Homosexuals, Marriage and the Law

A constitution is a legal document that holds a state’s upmost values. It is moral. It is powerful. A violation of the constitution leads to punishments ranging from impeachment of office to federal jail sentences. It is also the law. All laws originate from a constitution. Constitutions attempt to assure the right use of state power by guiding rulers through ideals and constraining them through law. We want politics to be justified by right, not might.  In law, when there is a conflict, the courts hear the case and make a ruling. The Supreme Court hears cases that involve Constitutional law. The Supreme Court can and should void a law that violates the Constitution, in terms of civil rights, for example.

In the case of gay marriage, only certain states allow marriage between two people of the same sex. Other states refuse to recognize the couple as legitimate. The constitution states that every state has to recognize each other’s legal documents, such as marriage licenses and birth certificates. For instance, I was born in Virginia, and then moved to Ohio. Ohio can not rule that I was not born, even though I have a birth certificate, based on that I was not born in Ohio. Likewise, if I marry in the state of Ohio, and I travel to Michigan, I am still married and Michigan must recognize my marriage license. Unfortunately, if I was a lesbian and married my partner in the state of New York, and moved to Ohio, my marriage is not recognized as a legitimate marriage.  There is a disconnect between state policy and Constitutional law. If this was in a court case, and the Supreme Court was ruling, there would be several reasons to rule in favor of not changing current state laws to recognize gay marriage licenses from other states. They include, but are not limited to the following reasons: strict interpretation with Framer’s intent, tradition, and strict scrutiny. There are flaws in all of these reasons. If the Court did rule on such a case, the Court should not follow these theories. They should rule in a way to move the law forward.

            A perspective of strict interpretation is that we should interpret the constitution using what the Framers of the constitution intended. The Framer’s had a purpose while writing the constitution. They wrote vaguely, yet with a common idea in mind. One way to interpret the constitution is to look towards their intent, and rule accordingly. However, there are a few issues with this interpretation. Firstly, we do not know who all the framers were.  There are those who wrote the constitution, those who brought up the need for amendments, those wrote the amendments, and the list can continue on. Secondly, obviously there are many. Chances are they did not agree one hundred percent with each other. So which framer’s opinion do we listen to? The one whose thoughts coincide with our more favorable ruling? One cannot read minds to know exactly their thoughts on the matter, how it relates to the constitution or what they were envisioning while writing it. Furthermore, their thoughts and what they envisioned at the time may change over time, once they start to know the facts since then. For instance, with slavery, they did not intend originally, for the most part, on freeing slaves in the south. Maybe after time, like others in the country, their thoughts and intentions would change. Even if the framers would disagree with abolishing slavery, today we understand how immoral it would be to not. In the case of gay marriage, they were not thinking of marriage as man and wife, as well as man and man, wife and wife. Yet, to deny citizens their rights is still immoral, regardless if framers intent agrees or disagrees.

            Another way to look at the constitution, in a more loose interpretation, is through tradition. There are unwritten laws in the constitution in the form of tradition. There is an idea that the Court should rule in favor of tradition. However, traditions can change. If the tradition changes in society, interpretation should as well. Back when the Framers were working, the concept of marriage and the tradition were different than they are now. Divorces did not occur, especially to the extent they do now. There was one man and one woman. The woman stayed home while the man worked. But the tradition and concept of marriage have changed, and are currently changing even more so. Now, there are divorces. There are men who stay home while the woman makes the income. There are single parent families, another occurrence not common in the Framers time period. The interpretation should change as well.

Gay marriage is not fully accepted by all this new form of marriage. Therefore, getting a rulings to interpret loosely and have gay marriages recognized as a legitimate marriage in all fifty states would be difficult due to strict scrutiny. The courts also base decisions on whether ruling in a certain way may cause more harm than good. In the case of gay marriage, to rule in the favor of making it a legally recognized marriage, there may be an increase on violence against homosexuals. But at the same time, should one let violence stop them from pursuing morality and equality? When new ideas about slavery came about, so did changes in law; but not all agreed. Groups such as the Klu Klux Klan lashed out at African Americans, but the law still progressed forward while holding the KKK accountable for their crimes. Likewise, in the instance of same sex marriage, the law should move forward, holding those who act out their disagreements accountable.

            There are several ways of interpreting the constitution and several reasons why. A few, like tradition and Framer’s intent, may slow down the process of change, as well as other aspects of the legal system not mentioned earlier (i.e. Article V). Strict scrutiny can as well, but usually for a good cause, like minimizing harm. However, at a certain point, these theories should be set aside for a change. These played a role in the time of slavery as well; still, there was a moral obligation to ensure African Americans their rights. Presently there is a moral obligation to ensure homosexuals their rights.