Since the ratification of Same-Sex Marriage in New York, advocates of Gay-Marriage are asking the State of New Jersey to do the same and once again we are revisiting the debates that continue to hunt the political atmosphere for more than a decade. While some consider the issue of Gay marriage a taboo based on their personal Christian or Evangelical beliefs, others want a full recognition of Same-Sex Marriage at both State and Federal level.

The purpose here is not to advocate for any form of marriage but rather, to look at the issue of Same-Sex Marriage from three important controversial blocks to Gay Marriage, that have dominated political discourse whenever the issue comes up. The idea is to look at the constitutionality of Same-Sex Marriage, the politics of Same-Sex Marriage, and the possible debates over Same-Sex Marriage under the Equal Protection Clause of the 14th Amendment to the U.S. Constitution.

Under the Defense of Marriage Act (DOMA) Pub.L. 104-199, 110 Stat. 2419, which was enacted on September 21, 1996, Federal Law defines marriage as a union between a man and a woman and clearly states that no U.S. state or other political subdivision, may be required to recognize as a marriage a Same-Sex relationship considered a marriage in another state. Many have criticized the law as an attempt to recognize only the well known established institution of marriage or heterosexual relations, while at the same time discriminating against Gays and Lesbians.

Advocates of Same-Sex Marriage, want DOMA declared unconstitutional because the law discriminates against Same-Sex couples and also that it violates the equal protection guarantees of the 14th Amendment. The law as it stands excludes Same-Sex couples from Federal Rights such as; survivor benefits from Social Security, family insurance benefits, and joint-tax filings which traditionally is open to heterosexual couples.

So far, some states have declared the law unconstitutional including Massachusetts and California in a bankruptcy ruling. The current U.S. administration has called certain sections of the law unconstitutional while both Houses have indicated they would defend the law on behalf of the Federal government. One issue of debate concerns how constitutionally sound is the law? Will it ever pass constitutional muster if the law finds its way before the Supreme Court?

On February 23, 2011, U.S. Attorney General Eric Holder along with President Obama indicated their conclusion that “a more heightened standard of scrutiny” is required for sexuality based classification and therefore, that section 3 of DOMA is unconstitutional. So far, the Supreme Court is refusing to take up the case of Same-Sex Marriage and no Federal Court of appeals has struck down the law for if one were to do so, the U.S. Supreme Court may review the case so, where do we go from here? Some are already indicating that the fate of the Defense of Marriage Act, could hinge on who wins the election in 2012.

Equal protection arguments over the controversy surrounding gay marriage centers mainly on whether laws against Same-Sex Marriage deny gays and lesbians the equal rights that are guaranteed to every citizen of the United States irrespective, of race, color, national origin and sexual orientation. Key issue: Does Equal Protection Clause of the 14th Amendment guarantee gays and lesbians the right to marry?

Since 2003, many states have ratified Same-Sex Marriage on Equal Protection grounds. On February 12, 2004, the Mayor of San Francisco Gavin Newsom ordered the issue of marriage licenses to gay and lesbian couples willing to marry; soon after, the controversy became a national debate as supporters of the traditional establishment of marriage fought in court to strike down the Mayor’s decision. In 2008, a measure restricting marriage to heterosexual couples only, was put to a vote which narrowly passed by 52%-48%. But on February 7, 2012, a California Appeals Court declared the law unconstitutional.

Since the initiative, many states including Vermont, Iowa and the latest New York have legalized gay marriage; nationwide the push and advocacy for gay marriage continues and it is unlikely to stop. Many in support are of the view that more judges are leaning towards the defense of Same-Sex Marriage while those campaigning for the established institution of marriage, claim the issue of gay marriage and the current decisions by the courts are a form of tactical judicial activism, whereby, judges rather than being independent, are ruling in support of gay marriage for political gains. They believe such decisions should be left to elected officials and voters rather than to the courts.

Proponents and supporters of gay marriage believe the ultimate victory will come only when Same-Sex Marriage is recognized at the Federal level; they claim gays and lesbians have the right to marry as part of the dictates of the 14th Amendment. Equal Protection under the 14th Amendment defines marriage as a civil as well as religious institution. It gives married couples many Federal benefits which advocates of gay marriage want extended to gays and lesbians; on the other hand, opponents of gay marriage claim there is a legitimate rational basis for limiting marriage to heterosexual couples.

Whatever the case, the point is that current legal classification based on sexual orientation, are subjected only to rational basis scrutiny. The question many including the Obama administration are asking is shouldn’t there be a stricter scrutiny of classifications based on sexual orientation? And isn’t it fair to conclude gays and lesbians are excluded from the equal protection guarantees of the 14th Amendment? And should gay and lesbian controversy continue to be politicized rather than being considered a civil rights issue? Or is it fair to say the founders, did not envision gay marriage when they wrote the Equal Protection Clause which therefore, makes the clause necessary for review?

Finally, the politics surrounding Same-Sex Marriage, continues to dominate current debates; some candidates are dodging questions on gay issues while some give vague answers that don’t actually reveal their stance on Same-Sex Marriage; some go as far as giving answers that will only score votes and help win office. The question is why politicize gay marriage when it is considered a private matter? What about the argument that gay marriage is a matter of choice and one’s sexual orientation should not be a business for the government to decide? Does the government really have a compelling interest to define the institution of marriage as one between a man and a woman?

Irrespective, of the various views, the fact is that the Republican Party Platform wholly endorsed DOMA and supports the traditional definition of marriage as the legal union of one man and one woman; and believes the Federal judges and lobbyist should not force states to recognize other kinds of marriages. The Democrats on the other hand, have called for the total repeal of DOMA and want it declared unconstitutional. The Justice Department headed by the Attorney General, Eric Holder has made it clear it would cease defending section 3 of the Act.

The issue of Same-Sex Marriage will continue to be a part of American politics and political debate as long as Congress lacks the political will and courage to put the issue to rest once and for all, based on equal protection standards. The question of whether the institution of marriage should be redefined is a difficult one to answer; however, there may be a need for a constitutional review and a judicial interpretation of the meaning of equal protection under the 14th Amendment.

Dr. Adeyemi Oshunrinade [E. JD] is a writer and published author; an expert in general law, foreign relations, and the United Nations.

Categories: LAW

Tags: Constitutionality of gay marriage, Defense of Marriage Act, Gay Marriage, Gay Marriage and Equal protection Clause, Politics of gay marriage, Same-Sex Marriage