Is Gay Marriage A Human Right Or A State Right?

Is Gay Marriage A Human Right Or A State Right?

The question I ask in the title of this Hub gets directly to the heart of the gay marriage debate. I have been somewhat reluctant to address this issue in the past. My views on gay marriage have been evolving over time similarly to President Barack Obama. I am a heterosexual male who grew up in a traditional Protestant household. The values that I was inculcated with from an early age were socially conservative. They have changed greatly over the years but I still had doubts about the extension of marriage to same sex couples until only recently. I felt that "civil union" laws would suffice in satisfying Gay Americans by ensuring their rights and benefits in our society. This view was very myopic in retrospect and missed the key point of the entire debate.

Gay rights activists see their quest for the right to marry as a basic human right. Their goals are at their heart no different than the civil rights or the women rights movements. I formerly saw the issue as simply one of equal benefits under the law while still restricting the title of marriage to heterosexual couples. The United States Supreme Court will rule on two important cases pertaining to this issue sometime this year.

I will begin this article by describing the two cases being argued before the Court. After this I will present the state rights argument followed by the human rights case. Finally I will attempt to synthesize the cases and the arguments while revealing my viewpoint on this issue and how I arrived at it.

The two cases before the United States Supreme Court address different aspects of the gay marriage debate. One case is United States v. Windsor which challenges part of the Defense of Marriage Act (DOMA) that the United States Congress passed in 1996. This law recognizes marriage to be only between a man and a woman for the purposes of federal employee benefits and programs.

Edith Windsor inherited property from the woman she married in Canada in 2007. The United States Internal Revenue Service did not recognize this marriage due to DOMA and assessed Ms. Windsor $360,000 in inheritance taxes. A legal spouse would not be liable for this tax. The United States Court of Appeals in New York struck down the DOMA inheritance tax ruling in favor of Ms. Windsor. United States House of Representatives Republicans stepped in to defend the DOMA law when the Obama Administration refused to do so. They brought this case to the Supreme Court and it was accepted by them.

The second case being presented is Hollingsworth v. Perry. This case was brought to oppose California Proposition 8, narrowly approved by California voters, which vacated the California Supreme Court's decision to allow gay marriages. Ted Olson and David Boies, opposing lead lawyers in the 2000 Bush v. Gore case filed this lawsuit against Proposition 8 in 2009.

In May of 2009, the Alameda County Clerk Registrar denied a marriage license to Kristen Perry and Sandra Steir on the grounds that they violated California's Proposition 8 law that prevents same sex marriages. Olson and Boies took their case and advanced it to the United States Court of Appeals for the Ninth Circuit. Both Governors Arnold Schwarzenegger and Jerry Brown refused to defend this law. The ProtectMarriage.com group led by Dennis Hollingsworth took up the defense of Proposition 8 in this case.

The United States District Court of Northern California ruled that Proposition 8 violated the Fourteenth Amendment's Due Process and Equal Protection clauses during August 2010. The Ninth Circuit upheld this ruling on February 7, 2012. The U.S. Supreme Court agreed to hear this case on December 7, 2012 along with the aforementioned DOMA case.

Now that we understand what the origins and natures of the two cases before the Supreme Court are, I would like to describe the states rights case in this gay marriage debate. The DOMA case may actually be the prime example of an encroachment on states rights even though it is in opposition to same sex marriage.

DOMA is federal legislation that the Congress passed with President Bill Clinton's signature. The political climate of the time was much more socially conservative in regards to gay rights. I believe this legislation was a political pandering attempt aimed at their own political bases. Historically, the definition and administration of marriage has been a state and local issue. These Congressional leaders felt the need to make their voices known on this issue. The states rights question is whether this federal law usurps state laws that allow gay marriage. The human rights question will also weigh in but I will address this later.

The California Proposition 8 case is the more classic example of arguing for states rights over human rights. The people of California voted for the prohibition of gay marriages by a narrow margin in 2008. The question then arose as to whether this proposition was constitutional or a violation of the human rights of homosexuals in California. The U.S. Supreme Court will rule on this case later in 2013. They may make a definitive decision on this matter or they may make a narrower procedural decision which would leave this Constitutional question in limbo for the time being.

The human rights question is clear and the same with both cases in my opinion. Both of these laws ban gay marriage in some or all aspects. Is this a basic human right protected by the Bill of Rights in our Constitution or is it a state right? States and localities have always been the responsible jurisdictions for issuing marriage licenses and instituting the criteria that a couple must meet to obtain one. These criteria have always been quite limited. No State sanctions polygamy. Blood tests are a thing of the past in most states.

Laws against interracial marriage were ruled unconstitutional by the U.S. Supreme Court in the 1960's. Now gay marriage is on the Court's docket. They have been historically slow in overturning state laws in favor of human rights. An issue of this sort needs to have been brewing for many years with a considerable wave change in public opinion for the Court to rule a state law unconstitutional. The Supreme Court ruled that miscegnation laws barring interracial marriages were unconstitutional only after the Civil Rights movement was in high gear and public opinion had shifted. These laws were a century old before the Supreme Court took them on. The question now arises as to whether the gay marriage issue has matured to a point in our national debate where the Court will overrule state law in favor of human rights.

As I stated in the introduction of this Hub, my view on the gay marriage debate has greatly evolved. I originally felt that marriage was exclusively a heterosexual institution though homosexual couples deserved the same benefits and advantages. This viewpoint was enshrined by most states within their own laws. The LGBT (Lesbian Gay Bisexual Transgender) movement grew and as their arguments and reasonings became more clear to me, I began to change my perspective. I most definitely see the parallels between the Civil Rights movement and the LGBT movement. This includes the gay marriage question.

Most of our civil rights laws have easily been expanded to include gay individuals. Why should gay marriage not be included? Religious institutions have the autonomy and the right to decide this issue within their own auspices. That is fair and within our "separation of church and state" inference within the First Amendment of our Bill of Rights. The Declaration of Independence states "We hold these truths to be self evident, that all men are created equal, that they are endowed by their Creator with certain inalienable rights, that among these are, life, liberty, and the pursuit of happiness".

I now believe that governmental entities should be required to perform gay marriages as an expanded part of the 1964 Civil Rights Act. This action would be an appropriate satisfaction of the Declaration of Independence clause that I just quoted. Human rights have overwhelmingly superceded states rights though it often takes many years for these rights to become fully absorbed into our body of laws by our judicial system. The United States Supreme Court may be near the stage where they take this significant judicial step to legalize gay marriage. Several states have already done so and there are now serious questions regarding the status of these marriages across state borders.

The time has clearly arrived for the Supreme Court to act on this divisive issue. The probability is that it will be a close vote due to the sharp divide on the Court between liberal and conservative interpreters of the Constitution. My hope is that our national debate has swung enough in favor of gay marriage for the Justices to feel confident in choosing the human rights view over the states rights option. This view is historically consistent and I feel it is also an inevitable outcome. If not this term, then during a future session.

All heterosexual and homosexual people are created equal if I may change some words from the Declaration of Independence without changing the true meaning of that landmark document. Gay couples are due the equal protection that our Fourteenth Amendment affords all American citizens. I believe that the time is now for the United States Supreme Court to legalize gay marriage. Not only for the reasons I have just stated but simply for the common decency that all Americans should be afforded.

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Comments 99 comments

diogenes profile image

diogenes 3 years ago from UK and Mexico

We are told we have to respect homosexuals and not criticize them. I do not think about them or their idiotic desire to get "married," an institution that is doubtful for people of any sexual persuasion. Perhaps they should only be allowed to legally marry if they adopt; marriage is, afer all, a union that basically supports children's security.

I just wish the media would leave them out of my living room.

Bob


HSchneider 3 years ago from Parsippany, New Jersey Author

We are told to respect homosexuals as we respect others. No more or no less. We certainly may criticize them as we criticize others. I am not sure that marriage is simply a union to protect children's security. It is a man made institution probably created to promote stability in society. The media, as always, will leave this subject alone when it becomes routine and not controversial. Thank you for your comments, Bob.


Chuck Field profile image

Chuck Field 3 years ago

Despite what the churches teach, homosexuality is a common and uncontrolled manifestation of nature. It is occurring naturally all the time. Suppose, men were denied basic rights because of the onset of erectile dysfunction? Another natural occurrence in nature… Some would argue that sex is an obligation within marriage. Should we prevent all men that can’t perform sex with the opposite gender the same rights and privileges as those who can? They would no longer get the tax benefits allowed by marriage. They would no longer be allowed to visit the ones they love in hospitals. They would not be allowed any government benefits which were incurred by their partners… No… It is immoral and unethical to prohibit the extension of rights and privileges, because religious doctrine from thousands of years ago dictates such attitudes and to say that you don’t want to see it in your living room, typifies the attitude which lacks empathy, openness and acceptance of all the diversity that humanity has to offer us.


Borsia profile image

Borsia 3 years ago from Currently, Philippines

To me it is extremely simple.

All citizens have the same rights under the Constitution regardless of their sexual, racial, gender, etc.

The day the government issued the first marriage license getting that license became a right. It became even more engrained when things like tax forms began giving different rates for married vs single and increased when the recognition of marriage became involved in things like hospital visitation and finally when the law became a part of marriage and divorce.

All that said it is against the Constitution to deny this right to any group. Therefore any couple of consenting adults has the inalienable right to get married if they so desire.


HSchneider 3 years ago from Parsippany, New Jersey Author

Homosexuality is an incontrolled manifestation of nature. No one should be denied rights and benefits because of it. You make excellent points, Chuck. These are outdated and ignorant views from a bygone time. Thank you for your elucidating comments.


HSchneider 3 years ago from Parsippany, New Jersey Author

I totally agree with you, Borsia. Gay marriage is a human right. If you deny this to gay couples, you must deny them to all. Hopefully the Supreme Court sees the same thing in your logic. Thank you for your comments.


Ericdierker profile image

Ericdierker 3 years ago from Spring Valley, CA. U.S.A.

Very helpful hub. I think we need another decade or so of states deciding for themselves. If we look at it the otherway, it would mean that the political elite in the national capital would decide for Wyoming and California the same. As a state right the people decide.


HSchneider 3 years ago from Parsippany, New Jersey Author

The Supreme Court has a couple of opportunities to "kick the can down the road". One, they may rule DOMA unconstitutional because it is a state function. Two, they may rule narrowly vote for the States in the California case. This way they wait for public opinion to foment more and they also leave the question open. Thank you for your comments, Eric.


MobyWho profile image

MobyWho 3 years ago from Burlington VT

I hate to see this problem drag on...and I cry for the number of people at this date who must miss out, not only on equal rights, but also on living out their lives unable to share in the 'privileges' of marriage (hospital visiting to name one). Nowhere in this debate are hormones and chromosomes considered. Whatever happened to 'born that way'. Thanks for sharing your views which mirror mine; same upbringing by the way.


Ericdierker profile image

Ericdierker 3 years ago from Spring Valley, CA. U.S.A.

MobyWho, I am sorry but a firm foundation in law and constitutionality like a fine wine as yourself, it may well take all of your four decades to matue. We want instant, but true beauty and right takes time. I think we are doing well.


HSchneider 3 years ago from Parsippany, New Jersey Author

Thank you for your wise comments,MobyWho. I do hope the Supreme Court acts on this issue and legalizes gay marriage sooner rather than later. I think they will pass vague decisions leaving this issue unsolved for now. I agree that it is a shame that gay couples are left blowing in the wind right now. I do think they will strike down DOMA.


HSchneider 3 years ago from Parsippany, New Jersey Author

I hope they legalize gay marriage within a decade or sooner, Eric. I agree that it may be that not enough states have passed this legislation and they will be deterred from acting. Forty years would be way too long in my opinion.


Ericdierker profile image

Ericdierker 3 years ago from Spring Valley, CA. U.S.A.

I agree. But I am old and accept time as a reconciler of grievance.

May God bless our path and enlighten us as to righteousness today.


HSchneider 3 years ago from Parsippany, New Jersey Author

We will see, Eric. The decisions will probably be among the last the Court issues. Probably around June 2013.


MobyWho profile image

MobyWho 3 years ago from Burlington VT

Hi Eric - at four decades, I was 40; at eight decades, I was 80 - and still pumping blood. I'm putting myself in the shoes of older gay couples who will die before they are accepted. My spouse (male) is 93 and we both feel for couples our age who will never see equality. How frustrating! Why should kindness be delayed?


Ericdierker profile image

Ericdierker 3 years ago from Spring Valley, CA. U.S.A.

If we look to a law or others for our equality we will never be fulfilled. I hope no law dictates where my love and kindness goes. I note with some glee the boy scouts are reevaluating. I know that in my congregation the youth are completely accepting. And I see the National Cathedral performing the rites without discrimination. And we have a President with a kinder view. I hope we continue to progress.


MobyWho profile image

MobyWho 3 years ago from Burlington VT

We are on the same page. Thanks for clarifying.


HSchneider 3 years ago from Parsippany, New Jersey Author

It is a shame that this kindness and justice is delayed. it is also a shame that some will never know this joy. The force of history is on the side of these gay couples. I do not think it will take too long but maybe not this year. The younger generations are most definitely way ahead of us on this subject and many others regarding equality. It makes me hopeful. Thank you MobyWho and Eric for your excellent dialogue regarding this issue.


howtolearnmore profile image

howtolearnmore 3 years ago from Tartu

One question: who decided what human rights are?


HSchneider 3 years ago from Parsippany, New Jersey Author

The Congress and the President passed the 1964 Civil Rights Act in 1964 and it has never been overturned by the Supreme Court. The 14th Amendment gives everyone equal protection under the law and it has not been repealed. I believe these can easily be extended to gay individuals and thus gay marriage. Thank you for your question, howtolearnmore.


howtolearnmore profile image

howtolearnmore 3 years ago from Tartu

Thank you for replying, HSchneider

But can marriage be considered a right? Why is not taking drugs a right? Or prostitution?


HSchneider 3 years ago from Parsippany, New Jersey Author

Then I would ask you, is marriage a right? Most people would say yes but not all. If you say yes, then I do not believe you can deny it to homosexual couples. Our Bill of Rights, including the 14th amendment, gives us equal protection under the law. Thus, I feel this conveys the protection to marry for all couples including gay couples. Taking illegal drugs and prostitution are banned for everyone so do not fall under the 14th amendment.


howtolearnmore profile image

howtolearnmore 3 years ago from Tartu

But if I understand correctly, there was a time when gay marriage was banned in all states, right? Forgive me if i'm wrong here, then according to your last sentence "Taking illegal drugs and prostitution are banned for everyone so do not fall under the 14th amendment," gay marriage shouldn't also have fallen under the 14th amendment.


HSchneider 3 years ago from Parsippany, New Jersey Author

Yes, and now several states have legalized gay marriage. The Supreme Court now must decide if the equal protection clause applies. Especially since people move all the time. The Court eventually ruled against the miscegnation laws barring interracial marriages. I believe they will eventually do the same here. Maybe not this term but when the national debate reaches a tipping point. In actuality, human rights are conferred on people by people. Under your argument, we have no human rights. I agree with this but our Bill of Rights has these sections I enumerated in my Hub that would apply here. I am off to job right now but I will answer any other comments you have, later tonight or tomorrow morning. Thank you for the debate.


howtolearnmore profile image

howtolearnmore 3 years ago from Tartu

Thank you for the polite debate, sir! Have a good day!


HSchneider 3 years ago from Parsippany, New Jersey Author

You are very welcome, howtolearnmore. Any time. I enjoy good debates. That is where we learn and grow.


Ericdierker profile image

Ericdierker 3 years ago from Spring Valley, CA. U.S.A.

I have contemplated and studied. For our United States of America our forefathers made clear a mandate that all be treated equally under the law I speak not for religions. I speak not of my preference. But I find no legal reason that denial should be given these citizens. I wish that there were another "name" we could give their union. It is against my spiritual grain. But I dig deep and cannot deny a happiness and security given me to those who are different. If they are to struggle and strain and work hard on a love between two, who am I to preclude them from a dignity I am afforded. Society and Religion I hope you are not angry with me.


Chuck Field profile image

Chuck Field 3 years ago

Well said Eric... Bold thoughts spoken aloud are the random change in our cultural DNA. Some thoughts survive and become a common trait in our society and others do not. But if the thought is not shared, regardless of its intent, it can never be tested and we will never grow as a society.


HSchneider 3 years ago from Parsippany, New Jersey Author

I came from the same spiritual base and arrived at the same conclusion, Eric. I see no reason to deny gay couples the right to marry. Thank you for those comments.


HSchneider 3 years ago from Parsippany, New Jersey Author

Well said also to you, Chuck. More and more people have spoken up regarding this subject and opinions are changing quickly. More and more states are passing gay marriage statutes. Now we will see what the Supreme Court does. Thank you for your comments.


RavenBiker profile image

RavenBiker 3 years ago from Pittsburgh, PA.

Extremely well researched and articulated Hub (a rare occurrence here on Hubpages). It stuck to the facts and reveled in the spirit in which this nation was created---something everyone, especially those who are relegious, have enjoyed and taken for granted for over 200 years.

I thank you in the utmost!


HSchneider 3 years ago from Parsippany, New Jersey Author

Thank you very much for the very kind comments and compliments, RavenBiker. I appreciate it very much. This nation moves slowly in correcting injustices but the tide of history and public opinion do change and correct themselves. It is the magic of this country.


Sanxuary 3 years ago

Marriage is a status granted by Churches and Civil Unions are a State Right since all States Issue them and not the Federal Government. My opinion is Marriage or Civil Unions are an entitlement program and one all men should avoid since they are entitled nothing. Same sex couples will probably benefit most by the fact that no one will be entitled except maybe the Lawyers who our always entitled. We should just end the argument by banning all marriage and civil unions.


HSchneider 3 years ago from Parsippany, New Jersey Author

Thank you for your comments, Sanxuary. I have not given up on the institution of marriage quite yet.


Bibowen profile image

Bibowen 3 years ago

The state cannot grant a positive right to an immoral act. Acts of sodomy are contrary to nature and regardless of what euphemism your shroud it in, it's still an immoral act. No one has a "right" to act immorally and while the state may possess the power to grant such a right, it lacks the authority to do so.


HSchneider 3 years ago from Parsippany, New Jersey Author

You are entitled to your opinion, Bibowen, but I am stating that they have as much of a right to marry as any other couple. I am not discussing any immoral acts. Besides, that is a religious and spiritual assessment not a legal one. People have faith in religions and their tenets but they are personal and not binding on the rest of the citizenry. Religions and churches have the right not to marry gay couples. The government should not be discriminatory in this way.


Chuck Field profile image

Chuck Field 3 years ago

Bibowen, you make a good point. The state does provide a society with its rules, in the form of laws. Society is also responsible for the management of the state. It's with gratitude that I can say society has evolved past most of the archaic definitions for morals, that were placed on us through bronze age religion. Just as witch hunts and slavery were justified in the Bible, society evolved past those misguided archaic morals. Society will evolve and the rights of homosexuals will be granted, because no sex act between to consenting adults is immoral in an evolved culture. Two to Three thousand year old writings do not hold water as they once did, because as we become more intelligent as creatures of this earth, we are better able to discern right from wrong, truth from BS, and anyone who continues to cling to the old ways, will be identified more and more as the extremists and crackpots, just as KKK members are, when they belittle other races in most of our society today.


howtolearnmore profile image

howtolearnmore 3 years ago from Tartu

To Bibowen,

While I see your point, and I also find the thought of homosexual sex repulsive (not speaking as a religious person), there is one thing where I disagree with you. You can't really say that it is unnatural, because it happened on God's territory.

The thing about homosexuality is that... how to put it... it feels like they did not deserve equality. Let me explain: rights are not God-given. If God could give everyone rights, North Korean people would also be happy. In almost every country in the world, rights had to be fought for.

I don't see that here. I don't see LGBT have a leader, I don't see them bleeding and sweating. Television shows, musicians like Lady Gaga and tolerant TV moderators are doing the fighting for them.

Black people had MLK, Malcolm X. Americans had the founding fathers. Russians paid an enormous price in the World War 2 to not become slaves. But what did the LGBT movement do to be happy?


Borsia profile image

Borsia 3 years ago from Currently, Philippines

Bibowen; I'm not quite sure how you want to define "natural"?

Homosexuality occurs in most species of animal, bird and even reptiles, fish and invertebrates.

It undoubtedly occurred in man since we first walked on 2 feet and has been around long before the first religions were ever dreamt up.

Immoral? According to whom? Apparently according to your faith, but that means nothing to those outside of your faith. Just as other gods probably don't mean much to you, yours means just as little to others outside your faith.

I happen to be straight. But just as I was born straight and am attracted only to women, homosexuals are born with a natural attraction to their same sex. That doesn't make it unnatural or dirty and outside of some narrow views it isn't a sin to be different so long as one isn't trying to force another to take an active part in their activities.


HSchneider 3 years ago from Parsippany, New Jersey Author

Thank you for those comments, Chuck. Your response to Bibowen is better than I could have made.


HSchneider 3 years ago from Parsippany, New Jersey Author

I do not think that a group, in this case LGBT, has to have been out in the public square being beaten and bloodied. They have been protesting and their movement began largely after the Stonewall incident in New York City where some of them died. A Gay Rutgers student committed suicide after his roommate took photos secretly of he and his lover and posted them. Incidents such as these need not be the impetus to change our laws though. They often are but equality under the law should be.


HSchneider 3 years ago from Parsippany, New Jersey Author

Very well said, Borsia, and absolutely accurate. Thank you for your comments.


MobyWho profile image

MobyWho 3 years ago from Burlington VT

Great discussion - polite, on-point, and substantive - shows the importance of separation of church and state (n.b. small print), also the different viewpoints of religion and science.

What is to be gained is universal respect for others' mores as long as they cause no harm to an individual. When something causes apparent harm, we revert to 'law of the land' - and 'round and 'round we go.

@Borsia, I appreciate your usual calm comments...


HSchneider 3 years ago from Parsippany, New Jersey Author

Thank you MobyWho. The discussion here has been an excellent and enlightening one. Separation of church and state is vital to our nation and these debates are also.


howtolearnmore profile image

howtolearnmore 3 years ago from Tartu

Not sure whether the separation of church and state is possible, at least not in your country. Saying, "I'm not a Christian" already disqualifies you from running for higher office (and it doesn't matter whether you plan to bomb the living hell out of a country. As long as you say "I'm a Christian," everything is fine).

*Slightly off-topic. Sorry :)


HSchneider 3 years ago from Parsippany, New Jersey Author

Your point is well taken, howtolearnmore. It would be almost impossible for an Atheist or an Agnostic to become President. The point of a separation of church and state though is that no laws are supposed to be written where any government infringes on, prohibits, or promotes a particular religion. Our Supreme Court has generally enforced this separation. Thank you for your comments.


Ericdierker profile image

Ericdierker 3 years ago from Spring Valley, CA. U.S.A.

We must be tolerant that he Law fluctuates by the decade. Perhaps that is wrong or right.


HSchneider 3 years ago from Parsippany, New Jersey Author

The Law constantly changes with society. The Constitution was written to be elastic because the Founding Fathers intended it to be to adapt to changing times. Strict constructionists argue that it should remain in stone which goes against history and intent. Thank you for your comments, Eric.


howtolearnmore profile image

howtolearnmore 3 years ago from Tartu

Who decides how elastic the Constitution should be?


HSchneider 3 years ago from Parsippany, New Jersey Author

Our Supreme Court ultimately rules on the cases they accept and thus they are able to interpret the Constitution. They can stretch certain aspects as they fit or not. Thank you, howtolearnmore.


howtolearnmore profile image

howtolearnmore 3 years ago from Tartu

Thank you, Hschneider!

A few questions if I may (you, obviously, are a smart man):

1) When your government passed the Patriot Act and, correct me if I'm wrong, the NDAA, how did they interpret the Constitution?

2) Now if you already have two laws that are unconstitutional, how reliable is the judgement of your Supreme Court?


HSchneider 3 years ago from Parsippany, New Jersey Author

Many Americans are wondering the same thing, howtolearnmore. The Supreme Court is the final arbiter as to constitutionality but they are human beings with political and social leanings. They often claim differently but they do. I believe much of the Patriot Act and NDAA are unconstitutional. They were upheld under the guise of protecting America from another terrorist act. It is a slippery slope and is stripping our citizens of many of our rights. Our Constitutional system is far from perfect but most times eventually adjusts to the correct position. I hope future Courts will rule these laws unconstitutional. The one part of the Patriot Act that is excellent is the surveillance and reporting of offshore fund transfers. These were sheltering money and enabling terrorists. Thank you for your questions and comments.


Walt Kienia profile image

Walt Kienia 3 years ago from Hartford, Connecticut

It will be interesting to see the why's and how's of the Court's decision on these 2 cases.

Ms. Windsor's (a Betty White look-alike) case could cause the Court to invalidate DOMA, however, since the Act says that states are not required to recognize same-sex marriages from states where they are recognized,

while also stating that the definition of marriage is man/woman only within the scope of the federal government and its actions,

then individual states may still be able to define a legal marriage in any way they wish, while now having to recognize legal marriages from other states - invalidating DOMA will not change this.

In the 2nd case, we may see the Court question how much legal breathing room is given to citizen referendums, such as Prop 8. How much does the Court want to infringe on the voice of the people?

On a side note, whether you are gay, straight, or somewhere in between, I highly recommend the Olympia Dukakis movie, "Cloudburst;" a lesbian couple escape from their nursing home and head up to Canada to get married. Along the way, they pick up a young, male hitchhiker.

Extremely good movie.


HSchneider 3 years ago from Parsippany, New Jersey Author

Thank you for your, comments, Walt. Thanks also for the recommendation of that movie. I will have to check it out. The Windsor or DOMA case will most likely be a narrow case either upholding or invalidating DOMA. I believe and hope they strike DOMA down. It was a bipartisan pandering effort in the 1990's. You are quite correct that the Prop 8 case is the key one in possibly deciding this question. I certainly hope they uphold state decisions to recognize gay marriage. It would be a travesty not to. But will they go further? I doubt it but one never knows. We should all stay tuned. I know I will.


Anna Sternfeldt profile image

Anna Sternfeldt 3 years ago from Svenljunga, Sweden

Thanks for raising this important matter! All humans should have equal rights, we can't divide us into groups depending on who we love. It is all about fear, fear for what is different, blacks, women, gays, muslims. Stop being so afraid and let love fill your hearts, that is what I like to say.


HSchneider 3 years ago from Parsippany, New Jersey Author

I totally agree with you, Anna. Too often we separate people into different groups often out of fear. We need to stop this now. It is unproductive and hateful. Thank you for your comments, Anna.


MrsBrownsParlour profile image

MrsBrownsParlour 3 years ago from Chicagoland, Illinois

HSchneider--I greatly appreciate your perspective, approach, and dialogue. Thank you.


HSchneider 3 years ago from Parsippany, New Jersey Author

Thank you for your kind comments, MrsBrownsParlour.


cmccarty6687 profile image

cmccarty6687 3 years ago from Kentucky

This hub, as well as comments give me hope for our future. I would especially like to commend those of the "golden" generation that have expressed support for our gay brothers and sisters. I live in Kentucky a red state through and through and all of my older family and most you encounter here possess strongly conservative views (you can imagine the ridicule I receive as a young liberal). I do not get to see people from older generations showing this type of support or being open to evolving ideas and it is refreshing.

I also so much appreciate the questioning of the past rulings when it comes to separation of church and state. I tell people this all the time when they say "according to the Bible this is wrong". That is how you determine what is right or wrong but it is not how I do, nor how the government should. I want so badly to see the LGBT community gain this human right as I see it. I only hope, like some of you, it does not take 40 years, I hope it doesn't take 5 years


HSchneider 3 years ago from Parsippany, New Jersey Author

Thank you very much for your comments, Cmccarty. I believe many of my generation are slowly coming to our conclusions but it is a minority and not nearly in the large numbers that the younger generations have. I also believe that "separation of church and state" is a key provision of our Constitution. Many of these religious zealots rail against Muslim Sharia law but have no problem instituting Christian Fundamentalist law upon us. I find that this attitude is at the bottom of our polarized politics that is delaying important legislation.


Sanxuary 3 years ago

Technically marriage is performed by a church and a Civil Union is performed by the State. But who cares as long as you know that all of it is about money and Earthly desires. Life is always about choice, you know Heaven and Hell, Right and Wrong and all that non-sense. The desire to not be a robot gave you a choice here on Purgatory and I say enjoy your few moments here. Be an atheist, curse God because he has so much to do with this place and how it is turning out to be such a wonderful place. So what is after gay marriage more crap about how we do not understand it. We are so desensitized to sex today that we are giving pointers to the screen. So politically correct we can not keep up with the next correction, did we change another word to mean something else? Honestly, it got old a long time ago and we never got equality for all the other folks. I am still working on the whole race thing and wondering if people who believe in God are being persecuted by people like you. It seems that being a nasty person to believers of God is okay. You put them all in one basket and assume that they all believe the same things. I hate to inform you that your Government probably has no Leaders with any so called Christian values. I have no idea who the Christian right is or why any of them would donate money to these people. I honestly despise the fact that they claim they are supporting such values they do not have. I call that hypocrisy and we live in it every day. I am not even assuming a gay person is going to hell but I am not the translator, nor did I write the Bible. All I can tell you is that you have to figure it out on your own and its a long road if you do the work. Its not sitting in a pew, singing and blindly believing what you our told. You actually have to try and not live in hypocrisy. The only way I can ignore a load of stuff I really have no desire to even care about is to go back to my closet.


HSchneider 3 years ago from Parsippany, New Jersey Author

I agree that life is always about choice, Sanxuary. That is why I now believe that all couples should be allowed that choice. Governments may technically only perform civil unions but they use the term marriage and our society conveys that symbol on to it as well as the benefits that go along with it. Futhermore I am not putting everyone who believes in God in the same basket. I am putting those religious zealots that gather together and influence their political leaders to try to have their beliefs enshrined into our laws. This is not a majority of Christians but it is a very vocal and politically active minority. Thank you for your comments, Sanxuary.


Marquis profile image

Marquis 3 years ago from Ann Arbor, MI

Federal government should stay out of the affairs of the state. The people of each state should solve their own problems. This is what Washington and a few Founding Fathers were talking about when they did not trust a central government.


HSchneider 3 years ago from Parsippany, New Jersey Author

Then you are against DOMA which is a federal law against same sex marriage, Marquis. Our Founding Fathers were also very concerned with human rights. That is why they added the Bill of Rights to our Constitution. I believe that equality before the law trumps state laws. We will see how the Supreme Court decides. They are the final arbiter regarding these issues. Of course, they also are part of your hated federal government. Thank you for your comments.


MrsBrownsParlour profile image

MrsBrownsParlour 3 years ago from Chicagoland, Illinois

The question of which issues should be states' rights and which should be federal are at the core of constitutional debates. Central to these debates should be consideration of inter-state application, i.e. states having to recognize another state's laws. Driving licenses, for example, should not be too different and should have mutual recognition (as they do) because logically drivers will be crossing state borders. Gambling is one of the most diverse regulatory areas (with differences between gambling venues even within a state, such as between casino gambling, bingo, or lotteries) but this makes sense given that these venues are in fixed locations---not an "inter-state" issue (as opposed to online gambling). Marriage licenses, on the other hand, have national repercussions (tax codes, social security beneficiaries) and inter-state concerns (relocation to another state where one's marriage may not be recognized, or having an accident on vacation where access to one's spouse in hospital may be denied, etc.)...so I think it appropriate to be addressed at a federal level. The Framers of the Constitution threw out the Articles of Confederation in favor of a stronger central government because certain issues proved ineffective & chaotic when decentralized: http://en.wikipedia.org/wiki/Articles_of_Confedera...


HSchneider 3 years ago from Parsippany, New Jersey Author

You make a very good inter-state issue argument for this issue, MrsBrownsParlour. I believe that the human rights issue overrides this though. The interstate argument could cut both ways, for and against. I believe that gay marriage comes down to equal opportunity under the law. Thank you for your interesting added take on this serious subject.


MrsBrownsParlour profile image

MrsBrownsParlour 3 years ago from Chicagoland, Illinois

HSchneider---I actually agree with you wholeheartedly. It is a human rights and civil rights issue, and that is why I support "marriage equality" instead of "gay marriage". It is also a matter of church and state separation, as discussed above, by which I specifically mean that the licensing of domestic partners by the U.S. government should be blind to all demographics except legal adulthood and citizenship, while the sacred concept of marriage can continue to be honored within personal religious traditions. Semantically, I would be in support of government licensing under the name "civil union" exclusively, but since "marriage" has become secularized for a long time, it seems too revisionist to suggest taking it out of the secular sphere entirely...I simply feel that any civic privileges should be accessed equally, regardless of any qualification beyond adult citizenship. I'll tell you what the next big frontier of marriage will be after this gay marriage thing is settled---polyamory. The concept of government sanctifying a religious institution by arbitrarily extending social and financial privileges is antiquated. There is an inherent moralistic judgment of "worthiness" in many policies (such as with welfare) that has no place in a democratic, secular government. For those who say "America is founded on Christian values", I would invite you to carefully examine not just the church affiliations of the Founding Fathers, but the principle of religious tolerance that this country was founded upon. Our society now belongs to its voting, living citizens....of every creed, race, gender, and faith.

I am personally vested in this issue though (being currently married to a woman after 2 failed marriages to men, so I really feel the social differences and also the inadequacy of a term like "gay marriage" because human relationships are not binary but encompass a whole range), and I know that others have similarly strong but negative attitudes towards homosexuality.

So I sometimes like to approach such a controversial topic from different angles, hence my comments above on interstate concerns. You are right---a federal law could go either way. The states which have passed marriage equality acts have made huge waves in the national debate, but it must be resolved nationally to resolve what is (as you said) a question of equal opportunity under the law.

Regardless of my personal interest in marriage equality, I intellectually see this as a legal issue of government authority. Let's say it wasn't in this "gay" cultural arena that offends some people...consider the same concepts of equality under the law about a different license....pretend we are talking about a driver's license: I do not need to know or agree with the person driving on the road next to me. But we obey the same traffic laws, we keep to our own cars, and we co-exist. My fellow driver's creed or lifestyle or employment status or gender or race is completely irrelevant. We have equal access as citizens to the driving test, participate in the same market system of auto ownership, insurance, registration, licensing, etc., and need never be affected by each other's lives at all, so long as we do not violate the rules of the road. There need be no personal attacks or trying to convert each other to political views or any other irrelevant concerns....can't every legal privilege be regarded this objectively? Would personal or moral "worthiness" under a theological mindset ever be allowed in regulatory debates about drivers licensing? The reason cultural mores are irrelevant to the marriage debate is because the source of the disputed privileges is a supposedly secular government---not a church, not a cultural organization; these are civic privileges extended to citizens under a law that is democratic in theory.

Thank you again for initiating and moderating this discussion.

~Lurana @MrsBrownsParlour


HSchneider 3 years ago from Parsippany, New Jersey Author

Thank you for your detailed and very insightful comments on this subject, Lurana. I originally thought the civil unions solution was perfect because it took religion out of it and gave all couples equal rights and benefits. Activists made the valid point that it is both a religious and secular term and gay couples deserve the same title to their union. Your point about this country not be founded on religious grounds is absolutely correct. They were highly aware of the dangers and made great pains to write "separation of church and state" into our Constitution. Though social conservatives state that it is not there, they are wrong. It is strongly implicit in the document. Our governments should have no influence from religions and should treat all Americans equally. Thank you again for enhancing and expanding the debate on this important issue.


Marquis profile image

Marquis 3 years ago from Ann Arbor, MI

Marriage is between a man and a woman. Gay marriage is an oxymoron. There is no such thing no matter how many perverts try to make it seem sane and logical.


HSchneider 3 years ago from Parsippany, New Jersey Author

That is your opinion, Marquis and it is your right to have it. I believe you are wrong. Homosexuals are born to this orientation and deserve the same rights under the law as heterosexuals.


Aunt Jimi profile image

Aunt Jimi 3 years ago from The reddest of the Red states!

Human rights should certainly prevail when it comes to whom one wants to include in their lives. Who among us would want our friendships legislated? Why should marriage be any different? Consenting adults who are not harming anyone else should be left alone to pursue their happiness in their own way.

Lots of good points and information here.


HSchneider 3 years ago from Parsippany, New Jersey Author

Thank you for your comments, Aunt Jimi. I completely agree with you. The states that have explicitly legislated against gay marriage have violated the human rights of gay couples. These governments have no business doing this and I wish the Supreme Court would rule this way. I doubt they will. For now.


Convenient 3 years ago

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HSchneider 3 years ago from Parsippany, New Jersey Author

I do not know what your comment and link are driving at but thank you for reading, Convenient.


Nationette profile image

Nationette 3 years ago from Nashua, NH

at the end of the day i dont care what anyone thinks marriage should be... ill tell you what it is, a legal contract. to specify the terms of certain contracts to be only applicable to be entered by certain parties is discrimination. flat out, bottom line.


HSchneider 3 years ago from Parsippany, New Jersey Author

You are right on the mark, Nationette. It is discriminatory and it violates the "equal protection' clause of the 14th Amendment. Thank you for your comments.


Ericdierker profile image

Ericdierker 3 years ago from Spring Valley, CA. U.S.A.

This one is just not true. Restrictions on who can contract are normal. Restrictions on what can be contracted for are normal. Children, public policy, incompetents, people required to be licensed, jurisdictions are all reasons to limit abilities of people to contract. 14th is not meant to prohibit rationale laws --- Sorry to tell you, a blind man cannot contract with the state to drive a vehicle. A 10 year old boy cannot contract with the school to use the girls bathroom.


HSchneider 3 years ago from Parsippany, New Jersey Author

The exceptions you list to the equal protection clause are for public protection and safety. Gay marriage does not harm public safety. It only harms the homophobic sensibilities of some people. Thank you for your comments, Eric.


Ericdierker profile image

Ericdierker 3 years ago from Spring Valley, CA. U.S.A.

HSchneider, The states do have a right to determine for themselves what a marriage is. That is established. Equal protection comes in the form of providing the same benefits to gay/lesbian unions as to hetero here to for traditional marriages. Some are offended by separate but equal. Note here that bathrooms are separate and require "same sex" -- strange isn't it. It is bad form if we take a healthy man a break his legs so that there is equality for the handicapped. Much better we give the disadvantaged separate parking spaces, and separate ramps. States should not be required to obliterate current marriages to make room for something that is different.

Do not tear down the beautiful spiral staircase. Just put in a lift.


HSchneider 3 years ago from Parsippany, New Jersey Author

Slavery at one time was an established state right. The banning of interracial marriage was also a part of marriage state rights until the Supreme Court struck down that discrimination. The banning of same sex marriages will ultimately be struck down. Not this term. The Court will punt this down the road. Once enough states allow it, they will gather the courage to do so. Thank you again for your comments, Eric.


Ericdierker profile image

Ericdierker 3 years ago from Spring Valley, CA. U.S.A.

Alas how true, Our interracial marriage still carries a stigma people still walk up and think it fine to say that our boy "oh THOSE children are so pretty". Those??? A great hub friend and a great topic. Let us grow.


HSchneider 3 years ago from Parsippany, New Jersey Author

You are right, Eric. I am in an interracial relationship right now. I have not encountered any real problems but there are a lot of glances and stares. This is a great topic and I truly appreciate your comments and the insightful debate.


HSchneider 3 years ago from Parsippany, New Jersey Author

The Supreme Court today struck down DOMA on the grounds of equal protection and due process. This is important because they did not do so on states rights grounds. Thus it opens the way, at some point, for the court to affirm all same sex marriages as being constitutional. They punted on Prop 8 so they obviously want to give it more time and more states legalizing it. California now allows same sex marriage with this ruling or refusal to rule. Justice Kennedy appears to be on board to eventually constitutionally allow same sex marriage all around this nation. The DOMA strike down is an important preliminary victory and building block for future cases.


Borsia profile image

Borsia 3 years ago from Currently, Philippines

I'm glad to see they are upholding the Constitution at this point.

They did a little more than punt on CA's prop 8 stating that the proponents had no grounds to challenge the lower court striking down the proposition thus making same sex marriage legal in CA.

You can bet the Gov Brown will support legality.


HSchneider 3 years ago from Parsippany, New Jersey Author

Governor Brown has already given the state courts the OK to start issuing marriage licenses to same sex couples. My punting assertion is due to the fact that they passed on the question if same sex couples should be allowed to marry across the country. They probably want more states to come on board first. Thank you for your comments, Borsia.


Ericdierker profile image

Ericdierker 3 years ago from Spring Valley, CA. U.S.A.

California Courts do not issue marriage licenses. They are done county by county in accordance with state law. But not by Gubernatorial executive order. And in all fifty states there is separation of powers. The executive branch cannot order the Supreme Court which runs the courts.

I just read an AP report on this and it was horrible and misinformed.

Yes the State of California will begin to operate as though Prop 8 was declared unconstitutional. But not in the lame way it is being reported. Brown was shamefully grandstanding.


Borsia profile image

Borsia 3 years ago from Currently, Philippines

That is all Brown has ever done. He was one of the worst Govs' CA ever had and now he's back so expecting anything else from him is being naïve.


Ericdierker profile image

Ericdierker 3 years ago from Spring Valley, CA. U.S.A.

In California like many states - esp NY, has an executive branch that will poll until they figure out which side hurts them the most.

The Prop 8 case has nothing to do with the constitutional validity of the Proposition. I think that is fine. If the California public does not insist on Prop 8 being enforced then it will not be. I do not think they will. The DOMA/Shea case has finally defined marriage. Our Supreme Court did it like the so many years ago decided that a Black human being is a "Man" and a Woman is a Citizen. It bothers me, I am old fashioned and quite hetero. I do not like marriage being defined by a Union that is not Hetero. Big deal. I love all people and if they need this then I must be for it. I do not have a choice. Haters can have a choice I suppose. There are a lot of good people out there, that will thank the Supremes, not because they want same sex marriage approved, but because they finally defined marriage for us.

It makes be proud now to say -- "they are married" and to end the argument by saying "because the United States of America's Supreme Court says they are".

Those folks are smart. They love our country and the constitution for which it stands. They are learned and compassionate. Maybe, God does not like it but I think God must as God made this great nation under God, not yours or mine but under the God.


HSchneider 3 years ago from Parsippany, New Jersey Author

Governor Brown may have been grandstanding but once all of the Court's paper work is filed, California counties will have to perform these ceremonies. The California courts ruled so and the Supreme Court punted this case back to them. This nation was formed and created by men. These men, under God or not, had the sense to separate state and religion and allow our political leaders to decide these matters. Of course, they follow the people who vote for them and this is where the trend is going. No one knows what God thinks. We just have faith. We must operate by our own hearts and minds. My opinion is that these two decisions were wise and moved this issue incrementally. It will be back in front of the Court in a few years. That you can count on. Thank you for your comments, Eric and Borsia.


Borsia profile image

Borsia 3 years ago from Currently, Philippines

The Supreme court struck down an appeal to a lower court, saying that the petitioners had no standing to file such an appeal, which said that prop 8 isn't constitutional and throwing out the prop and its ban on gay marriage.

This means that the lower court's decision stands and gay marriage can't be banned. This clears the way for marriages to resume and be considered legal.


HSchneider 3 years ago from Parsippany, New Jersey Author

You are absolutely correct, Borsia. Thank you for that clarification.


e-five profile image

e-five 3 years ago from Chicago, Illinois, USA

First of all, the vast majority of marriage has nothing at all to do with sex. People have sex (both "good" heterosexual sex, and "disgusting immoral" homosexual sex) constantly, every second of every day since before recorded time. There are plenty of married people who rarely have sex with each other, and many who never do. Does that invalidate their marriages? Should so-called "normal" heterosexual people first have to prove their fertility or ability to perform sexually?

Companionship, tax advantages, making a public and ceremonious commitment to each other, guardianship responsibilities, and having someone legally bound to you for the purposes of lifelong care giving are all pretty important aspects of marriage that can really only be done under the legal imprimatur of state recognized marriage. So drop the argument that marriage is a license from the state to have sex (and the ridiculous argument that some types of sex are so "icky" that we wouldn't want to do anything in the name of the state to encourage it).


HSchneider 3 years ago from Parsippany, New Jersey Author

I agree with your points, e-five, but I hope that you do not think that I believe that marriage is a state license to have sex. All couples that marry are binding themselves together for life to love and care for one another. We are in total agreement. All couples should have the right to marry and have this relationship in my opinion. Thank you for your comments.


e-five profile image

e-five 3 years ago from Chicago, Illinois, USA

I should have clarified that I was responding to some of the previous comments by readers, not your essay.


HSchneider 3 years ago from Parsippany, New Jersey Author

Thank you for clarifying that, e-five. I totally agree with your analysis.


Ericdierker profile image

Ericdierker 3 years ago from Spring Valley, CA. U.S.A.

Wow HSchneider, that is a very nice way to look at it. Here is a weird twist I have an ex-wife sad to say. But we have never stopped loving and caring for one another. Causes a little problem with new spouses but they get it.


HSchneider 3 years ago from Parsippany, New Jersey Author

I am very glad you have that type of a relationship with your ex-wife, Eric. I have a similar one but probably not as close as yours. It would be nice if all couples who split would have that relationship especially for the children. Thank you for your comments.


HSchneider 2 years ago from Parsippany, New Jersey Author

The Supreme Court announced today that they have refused to take up all the gay marriage cases before them this term. This opens the way for 11 more states to allow gay marriage. I believe that the Court is biding its time while the list of states allowing gay marriage reaches critical mass. Then they will take up a case or cases to rule. I believe that in 2 or 3 years they will do so and it will be on the side of allowing gay marriage.


HSchneider 17 months ago from Parsippany, New Jersey Author

It is now a finalized issue and faster than even I thought it would come to fruition. Same sex marriage is now Constitutional under the "equal protection under the law" clause in the 14th Amendment. The Supreme Court ruled that way today and equality has been further extended in this country.

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