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Your Thoughts on Gay Marriage
Can you be patriotic, conservative and support gay marriage. should religion be kept seperate from state laws?
Date: 2/6/2008 9:30:52 PM ( 16 y ) ... viewed 3803 times whaya think about this?
There are many organizations and individuals in the United States who argue that same-sex marriages should be banned at both the state and national level. Indeed, eight states have already signed gay marriage bans into their constitutions. Additionally, eighteen states have voted to add language to their constitutions banning same-sex unions. Many opponents of same-sex marriage point to traditions and religious convictions to support their position. Their reasoning, however, does not hold water when tested on a constitutional basis. Hence, it is the purpose of this article to systematically prove that state bans on same-sex marriage are unconstitutional.
The basis for this argument comes from the United States Constitution itself. More specifically, the First Amendment's establishment and free exercise clauses, the Fifth Amendment’s reference to "life and liberty,"
the ninth amendment's enumeration of rights, and the fourteenth amendment's privileges and immunities clause all combine to make a resounding argument in favor of legalizing same-sex marriage. Supplementary support for same-sex marriage is also accumulated through the United States Supreme Court within its rulings and various constitutionality tests.
In turning to the First Amendment one finds the strongest constitutional argument for debunking the false legitimacy of religious reasoning in regard to same-sex marriage. In whole, the first amendment reads:
"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
The main rhetoric of the first amendment concerning this issue is found in the first half of the amendment. The establishment and free exercise clauses, which read, "Congress shall make not law respecting an establishment of religion, or prohibiting the free exercise thereof" signifies many different and consequential things.
First and foremost, this creates what many refer to as the "separation of church and state," which is a reality has been solidified by numerous Supreme Court rulings. One of the more elucidating written opinions by the Court on this topic was penned by Justice Black in 1947 in the case of Arch R. Everson v. Board of Education of the Township of Ewing, et al. In the opinion, Justice Black wrote that the establishment of religion clause of the First Amendment means "at least" this:
"Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever from they may adopt to teach or practice religion. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa. In the words of Jefferson, the clause against establishment of religion by law was intended to erect 'a wall of separation between Church and State'."
Taking these words, the case against same-sex marriage begins to erode significantly. The passing of a law banning gay marriage does, in fact, aid the cause of, and give preference to any religion wishing to do so. Additionally, same-sex marriage bans force homosexuals to conform to laws based on religious beliefs. What's more, it can easily be argued that such a law would "punish" those in favor of same-sex marriage for not holding the same "religious beliefs or disbeliefs."
The separation of church and state has been the central idea for such an abundance of Supreme Court cases that the Court has set up various tests in order to assist in adjudication. The three main tests that have been implemented on numerous occasions include the Lemon test, Endorsement test and the Coercion test.
The Lemon test, first appeared in the 1971 Supreme Court case of Alton J. Lemon, et al. v. David H. Kurtzman, Superintendent of Public Instruction of Pennsylvania et al. The Lemon test has three parts, or prongs that must all be met in order for a law to be deemed constitutional. First, the government's action must have a legitimate secular purpose. Second, the government's action must not have the primary effect of either advancing or inhibiting religion. Finally, the government's action must not result in an "excessive government entanglement with religion." If any of these three prongs are violated, then the law in question is found to be unconstitutional under the establishment clause of the first amendment.
Applying the Lemon test to the issue of same-sex marriage, one finds that state or national bans on gay marriage should, most certainly, be deemed unconstitutional. First off, It is hard to find any legitimate secular purpose in banning the marriage of two people simply because of their sex. In fact, if anything this appears to create a new form of sex discrimination. Secondly, a government endorsement of a same-sex marriage ban would clearly have a primary effect of advancing religious, and in most cases, Christian beliefs.
The next method of examination for consideration is the Endorsement test. Created by Justice O'Connor, the Endorsement test says that a law is unconstitutional if it favors one religion over another in a way that makes some people feel like outsiders and others feel like insiders.
Scrutinizing gay marriage bans under the Endorsement test, one finds that the allowance of such a ban does favor one religion or type of religious view over another. Indeed, a couple, be it "straight" or "gay," may not hold any religious beliefs; notwithstanding, such a law emphatically makes a homosexual couple feel like the outsiders, while heterosexual couples the insiders. All feelings aside, such a ban does literally push same-sex couples away from the possibility of matrimony.
The last Supreme Court test to be described here is the Coercion test. Created by Justice Kennedy, the standards for the test declare a law to be constitutional even if it recognizes or accommodates a religion, as long as its demonstration of support does not appear to coerce individuals to support or participate in a religion.
When this law is applied to same-sex marriage bans Justice Kennedy would find that the law would recognize and accommodate religious beliefs. This, according to Kennedy, this would be perfectly fine until you apply the rest of the test. Indeed, the government's clear support of such a ban does appear to coerce individuals to support those religious beliefs. The vast majority of people are brought up in families that teach them certain religious "values" and "beliefs." By passing such a ban, the government is reaffirming and supporting religious beliefs and telling homosexuals, of all ages, that they are not accepted and that they need to conform to religious beliefs and "societal norms." By allowing a same-sex marriage ban to slip past the Coercion test, the government is itself coercing people to behave a certain way and to support religious beliefs, thus violating the accepted notion of separation of church and state.
Overall, to sum up the tests that the Supreme Court uses in such cases, the Court has found that the government cannot promote one religion or faith group over another, it cannot favor a religiously based life of a secularly grounded life and it cannot assist in promoting a secularly based life over a religious life.
Although it has already been demonstrated that the separation of church and state bars religious arguments outright in the case against same-sex marriage, it may further the case to unmask the belief that the founding fathers wanted our nation to be ruled by a religious constitution. Some argue that the nation was founded on Christian beliefs and therefore, these Christian beliefs can and should be read into the United States Constitution. However, many founding fathers, including Thomas Jefferson (as quoted above) and James Madison point to the contrary.
***That's as far as I've gotten as of now***
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