A prelude

In my previous posting I discussed a developing change in this country. What I was referring to was the American publics' growing acceptance of same-sex relationships. Unfortunately this may have been a bit of wishful thinking on my part. Yesterday, Election Day 2008, there were proposed constitutional amendments on three state ballots seeking to write into these state’s constitutions same-sex marriage bans. Unfortunately, all three amendments passed. Today, I am truly saddened and angered by these results.

An opponent to same-sex marriage will say that he is no bigot. He will say that he is not discriminating. He will say "We aren't trying to change anything that homosexual couples believe or want -- it doesn't change anything that they're allowed to do already. It's defining marriage. . . . Marriage is a man and a woman establishing a family unit." This man may not want to discriminate, but he does. He “defines” marriage to the exclusion of others. Why does he do this? If it is not about hatred towards gays, what is it about? What justifies his position?

At the outset, I will reluctantly say that I respect this view that some people hold. People have the right to feel however they feel and think of marriage in whatever way they like. The problem with those that hold this view—the marriage is between a man and a woman view—is that they want their view of marriage to be the law’s position on marriage. But what’s wrong with that you ask? Why shouldn’t marriage be a relationship reserved for only a man and a woman? Or, why should the other view prevail, that is, why should men be allowed to marry men and women marry women?

Well, same-sex couples should be permitted to marry because the Supreme Court of the United States has recognized that marriage or the right to marry is a fundamental constitutional right. And, when fundamental rights are interfered with by the government, the government must justify that interference. The government can only accomplish this by demonstrating that it has a COMPELLING interest in causing this interference. The government must also show that the interference they have caused is NECESSARY to advance that compelling interest. Both factors must be met. The interference must be necessary to accomplish the state’s compelling interest. This is known as strict scrutiny analysis and it is the test used to determine whether government action that interferes with a fundamental right is constitutional. Here’s an example of this analysis at work:

Wisconsin once passed a statute that required residents to obtain a court order before getting married if they had children that they were required to pay child support for. Marrying without the court order was prohibited and criminally punishable. Wisconsin declared that their interest in placing this restriction on marriage was to protect the welfare of the children owed child support and to give the state the opportunity to counsel the marriage applicant about fulfilling his or her prior support obligations. The Supreme Court of the United States found the Wisconsin statute unconstitutional. While protecting children can certainly be called a compelling interest, the Court held that the law was flawed in that it only prohibited incurring new burdens through marriage and it didn’t actually collect any money for children. It simply restricted access to marriage. Furthermore, other means existed for accomplishing the state’s task like wage assignments or civil contempt proceedings.

The Wisconsin law is an example of a restriction on a fundamental right NOT necessary to advance the state’s compelling interest. So with that in mind, for the government to lawfully deny same-sex couples the right to marry (a fundamental right) the government must have a compelling interest in doing so, and denying same-sex couples the right to marry must be necessary to advance that government interest. The question here is what is the justification for interfering with gay people’s fundamental right to marry? What is the compelling interest? And is banning same-sex marriage actually necessary to protect that interest? My next blog will focus on some of the justifications for denying same sex couples the right to marry opponents to same-sex marriage advance. I will take those arguments and run them through the strict scrutiny analysis.

I would like to leave you with this thought. As many today, following the results of this election, have spoken of the great strides our country has made towards racial equality, I would like to point out that courts that have encountered the same-sex marriage issue have not followed the analysis I will. The courts have followed a different analysis which held the state governments to a lower burden and made it easier for these states to justify denying same-sex couples the right to marry. Facing this lower burden, some states have still failed to make the showing that they have a legitimate reason for denying same-sex couples the right to marry, the fact that the strict scrutiny analysis isn’t used in every instance—along with the passing of those three discriminatory amendments—should indicate how much work is still left to be done before equality for homosexuals is realized in this nation.