Same sex marriages are unions involving the same genders either in legal or social terms. Same sex marriages is by far a legal, social, moral, and civil right issue in many states today though countries such as Argentina, Spain, Belgium, Canada, Iceland, Netherlands, South Africa, Sweden, Portugal and other countries have legally adopted it. However, in the United States, some jurisdictions have adopted the same trend with states such as Washington, Iowa, Massachusetts, and New Hampshire accommodating same sex marriages in their laws (Craig, p. 233).
The major issue in this type of union exists in whether partners in same sex marriages should be allowed to use a different legal union apart from marriage; or whether they should be recognized under a different legal jargon such as a “civil union”. Rights enjoyed in marriages are therefore in contention because it is not clear whether they should also be applied in same sex marriages or not. The impact of same sex unions on children brought up in this type of marriages is still in contention despite the fact that such children enjoy psychological, financial and emotional support from both partners (Craig, p. 234).
Sexual orientation is the only basis in which states bar same sex marriages, possibly as a stigma that is still associated with homosexual tendencies, historically existent in the society. This therefore defines the structure to which same sex policies barring this type of union stem from. However, support of same sex marriages largely stems from universal rights. In addition, concerns of mental and physical health, the equal nature of the law, and the specific vision of validating LGBT relations still dominate most debates relating to this topic.
In essence, the opposition of same sex marriages practically comes out of the use of the word “marriage”; such that, same sex couples enjoy the same rights as partners from contemporary marriages. Other factors noted as contentious issues are the social and cultural impacts of legalizing this type of unions and concerns to do with parenting and religious implications. Nonetheless, supporters of same sex marriages attribute the wide rejection of same sex unions to homophobia and equate this legal prohibition to the historic social stigma associated with interracial marriages (Craig, p. 234).
Judicial and Legislative Concerns
Using the majority rule principle, same sex marriage is considered null and void in most American states. According to the civil rights view; with regard to both arguments (for and against same sex marriages), the judiciary should be in a position to shed some light on the issue about “marriage” with regard to gender impartiality on matters relating to same sex marriage (Eskridge, p. 79).
In essence, the judiciary finds itself at cross roads here because if it ascends to legalizing same sex marriages, it means that such unions are constitutionally guaranteed. In essence, the judiciary will save its face with regard to the impartiality of the institution. On the other hand, if it criminalizes same sex marriages, it will seem to cement the decision, based on gender biasness and partiality; but at the same time, it will seem to protect the culture of the people and accommodate the majority view (which is the true characteristic of democracy) as well as religious concerns. Nonetheless, the implication of such a ruling has diverse effects in the general American society.
Generally, the legal implication of legalizing same sex marriages is that rights accorded in this type of union are indistinguishable form “normal” marital unions. The US has however developed numerous case laws relating to existing legislations that are focused on the principle of equality before the law. Nevertheless, I am of the opinion that freedom should be given to accommodate whatever preference that exists in the society because this is the true essence of democracy.
The law shouldn’t constitutionally deny partners in same sex marriages their human right to choose the kind of life they want to lead. I would equate the same dilemma to the right of two partners in having any number of children they may prefer. In essence, a huge population, like that evident in China or India or a dismal population evident in some European countries undoubtedly has some serious, political, economic and social effects, but the right to have whatever number of children is a God given right and at the same time, a human right. The same treatment accorded to this issue should be the same as that applied in same sex marriages.
Legal Implication on Education
One major controversy of same sex marriages is on how the legalization of same sex marriages would affect public education policies. Some quarters argue that teaching same sex marriages in public schools would make children open minded, while some identify this development as a blatant abuse of parental rights on the life of the child (Pawelski 349). Some also argue that if same sex marriages are legalized and taught in schools as an alternative form of family, the information given to the children may be shallow because it’s likely to omit the psychological, medical or legal implications of homosexuality (Eskridge, p. 79).
Some of the content discussed in this debate may also be inappropriate for certain age groups (Pawelski 351). It is an obvious fact that the society is divided on this matter and if same sex marriages are entrenched in the constitution, it means that those teachers who may not be in support of the union will be punished under the law. Constitutional ratification of this law is therefore a complex affair because it is likely to impact on future generation in a huge way. It also seems to compromise on personal opinions of a section of the population who may be required to implement it, incase it is passed.
Privatization of Marriage
From a liberal point of view, states don’t have any legal basis to define personal relationships of its subjects. In essence, liberals argue that the state or the American constitution in general should have a very limited influence on personal relationships of its citizens; or better yet, have no influence at all (Pawelski, p. 352). In actual sense, the constitution should come in to protect the rights of this minority group (LGBT), the same way it would protect another minority group such as the blind, mentally disabled or such like groups.
Minimal intervention should only be witnessed when there is an infringement on public policy though this is rare in same sex marriages because it is not any different to “normal” marriages; at least in the sense of public policy because it is purely a matter of preference (Evan, p. 39). Heavy constitutional presence or stiff regulation in such an issue amounts to some sort of authoritarian rule like that evidenced in China or Iran where the government regulates the social, political and economic aspects of the society.
With America priding itself as one of the biggest democracies in the world, it should not seem to unnecessarily regulate the personal lives of its citizens. The constitution should therefore be only restricted to regulating contracts willingly entered into by two or more parties; but a marital contract is excessive to any type of contract entered between two individuals.
Amending the Constitution
The then President George W. Bush expressed the willingness to make amendments to the constitution to totally ban same sex marriages, though his efforts have been marred by technical difficulties (Evan, p. 39). Amending the US constitution to totally ban same sex marriages implies that the federal state adopts two approaches: First, the proposed amendments should pass a two thirds majority in the House of Representatives and at the senate level. Secondly, a convention of a constitutional nature can be called by at least two thirds of the legislators representing the state. However, it should be noted that none of the twenty seven amendments made to the US constitution have been achieved through the latter method.
If the proposed amendments pass by a two thirds majority in the House of Representatives and the Senate, then it proceeds to the states. Here is where most of same sex constitutional amendments have experienced difficulty in ratification because thirty eight states need to support the amendments (which is also equal to three-fourths of the total number of states). Presently, 38 states protect marriages through legislative laws in place and at the same time, ban same sex marriages on the same grounds (Evan, p. 54).
The most successful, recent amendment made to the constitution was done in 1992 (Evan, p. 56). This is evidence of the difficulties in passing the technicalities of amending the American constitution. An amendment on equal rights between men and women which would directly ratify same sex marriages passed the house and senate levels but failed at the state level. This is a clear attestation to the divisive nature of the issue, while at the same time, a manifestation of the rigid nature of the US constitution.
Conclusion
Same sex marriages have been a heavily contested issue in most American states. The constitution is used to either support the union by giving it the same rights as contemporary marriage unions or deny the same by giving it a different title. Nevertheless, recent attempts have been made to change the constitution in this light, especially by the then president George W, Bush. It is however undisputed that same sex marriages have a huge impact on the society and warrant constitutional attention. Nonetheless, the contentious nature of the subject still leaves the matter open to debate.
Works Cited
- Craig, Rimmerman. The Politics of Same-Sex Marriage. Chicago: University of Chicago Press, 2007.
- Eskridge, William. A History of Same-Sex Marriage. Virginia Law Review. 7 (1993): 79.
- Evan, Gerstmann. Same-Sex Marriage and the Constitution. Cambridge, UK: Cambridge University Press, 2004.
- Pawelski, John. The Effects of Marriage, Civil Union, and Domestic Partnership Laws On The Health and Well-Being of Children. Pediatrics. 118.1 (2006): 349–64.