The Debate Over Gay Marriage

Written between April and May 2^nd, 2004 as a High School Writing Workshop Piece

Edited on February 1^st, 2016

            Same-sex marriage is becoming a more and more important and widely debated issue, and is creating controversy and inspiring rallies across the country. Recently, the City of San Francisco, California legalized same-sex marriage, challenging the state’s constitution, which defines marriage as being between a man and a woman. In the first week beginning February 12^th, almost three thousand gay and lesbian couples were wed. The city’s decision, which was opposed by Governor Arnold Schwarzenegger and Attorney General Bill Lockyer, was put into effect to purposely question whether California and the United States would allow same-sex marriages in the future. A proposition that was passed in California in 2000 states that “only marriage between a man and a woman is valid or recognized in California.” Illinois’s law states that any marriage between two people of the same sex is considered invalid.

            The proposition in California’s law – which states that gay marriages are invalid, and denies gays a right that all heterosexuals have – directly opposes the 14^th Amendment by denying homosexuals equal rights. According to San Francisco Mayor Gavin Newsom, any law against gay marriage is unconstitutional. Two states have officially legalized gay marriage; one being Massachusetts, where judges say laws prohibiting gays from marrying are forms of segregation that make homosexuals and heterosexuals unequal. The other state is Vermont, where the law technically provides for “civil unions”, but not “gay marriage”, the only basic difference being that in marriage, the couple receives a marriage license.

            The 14^th Amendment to the United States Constitution, ratified after slavery was abolished, states “no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” This clearly includes any homosexual who is a legal citizen of the United States. In a literal interpretation of this amendment, marriage is a privilege to which every U.S. citizen is entitled. Therefore it is illegal to deny the right to marry to any citizen. However, the unconstitutional proposition passed in California, as well as 37 other states, still stands. Some people who oppose gay marriage, including President George W. Bush, say that it will require a new constitutional amendment to allow gays to marry. To do so would require approval from 67 senators, approximately 300 representatives (depending on when the law would be passed), and the legislatures of 38 states. If it were to be formally proposed and passed, all previous state laws forbidding same-sex marriage would be invalid.

            Prior to the date when Vermont became the first state to legalize homosexual civil unions, the law’s treatment of gays had been similar to the treatment of blacks between the abolition of slavery and the civil rights movement one hundred years later. State laws segregated African-Americans and whites, forcing them to be apart from each other in public settings at all times. Many Southern states had laws that forbade whites from marrying any person who was less than 7/8 white, but non-whites, then categorized as “coloreds”, could marry those of their own race. These laws, which were called segregation laws or “Jim Crow” laws, also required blacks and whites to have separate bathroom facilities, separate buildings to buy alcohol, and separate movie theaters. Under these laws, blacks and whites were considered “separate but equal”, and therefore the laws were not considered unconstitutional.

            Today, many Christian groups are against any efforts to pass laws legalizing gay marriage. Some are seeking the White House’s support in opposing any propositions that “redefine” marriage. According to them, marriage between two men or two women, and any homosexual acts, are immoral. Some, like Kenneth Howell, the director of the Newman Institute of Catholic Thought, oppose gay marriage because he thinks laws should reflect morals. The Catholic Church does not condone it because homosexual marriage serves no purpose; specifically, to create children. Some say that allowing either civil unions, marriages, or domestic partnerships – which allow gays, and also heterosexual couples whom do not want to marry, to have benefits such as jail and hospital visitation and funeral arrangements, but not the right to be recognized as “married” – would undermine the religious values of Christians and Jews.

            If the proposed constitutional amendment to ban gay marriage (Note: there are alternative legal options that could also be effective in prohibiting this across the country; an amendment is not necessary the only way to do it) were to be officially proposed, voted on, and passed, then it would be the first amendment in United States history to take rights away from people. If any state were to legalize gay marriage before the amendment, married gay couples would have to be broken up by law, and they would no longer be able to visit each other in hospitals or have power of attorney over them and the ability to decide what happens to them when they die. Homosexuals, a significant percent of the population, would have one of the most important freedoms taken away from them; the freedom to love, and the freedom to be considered a married couple by the law.

            Although in Illinois, marriage between two people of the same sex, performed in other states, is invalid, Chicago Mayor Richard M. Daley has expressed support for the possibility of Cook County legalizing gay marriage, along with the mayors of Minneapolis, Minnesota, and Salt Lake City, Utah, as well as Gifford Miller, the Speaker of the New York City Council. SO far, the same number of states that would have to approve any constitutional amendment allowing gay marriages, has already passed laws against them. Still, with the changes made in the last few years advancing gay rights, such as San Francisco’s and Massachusetts’s gay marriage laws, Vermont’s civil unions law, and Cook County, Illinois and New York City’s domestic partnerships laws, the possibility remains that homosexuals will soon be entitled to get married and have the same rights as heterosexuals, and with the help of voters making the decision in favor of love and freedom, it could become a reality soon.

Justice Stephen Breyer and the "Recognition of Same-Sex Marriage Act" Hypothetical

Supreme Court Associate Justice Stephen G. Breyer

In the event of an appeal to the Supreme Court disputing an Appellate Court decision rejecting the legality of an act of Congress which would reverse an overturned Defense of Marriage Act of 1996, a hypothetical “Recognition of Same Sex Marriage Act” (R.O.S.S.M.A), Supreme Court Justice Stephen Breyer would author or concur with the author of an opinion which would affirm the power of Congress and support R.O.S.S.M.A.’s constitutionality.

In the decision of this case, in an opinion authored by Breyer or by one of his concurring colleagues, the Commerce Clause and the Necessary and Proper Clause would be cited as the constitutional bases for the opinion. Numerous Supreme Court cases could be cited as legal precedent for such an opinion, such as U.S. v. Lopez, Printz v. U.S., or any of the other major cases in which Breyer has been on the winning side, but also and especially the pre-WWII cases National Labor Relations Board v. Jones & Laughlin Steel Corporation and Wickard v. Filburn, as well as the 1985 case Garcia v. San Antonio Metro Transit Authority. Garcia was the most recent example of a high-profile defeat of dual federalism by cooperative federalism. It was decided before Breyer’s confirmation as a Supreme Court Justice.

Congress has power to “regulate commerce… among the several states” under the Commerce Clause (Article I, Section 8, clause 3). This [is commonly interpreted to mean] that any and all commercial activities taking place in more than one state, as well as commerce with foreign nations and Native American tribes, are subject to regulation by the United States Congress. In the 1942 Supreme Court case Wickard v. Filburn, appellee and farmer Roscoe Filburn argued that his having harvested an excessive amount of wheat, which was intended for consumption on his own property, was primarily local in nature, and thus had only “indirect” effects upon interstate commerce. Therefore, in the opinion of Filburn and his attorneys, Filburn’s excessive harvest – which had been deemed to be in violation of the 1938 Agricultural Adjustment Act – was legal, did not constitute sufficient grounds for regulation by Congress, and thus the fine imposed on Filburn was without basis.

Justice Robert Jackson, reversing the decision of the appellate court, wrote in a unanimous opinion that “even if appellee’s activity be local and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce, and this is irrespective of whether such effect is what might at some earlier time have been defined as ‘direct’ or ‘indirect’”.

Whether activities directly or indirectly affected interstate commerce had been significant in the decisions of U.S. v. E.C. Knight & Co., Schechter Poultry v. U.S., and Carter v. Carter Coal Co., all of which preceded the Wickard and N.L.R.B. decisions. Activities such as manufacturing, processing, and mining were held to be local in nature, and thus impertinent to and only indirectly relating to interstate commerce.

The 1937 decision of National Labor Relations Board v. Jones & Laughlin Steel Corporation provided a more explicit definition of what constituted interstate commerce. In a split decision, Chief Justice Charles Evans Hughes wrote that if local and intrastate activities have such a close and substantial relation to interstate commerce that their control is essential or appropriate to protect that commerce from burdens and obstructions, Congress may exercise control.

The requirement that commercial regulation by Congress be essential and appropriate falls in line with the Necessary and Proper Clause – Article I, Section 8, clause 18 – which gives Congress the power to make all laws which shall be necessary and proper for carrying into execution the powers vested by the Constitution in the government and its departments and officers.

According to the decisions of N.L.R.B. and Wickard, that local economic activity was indirect made little difference to whether regulation by Congress should have standing. In these cases, the Supreme Court gave more weight to whether activity had substantial relation to and substantial economic effect upon interstate commerce, thereby broadening the definition of what constitutes interstate commerce, and narrowing the definition of what may be construed as purely intrastate commerce.

This doctrine of cooperative federalism stood until the 1976 case National League of Cities v. Usery, but regained standing upon the decision of Garcia v. San Antonio Metro Transit Authority in 1985.

Justice Stephen Breyer joined in the dissenting opinion of the 1997 case Printz v. U.S. – written by Justice John Paul Stevens  – arguing against Justice Antonin Scalia’s majority opinion which rejected the constitutionality of the 1993 Brady Handgun Violence Prevention Act, which required the attorney general to establish a national database allowing for instant background checks of those attempting to buy handguns. In the Printz decision, Scalia cited as precedent the 1992 case New York v. U.S., which declared that the federal government does not have the power to command the states to pass legislation to implement federal policy, but rather that it only has the power to provide incentives for the states to act.

Since his confirmation by the Senate in 1994, Justice Breyer supported cooperative federalism and upheld congressional power under the Commerce Clause in cases such as U.S. v. Lopez in 1995, Printz v. U.S. in 1997, U.S. v. Morrison in 2000, and Gonzalez v. Raich and Granholm v. Heald in 2005. In those five cases, he always sided with Justices Ginsburg and Souter, almost always concurred with Justice Stevens, agreed with Justices Kennedy and Scalia twice each, and found himself in consistent dissent with Chief Justice Rehnquist and Justices O’Connor and Thomas.

Justice Breyer would find the Recognition of Same Sex Marriage Act constitutional because he would consider interstate commerce both substantially related and substantially economically affected by the Defense of Marriage Act in such a way that necessitates and makes appropriate the protection of commerce from such burden and obstruction, in keeping with the cooperative federalist language of N.L.R.B. and Wickard. Breyer would also cite the decision of Garcia v. San Antonio Metro Transit Authority, which held that only core government functions that preserve the independence of states may be exempted from federal commercial power legislation, same sex marriage in no way suppressing the ability of states to function independently of one another.

Written in December 2009 for a college course

Originally Published on October 24^th, 2010

For more entries on gender, sexuality, and L.G.B.T.Q. issues, please visit:

http://www.aquarianagrarian.blogspot.com/2010/10/writing-of-michel-foucault-as-radical.html

http://www.aquarianagrarian.blogspot.com/2014/01/personal-and-political-connotations-of.html

http://www.aquarianagrarian.blogspot.com/2014/01/the-role-of-aswpl-and-christian.html

http://www.aquarianagrarian.blogspot.com/2014/01/dennis-altmans-global-sex-from.html

http://www.aquarianagrarian.blogspot.com/2014/04/social-policies-for-2012-us-house.html