Is Gay Marriage a Right?

Is Gay Marriage a Right?
They call it, "The Defense of Marriage." Unfortunately, they pass off a lot of misinformation under that serious sounding heading. I'm going to take a few weeks and go over point by point the legal truth about this defense of marriage. I think it's important that we understand what they're talking about and they understand what the law states. We are, after all, a nation that prides itself on our system of law. The first topic to explore is:

No one has the right to marry whomever he wants.

No one has the right to marry whomever he wants. Gays can already get marriage licenses on exactly the same terms as anyone else. Everyone is equally barred from marrying another person who is under a certain age, or too closely related, or of the same gender, or already married to another. Sound reasons underlie all these requirements, which apply equally to everyone, male and female. Gays can already get marriage licenses on exactly the same terms as anyone else. Homosexuals are seeking a special right. They already have the same right to marry the rest of us have-the right to marry a person of the opposite sex. Limiting marriage to one man and one woman doesn't discriminate on the basis of sex or sexual orientation. Gays already have the liberty to live their lives as they choose, set up housekeeping, share income and expenses, make contracts and wills, and transfer property. What they are now demanding is respect and social standing for a lifestyle that others believe is immoral (like mixed-gender cohabiting).

-Why We Must Protect Marriage

As is often the case when dealing with leftists, once you cut through the rhetoric the actual logic of the situation rests firmly in the conservative’s position. First and foremost, gay marriage is not a “rights” issue. No one has the “right” to marry whomever he wants to marry. We can only marry one person who (until recently in Massachusetts) was required to be of the opposite sex. A person cannot marry inanimate objects, animals, children, or multiple people. A person cannot marry someone who is currently married to someone else.

- The Case Against Gay Marriage

Considering that millions of people every year in the United States marry the person of their choice, this argument seems almost senseless. No on is arguing about marrying your sister, brother, aunt, uncle, mother, father, animals, children, inanimate objects or multiple people. This is the "slippery slope" argument that I'll discuss at another time and place.

Suffice it to say that that few people in their right minds would even want to do that, so we'll limit the scope of this argument as it pertains to marriage between two gay people. You will find these comments quoted or paraphrased in many on-line discussions concerning the rights of gay men and women to marry whom they chose.

Is the conservative Christian attack correct? Is there nothing in the law that suggests that gays should be able to marry the person of their choice? The answer is yes.

In her decision in Hernandez, et al., v. Victor L Robles, City Clerk of the City of New York, State Justice Doris J. Ling-Cohan had this to say, "The United States Supreme Court has made clear that the right to marry is a liberty right." She gives the following as evidence:

“Our law affords constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education. [cite omitted]... These matters involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment.”

- Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 US 833,851 (1992)

The following is how Justice Ling-Cohan follows up on the above point:

Under both the Federal and New York State Constitutions, it is beyond question that the right to liberty, and the concomitant right toprivacy, extend to protect marriage. The United States Supreme Court has long recognized the fundamental importance of marriage. As early as 1888, in Maynard v. Hill (125 US 190, 205, 211 [1888]), the Supreme Court stated that marriage “creat[es] the most important relation in life” and is “the foundation of the family and of society, without which there would be neither civilization nor progress.”

In 1923, the Supreme Court in Meyer v. Nebraska, 262 US 390, 399 (1923), recognized that the right “to marry, establish a home and bring up children” is a central part of the liberty protected by the Due Process Clause. Nineteen years later, in Skinner v. Oklahoma, 316 US at 541 (1942), it described marriage as “fundamental to the very existence and survival of the race.” In 1967, the Loving Court recognized marriage as a fundamental right under the Constitution, striking down the state’s antimiscegenation statute: “The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men... Marriage is one of the ‘basic civil rights of man,’ fundamental to our very existence and survival.” 388 US at 12 (quoting Skinner, supraat 541).

One decade later, in Zablocki v. Redhail, (434 US at 384 [1978]), the Court reaffirmed its holding in Loving, stating that “[a]lthough Loving arose in the context of racial discrimination, prior and subsequent decisions of this Court confirm that the right to marry is of fundamental importance for all individuals.” Furthermore, the Supreme Court has noted that marriage is a: “right of privacy older than the Bill of Rights – older than our political parties, older than our school system. Marriage is a coming together for better or for worse, hopefully enduring, and intimate to a degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions.”

Griswold v. Conn., 381 US at 486 (emphasis supplied). The Supreme Court has “long recognized that freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment.” Cleveland Bd of Ed v. LaFleur, 414 US 632, 639-40 (1974); see also Zablocki, 434 US at 384 (quoting Griswold, supra). As stated by the Supreme Court: “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.”

Lawrence v.Texas, 539 US 558, 574 (2003) (quoting Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 US at 851). The Court further emphasized that “[t]hese matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment.” Id.

As other States have also observed, the right to marry "is not a privilege conferred by the State, but a fundamental right that is protected against unwarranted State interference." Goodridge v. Department of Public Health, 440 Mass at 345, 798 NE2d at 970 (Greaney, J. concurring). "[I]t is a fundamental right of free men." Perez v. Sharp, 32 Cal 2d at 714, 198 P2d at 19.

The second aspect of the fundamental right to marry, which is what this action concerns, is the right to choose whom one marries. The right to choose one's spouse "resides with the individual." See Loving, 388 US at 12 (freedom to marry embraces the choice to select a partner across racial lines which cannot be infringed by State);Perez, 32 Cal 2d 711, supra (same); Goodridge, 440 Mass 309, supra (freedom to marry person of same sex). "The right to marry means little if it does not include the right to marry the person of one's choice..." Goodridge, 440 Mass at 227, 798 NE2d at 958. See also Perez, 32 Cal 2d at 715, 198 P2d at 19 ("right to marry is the right to join in marriage with the person of one's choice"); Brause v. Bureau of Vital Statistics, 1998 WL 88743*6 (Alaska Super)(deciding whom to marry is a fundamental right, whether decision results in traditional or nontraditional choice), superseded by Alaska Const Art 1, § 25 (effective Jan. 3, 1999) (providing that a valid marriage "may exist only between one man and one woman").

Because the exclusion of same-sex couples from eligibility for civil marriage infringes the fundamental right to choose one's spouse, such exclusion may be sustained only if it serves a compelling state interest. The Supreme Court has consistently reaffirmed that, since the freedom to marry is a fundamental right, restrictions that “significantly interfere with decisions to enter into the marital relationship” are subject to “rigorous scrutiny” and “cannot be upheld unless ... supported by sufficiently important state interests ...closely tailored to effectuate only those interests.” Zablocki, 434 US at 386-388.

There are three decisions concerning the right of a gay couple to marry: Hernandez, et al., v. Victor L Robles, City Clerk of the City of New York, Goodridge v. Department of Public Health, from Massachusetts, and Heather Anderson and Leslie Christina; et al., v. King County, et al. from the state of Washington. All three concur that marriage and the right to choose one's partner in marriage, are fundamental rights protected by the U.S. Constitution. All three confirm that it is unconstitutional to disallow gay couples the right to marry.

Know the law. It's the only protection we have.


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