A Constitutional Crisis

May 16, 2013
“We hold these Truths to be self-evident, that all Men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and
The pursuit of happiness. That to secure these Rights, Governments are instituted among Men, deriving their just Powers from the Consent of the Governed, that whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its Foundation on such Principles, and organizing its Powers in such Form, as to them shall seem most likely to effect their Safety and happiness.” Quoted in the Constitution itself is a statement declaring that the purpose of our laws and government is to protect the rights of our citizens in an equal and fair manner. This applies to all civil rights issues, particularly the demotic controversy of legalizing gay marriage at a federal level. People opposing same-sex marriage argue their concerns about procreation, maintaining the institution of marriage, and the overall destruction of religious morale that legalizing gay marriage would result in. On the other spectrum, many people disagree with those statements and propose the argument that the separation of church and state removes any religious influence from the passing of legislation. These people remind the public that it is not up to the government to decide whether or not something is “right” morally, but rather to establish justice and provide for the common defense of human rights. Both sides of this controversy provide a well-supported argument; however, regardless of the concerns of the opponents to same-sex marriage, the legal and constitutional backing for allowing gay marriage overrules any “moral” arguments (US Const. pmbl.).

To begin with, the state’s purpose in marriage is in regulating procreation and maintaining the institution of marriage. Passed in 1996, The Defense of Marriage Act, commonly abbreviated as DOMA, legally defines marriage as a union between one man and one woman. Members of the House of Judiciary Committee who supported DOMA stated that the act was passed by government in order to protect the traditional heterosexual marriage, as well as the countries concept of morality (“Defense of Marriage Act (DOMA)”). In contrast, supporters of gay marriage question that if the purpose of marriage as an institution is to allow for procreation, then why does the law allow for infertile and/or elderly couples to marry? If this was the case then there should be a law in place that requires all married couples to have at least one child, or a law that denies infertile couples the right to marry. There are fertile young couples that live their whole lives without ever desiring to have a child. How is it fair to deny same-sex marriage simply because they cannot reproduce, when they can adopt and raise a child that some different sex couples wouldn't want to raise themselves? Allowing same sex marriage and rights to adopt a child will actually have positive benefits such as providing more parents with children and vice versa ("Should Gay Marriage Be Legal?").

Religion is the driving force behind a large majority of anti-gay marriage viewpoints. Referring back to the bible, they use the verse that defines and restricts marriage to only being between a man and a woman. Though valid in a casual debate over this controversy, no religious evidence is tolerable in court due to the separation of church and state, which was established all the way back in 1791 with the adoption of the first amendment. Since this issue is now on a federal level, no religious reasoning or “traditional” religious morals can be used to argue against the legalization of gay marriage. This alone puts opponents of gay marriage at an extreme disadvantage and leaves them digging for obscure arguments to throw against the supporters of same-sex marriage as a legally recognized institution at a federal level ("Not About Gay Rights") .

Despite all the other arguments that more or less cannot be supported with concrete evidence, the constitutional argument behind all of this can be settled with facts from the constitution. Many people are concerned that extending the legal recognition of marriage to same-sex couples would be violating the constitution by creating more rights than it was set out to give. Although the constitution does not currently state that same-sex marriage should be recognized legally, the elastic clause was set in place for this reason, and should be used to protect the equal rights of all citizens. One example of the Elastic Clause being used for a good purpose is when President Thomas Jefferson used the Elastic Clause to allow him to purchase the Louisiana territory, when the constitution at the time did not give him the power to do that. In addition to the elastic clause, the Fourteenth and Fifth Amendment state that the government has to enforce all laws equally for everyone, despite their race, gender, or sexuality. Since only legal married couples are granted the federal benefits such as social security benefits, employee health benefits, and tax deductions, it is technically illegal to not allow the same rights to gay couples in accordance to the Fourteenth and Fifth Amendment. To sum up the question of whether or not it is constitutional to add gay marriage to the constitution, there are plenty of amendments and clauses that if used properly, can help to create a better, more equal constitution, without abusing governmental power (Levy).

To conclude, there are valid arguments both for and against legalizing gay marriage. People opposed to gay marriage are concerned that allowing gay marriage can harm the institution of marriage by slowly diminishing our nation’s morals, interrupting procreation, and increasing the divorce rate. When it comes to the constitution, they believe that creating more rights than the constitution allows is unconstitutional and gives the government too much power. Supporters of gay marriage point out the separation of church and state to put down any religious or moral conflicts that opponents try and bring up in court. They also emphasize the importance of the Elastic Clause and the Fourteenth and Fifth Amendment, because they are legal creations made for the purpose of protecting citizens’ rights. Above all, the constitution was created to ensure all U.S. citizens the right to life, liberty, and the pursuit of happiness. In order for everyone to have an equal shot at those three things, we must come together as a nation and sacrifice our personal beliefs, if we want a perfect model of democracy, and moreover, freedom.

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