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I hate the title of this post but I can’t think of anything better as it really does pertain to gays and lesbians being able to wed. I prefer the term “marriage equality” because that is what we are really asking for.

I found a website where legal experts have given their opinion on which way the US Supreme Court would go if a challenge to DOMA or California’s Prop 8 ever gets to that level. It seems that most of the legal experts say that, in their opinion, the court would declare both to be unconstitutional and then the experts explain why. The explanations were enlightening to say the least.

One of the writers pointed out that the US Supreme Court had already ruled that marriage is a fundamental right under the United States Constitution. He then listed some of the weak arguments against same-sex marriage:

  • Marriage is defined as between a man and a woman. This is a definition and not a legal argument. Marriage could easily be defined as a committed relationship between two adults in a loving relationship with the ritual of the marriage ceremony, exchanging of vows, and receiving the exactly the same benefits;
  • Marriage is about procreation. We know that people get married today without any hope of having children. Some just can’t have children for medical reasons and there are many couples who have, for their reasons, decided not to have any. Some in their 50s, 60s and older get married for companionship. Are these marriages any less valid? The answer is no. It’s a silly argument and, to add to this, many same-sex families do have children through adoption, surrogacy, or artificial insemination so I hope you understand why this argument just doesn’t hold water;
  • Children respond better with two parents of the opposite sex. This just isn’t true. Nanette Gartrell, a professor of psychiatry, and Henry Bos, a behavioural scientist, conducted a study in which they found “children in lesbian homes scored higher than kids in straight families on psychological measures of self-esteem and confidence, did better academically and were less likely to have behavioural problems, such as rule-breaking and aggression.” According to the American Academy of Pediatrics “Research comparing children raised by homosexual parents to children raised by heterosexual parents has found no developmental differences in intelligence, psychological adjustment, social adjustment, or peer popularity between them;”
  • It will weaken the institution of marriage. This is mentioned over and over again but it’s never explained just how same-sex marriages will weaken the institution of marriage. If anything it will reinforce the importance of marriage as a basic social institution. In Canada, where we’ve had marriage equality for 6 years, the institution has been not been weakened in any way; and
  • The courts should stay out of legislator’s business. If anything it’s the courts job to watch over the law makers to ensure what they are doing is in accordance to the constitution. The Supreme Court struck down laws prohibiting interracial marriage and it could declare unconstitutional any law prohibiting same-sex marriage.

One very important point raised in the third link below is that courts can’t really alter laws, they can only rule on whether they are constitutional or not. Legislators are the ones who have to make the laws fit both the constitution and the people they represent. For example, state legislatures, to my knowledge, who have made marriage equality into law in their states have all acknowledged and accommodated freedom of religion concerns to some extent. Religion centres such as churches, synagogues, etc are not required to provide same-sex marriage services. However, as some businesses have found out, opening their doors to the public means ALL the public. It doesn’t matter what their religious beliefs are, discrimination because of sexual orientation is just not allowed.

Just a side note: Some of the Republican Party presidential hopefuls have vowed to make marriage between a man and a woman a constitutional amendment. Let’s look at what this means. As president they’d have to have two thirds of both houses to propose this amendment and then get three quarters of the state legislatures to approve it. I’d wish them luck but I wouldn’t mean it.

Teresa

Links:

The time for marriage equality has finally arrived
Ewrin Chemerinsky, Dean and Professor of Law at University of California, Irvine, predicts a narrow same-sex victory at the Court.

Time magazine – Study: Children of Lesbians May Do Better Than Their Peers

Same-sex marriage and religious liberty
Thomas C. Berg, Professor of Law and Public Policy at the University of St. Thomas, discusses potential conflicts between same-sex marriage and religious liberty, and why legislatures may do a better job than courts of balancing these two rights.