Why was gay marriage legalised? Are same-sex marriages right or wrong? What’s the big deal about US and same-sex marriage anyway? Find answers here.
June 26, 2015 – In a landmark opinion, a divided Supreme Court on Friday ruled that same-sex couples can marry nationwide, establishing a new civil right and handing gay rights advocates a historic victory. – CNN (June 27, 2015).
Undoubtedly one of the biggest news in 2015, the landmark ruling by the Supreme Court was highly publicised by all major international news media and has sent shockwaves across conservative and religious groups throughout the world. Do conservative and religious groups have any basis for their dissent? Has the traditional constitution on marriage been compromised?
This article examines the basis for the unprecedented 5-4 ruling by the Supreme Court to legalise gay marriages and concludes whether LGBT couples has the right of way for their union regardless of gender, versus whether the premise of marriage should be a union between that of a man and woman.
Now that ‘the dust has settled’, I would like to approach and examine the subject of the US and gay marriages. Yes, US legalisation will have far-reaching effects on a global scale. But, for the friends and others who are lighting up their Facebook profiles with rainbow color selfies, and those who are wearing white tees to object the legalisation of gay marriages, I thought that you should know what the case is about before you decide which camp you want to root for.
While this topic is one that I am personally concerned about and have spent considerable amount of time researching into, the article will be lengthy and perhaps even boring in-between. Commenting as a non-US citizen, some of the information I have gathered pertaining to the US Constitution might be slightly inaccurate and I seek your understanding on this. I will also try to break down the definitions and jargons into easy-to-understand terms to aid in your understanding on the issue.
For the purpose of this informational article story, the words; gay, same-sex and LGBT (Lesbian, Gay, Bisexual and Transgender) will be used interchangeably and is not meant to be derogatory at any point within the article.
1. What is the US Constitution?
We have been reading a lot about the LGBT community and activists demanding for their ‘constitutional right’. What is this ‘constitutional right’ that US citizens are entitled to? And on that note, what is the US Constitution?
The United States Constitution is the supreme law of the United States of America which came into effect on September 17, 1787, twenty years after the issuing of the Declaration of Independence. The US Constitution was made up of several binding articles that ‘established America’s national government and fundamental laws, and guaranteed certain basic rights for its citizens’ (The U.S. Constitution, n.d.). In fear of dictatorial tyranny of the federal government, the groundbreaking law; the Bill of Rights – 10 amendments that guaranteed basic individual protections such as freedom of speech and religion – was established as part of the US Constitution to protect the rights of all US citizens.
Another unique move by the US federal government was the separation of power into three different branches; the Legislative (Congress), Executive (President) and the Judicial (Supreme Court). Each is in charge of their own domain (To find out what are the responsibilities of each branch, click here). The distribution of federal power creates a system of check and balance that prevents the abuse of power.
2. What is Constitutional Right and Constitutional Law?
In July 9, 1868, the Fourteenth Amendment was made and adopted to the US Constitution. According to the US Constitution and the following Amendment Bills, citizens have the fundamental right to freedom of speech, religion, marriage, privacy, equal protection, parent one’s children, just to name a few.
The Due Process Clause and the Equal Protection Clause within the Fourteenth Amendment states that US citizens have the ‘fundamental right to marriage’.
So, US citizens are entitled to their constitutional rights. One of which being the fundamental right to marriage.
3. Which Branch Governs Constitutional Laws?
In 1996, then US president Bill Clinton signed and passed the Defense of Marriage Act (DOMA), defining marriage as the ‘union between one man and one woman as husband and wife’. The act also gives power to the state in deciding the legitimacy of gay marriages in accordance to the respective state laws. This law was vetoed (struck down) by the Supreme Court in 2013. Meaning to say, DOMA became invalid, reverting the law on marriage within the confines of the constitutional law.
Here, we see that while the US president may be one of the most powerful person in the world, he does not have the final word when it comes to laws pertaining to the constitution. The Supreme Court does. This is an example of the check and balance between the three branches within the US federal government.
4. Constitutional Law vs State Law
While constitutional (federal) law outlines the framework of the laws that govern the nation as a whole, the state (there are a total of 50 states in the US) has the freedom to exercise its own state laws within its state. Marriage (Who is allowed to marry, how it is dissolved, etc) is regulated by the states themselves and this was established by the Supreme Court. But there is a catch. The state has the right to exercise its own state laws as long as it is within the premise of the constitutional law.
In the case of the state, the state does not have the power to prohibit a marriage without valid reason (Legal Information Institute, n.d.). So, when there is a conflict in ruling due to difference between constitutional law and the state law, the result is the supremacy clause (Daunt, Jan 28, 2014) where the federal law prevails, giving the federal government the right to overrule the ruling by the state if they so choose to pursue the case in question.
So, according to the constitutional law, US citizens including the LGBT community, has the constitutional right to marriage, even if the spouse is of the same gender.
5. What Sparked The Saga in the US?
In June 2013, gay couple James Obergefell and John Arthur filed for marriage in gay-friendly state, Maryland. Arthur was dying and the two wished for Arthur’s would-be death certificate to list him as ‘married’ and Obergefell to be his surviving spouse. When they found that the state they were residing in; Ohio do not recognise gay marriage and certainly would not condone their request, they filed for lawsuit against the state for discriminating same-sex couples. The case was escalated to the Supreme Court. After two years and many extensions, 5 of 9 Chief Justices voted in favour of granting same-sex marriages, forming the majority which – according to the Fourteenth Amendment – recognises same-sex marriages in all states, further negating the laws of states which banned anti-gay marriages.
6. Why Is Gay Marriage Recognition Such a Big Deal to the LGBT?
According to Human Rights Campaign (n.d.), there are a total of 1,138 benefits, rights and protection entitled to every legally married couple in the US. These includes social security, tax, immigration, employee benefits and continued health coverage. And of course, there is also the recognition of the other half in their baby’s birth certificate and their spouse’s death certificate; benefits which are irreplaceable by money.
So, the lobbying for gay marriage recognition is beyond simply trying to remove discrimination (discrimination can never be fully gotten rid of, in a sense. Take 21st century black racism for example. I will leave this topic to another post). Monetary and intangible benefits are at stake.
Hence, the lobbying for gay marriage recognition.
7. Why Does/Should This Concern Me?
Prior to the ruling by the US, there were already 20 countries who recognises same-sex marriages. But when the US becomes the 21st country to recognise same-sex marriage (Roberts and Siddiqui, June 26, 2015), the world listened. And the world responded, both in favour and against the decision.
Like it or not, the US wields much power and say in the world today (though China is going to take over sooner or later). The US and its collective group of citizens and companies have much say in international organisations like the International Monetary Fund, World Bank Group, United Nations, et cetera. Even popular culture is influenced largely by the US through Hollywood and MTV. When we talk about globaliation, more often than not, we are talking about western (US) imperialism.
Think of the US as the ‘head prefect’ in school and the other countries as either lower perfects, or mere students. All students may have their own rights, but when the head prefect speaks during assembly, everyone listens. Hence, the US does hold considerably-huge influencing power over other nations, especially the minor countries.
The victory for the pro-LGBTs presents the triumph of the LGBT agenda in a major country. Liberals, pro-LGBT lobbyist and activist can use that legitimisation as a form of leverage for the fight in their own national frontier – Singapore and the Pink Dot movement, etc. You will rejoice or despair depending on which side you’re on.
8. Why are the Conservatives Making a Big Fuss?
The internet broke on June 26 when results of the ruling were announced. Never have we seen such a strong separation of camps between the LGBT community, activists and their non-gay sympathisers, versus that of the conservative and religious groups. One man’s treasure is another man’s poison. While the pro-LGBTs wave their rainbow flags in celebration of the triumph of Love, the air of celebration were not shared with dissidents from the other camp.
In January 2013, it was reported that a lesbian couple is suing The Sweet Cakes by Melissa Bakery for refusing to bake a wedding cake for their wedding (Silverstein, Feb 4, 2015). Fast track to 2015, Melissa Bakery is being sued and ordered to pay up to $150,000 to the lesbian couple for their refusal to bake that wedding cake. Herein lies the problem; reverse discrimination. While LGBT discrimination is real, so is non-LGBT discrimination.
There’s also numerous issues such as the fear of normalisation of LGBT within the traditional family unit, LGBT approval that leads to legitimisation and advocacy, LGBT institutionalisation (Kumar, June 28, 2015), concern on future lobbying for other undesirable union such as polygamy, bestiality or incest, shakeup between heterosexual majority and homosexual minority in the future, LGBT reeducation and assimilation in minors, rise of surrogacy industry, and the list goes on.
Theologian John Piper shared his concern; “states cannot ban same-sex marriage, “Homosexuality is not new for America or history. What’s new is not even the celebration and approval of homosexual sin. What’s new is normalization and institutionalization. This is the new calamity. It approves and institutionalizes the sin of homosexual intercourse.” (Kumar et al., June 28, 2015).
9. Is It Valid for Conservatives to Cry Foul?
While there are definitely much truths in all of the concerns laid across by the dissenting groups (and I myself being a Christian), we must understand that the Chief Justices of the Supreme Court were not incorrect in their decision to validate gay marriages as US citizens’ constitutional right, in accordance to the constitution. If I may borrow a line from the film Ted 2, the court ‘rules by reason and not by emotional conviction’.
There is also the concern for the children raised in LGBT families to be highly dysfunctional and there has been numerous adults from LGBT families speaking up on this. But, being born to a heterosexual family does not guarantee the absence of dysfunction either. In fact, we are arguing that dysfunctional heterosexual families created many LGBTs, isn’t it? Hence dysfunctional children is not a strong case to put out there against gay marriage recognition.
Also, while the US is technically a Christian nation, they also believe in the separation between the state and religion. Hence, it is difficult to overrule the decision on grounds of religious anarchy.
Hence, because every US citizen are entitled to their constitutional rights, the conservatives and the religious groups has no basis to overturn the decision made by the Supreme Court at all.
10. What’s Wrong About The Ruling
We have established that it is every US citizens’ fundamental right to marry another individual of the same gender according to the constitution. We must now understand that while gay marriage entitlement may be a constitutional ‘right’, there are moral dilemmas and repercussions that result from the ruling. While the case is ruled from a legal rather than a moral standpoint, there are real repercussions that will come forth from the June 26 ruling.
We must ask ourselves, “Is legalising gay marriage wrong?” Does constitutional right necessarily make it right? While it is established that marrying a same-sex person is every US citizen’s constitutional right, we need to decide if legalising and approving gay marriages which thereafter lead to potentially legitimising, advocating and normalising the gay movement is desirable or not (The potential problems are as stated above in point 8).
But yet, there will be an irregularity if we were to call for a veto on gay marriage recognition since the US approval for other vices such as prostitution, gambling, tobacco industry is not governed from a moral or ethical, but a legal ‘constitutional right’ standpoint.
So unless we are calling for the ban of other vices, calling for the reversal of the gay marriage recognition would be inconsistent. And in order for us to make an appeal against the ruling, we must also seek for the revision through a new Amendment on the US Constitution for matters which including other vices.
11. Nature or Nurture
So to conclude, in order to decide if the legalising of gay marriages is right or wrong, we must first and foremost address the question; ‘Is being an LGBT a product of nature or nurture?‘ If being LGBT is a product of nature, that would mean that future lobbying by conservatives and pro-family activists is rendered invalid since there is sufficient evidence to prove that people are born with these tendencies. If being LGBT is a product of nurture, that would mean that governments need to look into rehabilitation of these individuals and the revision through the Twenty-Eighth Amendment to the US constitution. Based on this truth, the LGBTs will have no basis to call for gay marriage recognition.
This is the question we must solve beyond all other debates that is being held today. But this is also the most tricky since it is a matter of scientific verification which can be either proven for or against depending on the idiosyncrasies, bias and method of research by the researchers and scientists. RW