Who Wins The Struggle For Marriage Equality?

After two days of arguments on issues concerning gay marriage rights: Defense of Marriage Act case (United States v. Windsor) and Proposition 8 case (Hollingsworth v. Perry), the United States Supreme Court is set to deliver its landmark decision on the constitutionality or otherwise of same sex marriage, as with most controversial cases, in June. The crux of the issue as far as the Defence of Marriage Act (DOMA) is concerned, is whether Section 3 of the law which defines marriage as a legal union between one man and one woman, discriminates on grounds of sexual orientation. If the United States Supreme Court strikes down the challenged part of the law, married same-sex couples in states allowing same sex marriage would start to receive federal benefits which include certain tax breaks for married folks and social security benefits. These benefits have hitherto been accessible only to heterosexual couples regardless of the states police power to regulate marriage. No matter which way the court rules, whether or not it declares the part of the challenged law unconstitutional as discrimination under the equal protection clause of the 14th amendment, the debate over the legality, morality and practicability of same sex marriages wouldn’t be fading any time soon. Infact it might be safe to say that the traditional meaning of marriage as we all know it is about to be redefined.

Even though, a partial victory for gay rights activists seems more likely than the sweeping declaration of same-sex marriage rights they had hoped for, legal experts say that gay marriage has won the debate. This is evidenced by numerous shifting in positions observed over a period of time. In the past years, the percentage of Americans who support same sex unions have increased dramatically. According to a recent survey by the Pew Research Center, 1 in 7 American adults say their initial opposition to same-sex marriage has turned to support. A decade ago, just 27% of Americans backed same-sex marriage; today it is a clear majority. Already nine states (Connecticut, Iowa, Maine, Maryland, Massachusetts, New Hampshire, New York, Vermont and Washington) plus the District of Columbia recognize same sex marriages. If the ban on Proposition 8 is lifted, California will join the list. Other states are not left out as legislative efforts to legalize gay marriages are underway in Illinois, Minnesota, Rhode Island and Delaware. Gay rights activists in states like Oregon and Nevada are mounting pressure for an overturn on gay marriage.

Even the politicians are not left out of the fray. In recent times, both the conservative and liberal lawmakers have come out in support of gay unions. The president during his last campaign stated categorically that he supported gay marriages, Bill Clinton regretted passing the DOMA law in 1996 and calls upon the Supreme Court to undo this grievous mistake, his wife, Hilary has joined the bandwagon and like a wildfire, the same sentiments echo across generational and ideological divides. According to CNN, a majority of Republicans under age 50 now support same sex marriages including more than 60% of evangelicals under 30.

As the good book says, “there’s nothing new under the sun”. There was once upon a time when slavery, segregation, separate but equal rules, anti miscegenation laws (forbidding interracial marriages) and anti abortion sentiments were legally protected. One after the other, the practices all crumbled, brought to the fore front of the battle by some diehard human rights activists who insisted that the Declaration of Independence applied to every living being regardless of creed, colour or race. It’s indeed noteworthy to point out the sexual orientation was never mentioned as a criterion for judging acceptance.

The Supreme Court was instrumental in overturning these draconian laws even if they had earlier on been complicit in establishing the laws and the practice thereof. Although legal slavery ended with civil war, in the Dred Scott Case of 1857, it was ruled that African Americans were to be regarded as chattel and could not therefore possess any rights that belong to human beings. Even when the 13th, 14th and the 15th amendments which were supposed to abrogate the practice were passed, the courts deliberately gave the laws very strict construction and narrow interpretation which did nothing but further confine the blacks to discrimination. The 1896 case of Plessy v Ferguson accentuated the then prevalent system of separate but equal, when the Supreme Court approved a Louisiana apartheid system of separate railcars for blacks and white. The separate but equal system was one in which though both races were equally protected under the equal protection clause of the 14th amendment in the sense that although all persons are equal before the law, the administration of the said laws were to be done differently. This included housing, school systems, transportation, trading and even military service. The tide however began to turn in 1954 when the Supreme Court in Brown v Board of Education unanimously threw out state sponsored segregation. The opinion of the Warren Court was that the doctrine of separate but equal had no place in the public education in particular and the country in general, thereby effectively overruling the Plessy case for all intents and purposes. Years after this landmark decision, the public backlash continued with riots and demonstrations staged by protesting white folks. The debate continued for much of the 60’s until it gradually became clear to all and sundry that the laws were there to stay.

As recently as 1967, the Court held in Loving v Virginia that anti miscegenation laws were racist laws which had been enacted to perpetuate white supremacy and that the freedom to marry a person of another race resides solely with the individual and not the state. In 1965 the court held that married couples have a right to use contraception. This right was further extended to unmarried couples using contraception and in 1973, the Supreme Court in the celebrated case of Roe v. Wade invoked the right to privacy under the due process clause of the 14th amendment in legalizing abortion albeit with two provisos of preservation of prenatal life and protection of maternal health. The debate rages on to this day and has shaped much of national policies in a very crucial way delineating the country into pro life and pro choice camps.

Coming home further, there was once upon a time when same sex behavior was considered deviant and was thus criminalized. Infact homosexuality was until the 70s considered a mental sickness. In 1986 in Bowers v Hardwick, the Supreme Court upheld the conviction of a Georgia man for having consensual sex with another man. This was later overturned by the same Supreme Court in 2003 in Lawrence v Texas. The Court’s decision was that gay people could no longer be prosecuted for consensual sexual behavior. In a bid to protect conservatives states from being forced to recognize the validity of gay marriages conducted in other states, the Congress passed the DOMA in 1996 which stipulates inter alia that no state would have to recognize a same-sex marriage carried out in another state and further defined marriage as the union of one man and one woman for the purposes of federal laws. Subsequent attempts to pass an amendment of the Constitution to define marriage as a heterosexual union in 2004 and 2006 were futile. The attempt was based on the fear that DOMA could easily be repealed by a more liberal court, a fear which in the light of matters arising, seems rightly founded.

The inevitable journey to the apex court of the land as far as gay marriage is concerned, started in the 2008 case of Perry v. Schwarzenegger (now Hollingsworth v Perry) which challenged the constitutionality of Proposition 8, the California referendum that overturned the state Supreme Court decision a

llowing same-sex couples to marry. On appeal, Proposition 8 which amended the state constitution to allow only opposite-sex couples to marry was deemed unconstitutional. Citing Loving v Virginia, the court was of the opinion that the right to marry protects an individual’s choice of marital partner regardless of gender.

So once again we have come full circle. Just like abortion and contraception, much of the opponents’ debate revolving around gay unions has moralistic undertones. Homosexuality is still considered anathema to the world’s three biggest religions. As for the proponents, this has little or nothing to do with religion and everything to do with human rights, the inalienable right to marry a person of their choice irrespective of gender. For others, it has more to do with matters of the heart, a person being free to love and to be loved in return regardless of gender. And yet some regard this issue as simply the evolution of society, just like how man evolved from homo habilis to homo erectus to homo sapiens and finally to man. It was bound to happen, they say.

Once upon a time, slavery, segregation, separate but equal system of governance, anti miscegenation and anti abortion were all legally protected. Today, they are all legally proscribed. Will gay marriage make the list of protection or proscription? Only June will tell.

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