Same Sex Marriage (Photo credit: Wikipedia)

There currently rages a social debate by both the LGBT community and conservative religious group whether same sex marriage should be the law of the land.  Currently the Defense of Marriage Act (DOMA) enacted in 1996 defines marriage as being the union between one man and one woman.  The reason this is an issue is because legally married couple have certain rights and tax privileges that non-married couple do not have.  One issue commonly cited is hospital visitation right of the critically ill.  This was of great concern to gay couples, one of whom was dying in the hospital, where the visiting partner was forbidden by the immediate family from visitation rights.  Tax preferences for married couple are more easily understood.

Legal workarounds DOMA have been enacted by several states as Same Sex Marriage whereby giving same sex partners similar rights to Married couples.  However these rights are not equal in all cases.  Federal law still does not recognize Same Sex Marriages so there are no preferential tax benefits.  Also many states to not recognize Same Sex Marriages to if a gay couple goes to such a state they do not have hospital visitation rights.  Another complication is that every law or tax rule related to Marriage needs to be replicated for Same Sex Marriage making the legal system far more complex.

Fundamentally the definition of Marriage is based upon Christian-Judaic morality.  It is the claim by conservative religious groups that God intended a single man to marry a single woman to appropriate and raise a family.  They claim that this is God’s plan for procreation and family units and thus the physical sexual functionality between men and women.  However the 1^st Amendment among other things prohibits the making of any law respecting an establishment of religion or impeding the free exercise of religion.  This amendment states the separation of Church from State.  Thus laws such as Marriage which make claim to Christian-Judaic morality are unconstitutional.  To counter this argument these groups claim that this is a natural biologically based law stemming from the need to procreate.  But then what about couple whom due to medical conditions are not able to conceive?  Should they be denied the right to marry because they cannot naturally have children?  How about couples who do not plan to have children and have medically prevented themselves from conceiving?  Should they be denied the right to marry?  In both cases the law of the land does not prevent marriage.  So this argument and existing laws are not consistent.

Another issue regarding DOMA is that it allows states that do not recognize Same Sex Marriage not to recognize Same Sex Marriage certificates issued by other states.  This infringes on the constitutionality of the “Full Faith and Credit Clause” in Article IV of the Constitution, which states, “Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.”  This means that legal document created in one state must be honored in other states.

However, DOMA gives states that do not want to recognize same-sex marriages a way out of the Full Faith and Credit Clause. Section 2 of the act reads, “No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.” In other words, through DOMA, Congress allows states to completely ignore this fundamental constitutional provision.

Naturally this issue is up before the Supreme Court to rule.  The Court is dominated by 5 conservative justices.  But some of these Justices are also Constitutional conservative who tend to uphold the literal interpretation of the Constitution and might support Article IV.  I feel that any attempt to ignore fundamental constitutional provisions is wrong.  If a constitutional provision is to be ignored then it should be amended or repealed from the constitution.  The purpose of a constitution is to act as a framework for all subsequent laws.  Otherwise it is ambiguous and ineffectual and has no business being part of the constitution.

The Defense of Marriage Act is unconstitutional based upon the arguments presented above and needs to be repealed so that Marriage is not restricted to heterosexual partners.  Marriage should be a long term contract between two consenting sexual couples who wish to live together on a permanent basis regardless of sexual orientation.  It is gratifying that President Obama, who four years earlier only supported same sex unions, today has taken the final step of supporting same sex marriage during his State of the Union speech this February.  I personally would go so far to even support bigamy which is practiced in many cultures throughout the world.  I would even replace the phrase “two consenting sexual couples” with “consenting sexual partners.  I don’t believe that couples, gay or otherwise, are any more successful at maintaining long term marriage relationships than polygamous marriages.  In fact many Hollywood marriages are shorter than the average time couples go steady.  The same arguments can be presented for this case as well.

I invite comments about this article and the Deference of Marriage Act.  Do you believe that same sex couples should have the same rights as heterosexual marriages?  Why?  I invite you to Leave a Reply below.  I also encourage you to take the Poll.