives, like me, that the government needs to protect those rights. In this instance: heterosexuals are given the right to marry. Homosexuals are not. Thus, the system is not just, or fair.
This argument usually provokes this lame counter-argument from the anti-gay proponents: homosexuals ARE given the same rights! Gay men can marry women, same as straight men, and gay women can marry men, same as straight women. This is a silly argument, but let’s play their game. Even if their ridiculous argument held water… this style of marriage would still be discriminatory. Why?
In a liberal democracy, it is necessary that all citizens have the same basic rights and liberties. Since the most basic unit of a society is the family, it would be fair to conclude that marriage rights are some of the most basic. Even if we were to concede to the “homosexuals have the same rights as heterosexuals” talking point, this argument walks right into another dilemna: the marriage described is sexist. Men are allowed to marry women, but not men; men are allowed to marry women, but not men. This system is inherently discriminatory to both sexes. Of course, “traditional” Western marriage is gender-structured and was a method to transfer ownership of women from their fathers to their husbands. The most vocal opponents of gay marriage believe in this type of marriage; a brief perusal of their other writings would confirm this. They talk about the importance of women “understanding their role” in a family, and in a society. They don’t believe in equal rights for men and women… no, I take that back. It’s not so much that they don’t believe in equal rights… they just think women should be subordinate to men in private life. It’s their lovely way of grasping the remaining straws of the house of patriarchy.
Since gay marriage opponents are pushing to put a state amendment on the ballot in Florida, they’ve published a 10-point list of talking points. The bottom 9 all rely on the 1st one being true, but regardless, I’m going to debunk them one by one.
1) Collective wisdom-all the collective wisdom of human history, not to mention biology, logic and common sense shows us that marriage is designed to be between a man and a woman.
Hah! Actually, biology consistently finds same-sex activity amongst other animals, besides humans. Marriage is actually abnormal in terms of biology; we’re the only species that does anything similar to it. And common sense tells me if two people love each other, and the can both consent… why not? As for collective wisdom of human history… wait, I bet that’s a logical fallacy! How about that, it is! Sorry, this point holds no water.
2) Creating same sex families-when you create a same sex marriage you are also creating a same sex family, and so the question now becomes what is in the best interests of children
Um… huh? There might not be children. If the parents started abusing them, then yeah I’d say we’d have to use child services to protect them, but what is being insinuated here is that t3h g4ys are dangerous to children. Since they’ve shown no proof that one’s sexual orientation is causal to abusing children, this argument fails.
3) Social experiment-same sex marriage subjects children to a vast untested social experiment
Not really. Children have been living with same-sex couples for decades. Not allowing those couples to marry won’t change that. Unless… hold on, I don’t want to get ahead of myself.
4) Socializing children-children need to grow up understanding the proper human relationships between a man and woman, a mother and father, and a husband and wife
See, this goes back to what I said before; men have their place, and women have their [inferior] place. And they better know that place, or else! And we have to teach their children that place as well!
5) Dads and moms matter-children need both a mother and a father. The two most loving moms can not be a dad and the two most loving dads can not be a mom and children need both
How is this a different argument than 4? It’s not. There’s no proof of this, actually. It’s not so much that children need 2 opposite-sex parents; it’s more that they need interactions between (a) parent(s) that cover a broad spectrum of interactions. The “traditional” social roles of men and women tended to cover the spectrum. However, there is no reason that egalitarian couples [or a well-rounded single parent] wouldn’t be able to do this. They are making an assumption to base their argument on; the argument fails.
6) The research is clear-the research is crystal clear, children always do better in families with a mother and a father
See above. Furthermore, the comparative studies are mostly with single-parent households, and those causes are more economic of nature.
7) Loving and civilized societies-a loving and civilized society always comes to the aid of fatherless and motherless families. But a loving and civilized society never intentionally creates fatherless and motherless families as a matter of law and public policy
Huh? This makes no sense. “Society” would not intentionally be creating fatherless or motherless families.
If marriage means anything-if marriage can mean anything then marriage means nothing
Marriage means love. We who support gay rights just believe in love more than the opponents.
9) Relationship buffet-no society ancient or modern has ever sustained itself with a buffet like mentality when it comes to marriage and family
No society ancient or modern has ever sustained itself, period. Ridiculous argument.
10) Slippery slope-establishing same sex marriage as a fundamental right will undermine current polygamy laws and create a new legal precedent for anything goes forms of marriage
Actually, polygamy is outlawed for different reasons: it is used as a means to suppress women, it would create a massive headache in terms of marriage benefits [those rights we talked about? Yeah, try doing inheritance when one person dies, leaving behind 8 spouses and 5 children]. That’s why I don’t think polygamy would work in our society. Oh, and also, logical fallacy.
Now here’s my question: take out specific references to same-sex marriage/parents, and replace it with single parents, and all the arguments make sense. These could be talking points on divorce, because they make the same point: children must be raised in a family with a mother and a father. And if society even allows anything else, we are endangering children. But they aren’t arguing against single-parent families here… they’re arguing that same-sex couples are a direct threat to children. Why stop at marriage laws then? The leaders of the opposition believe gays are criminals; having sex with someone of the same sex, even if you love them, is sinful, ungodly, and unnatural.
So let’s cut the crap. This isn’t some minor disagreement over the interpretation of a Constitutional amendment; this is about whether or not 2 consenting adults can have privacy in their own house, whether or not they have the same basic rights as 2 adults who are married and are of different genders.
That’s what this is really about.
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