A look back into the history of this country illustrates that the fight over whether same-sex marriage should be allowed is yet another hotly debated issue that has divided this country and challenged our long-standing notions of morality and tradition. Less than a century ago the thought of women having a right to vote was deemed unconscionable. Today women cannot even fathom the fact that they could have ever been denied such a fundamental right as citizens. About fifty years ago African-Americans fought to have the same rights as white Americans to vote, to frequent public establishments, and to utilize public transportation; whether black children should be allowed to attend the same schools as white children was hotly disputed; blacks were denied admittance into graduate schools, and interracial marriages were prohibited. Today our country is being led by a black (or to be more accurate – interracial) president who attended an Ivy League law school. The contested list of constitutional rights is long. And if an old adage that “history tends to repeat itself” is true, then it is just a matter of time before the right to a same-sex marriage becomes the supreme law of the land, and protests and debates are featured on the History channel. Until then, we just have to wait and watch as this fight plays out in the courts, in the Congress, in the upcoming presidential elections, and in our streets.
The litigation on the issue of same-sex marriage and its legalization has been growing exponentially since the first case (Baker v. Nelson, 291 Minn. 310 (Minn. 1971)) on the subject was filed in 1971. Yet, nowhere in the U.S. has the fight been more eventful and expensive as in California. In 2008, the California Supreme Court in re Marriage Cases held that the existing “California legislative and initiative measures limiting marriage to opposite-sex couples violate the state constitutional rights of same-sex couples and may not be used to preclude same-sex couples from marrying.” The Court also held that “statutes that treat persons differently because of their sexual orientation should be subjected to strict scrutiny.” In reaction to this ruling, a constitutional amendment, the California Marriage Protection Act (known as “Proposition 8”) was passed during the November 2008 state elections. The constitutional amendment provided that “only marriage between a man and a woman is valid or recognized in California.
Shortly thereafter, a federal lawsuit, Perry v. Schwarzenegger, was filed in the U.S. District Court for the Northern District of California challenging the federal constitutionality of Proposition 8. On August 4, 2010, Chief Judge Vaughn Walker ruled that Proposition 8 violated the Due Process and Equal Protection Clauses of the 14th Amendment to the U.S. Constitution. Not surprisingly, the ruling was swiftly appealed to the Ninth Circuit Court of Appeals. Due to its potential historical significance, the case has been generating so much public interest, that the Court created a website to “notify the media and public of procedures and rules for admission to proceedings, as well as access to case information.” It should also be noted that the case name has been changed to Perry v. Brown in light of the election of a new California governor Jerry Brown. The latest development in the case occurred on March 23, 2011 when the Ninth Circuit denied a request from the plaintiffs to lift the stay on Judge Walker’s decision, striking down Proposition 8 as unconstitutional. Perry v. Schwarzenegger/Perry v. Brown is widely regarded as a landmark case that will likely reach the U.S. Supreme Court on appeal
I found both In re Marriage Cases by Chief Judge George and Perry v. Schwarzenegger by Chief Judge Walker absolutely brilliant. In re Marriage Cases is a perfect example that the way an issue is framed impacts the outcome of a case. Had the Court agreed with the defendants that the constitutional right at issue is the right to same-sex marriage rather than the right to marry, the outcome would have probably been different. The Court would not have probably dismissed reliance on tradition so easily; as a result the Court could have said that traditionally an institution of marriage has been a union between a man and a woman. Moreover, I felt that the social science evidence that the Court had so heavily relied on was by far the most insightful and preferred description of marriage as an institution that I have ever encountered. For instance, when Judge Walker discussed the interest of individuals in the institution of marriage, he noted that marriage “provides an individual with the ability to invest in and rely upon a loving relationship with another adult in a way that may be crucial to the individual’s development as a person and achievement of his or her full potential.” Arguably, one does not need to be legally married to be in a loving relationship with another adult to fulfill his or her own potential and to be happy. Yet, psychologically, having societal recognition and approval of the union seems to add to one’s happiness and well-being. Otherwise, why would same-sex couples not just be satisfied with having been granted the recognition of domestic partnerships or civil unions?
Of course this fight for same-sex marriage is more than just about being happy with having your relationship recognized by society. It is about having the right to the same benefits as opposite-sex couples do, such as eligibility for health insurance coverage, hospital visitations, inheritance laws, children having two legal parents, and etc. Although the current discussion centers on the right to marry, it is irrefutable that sometimes relationships break down, therefore the fight for same-sex marriage and eligibility for the same benefits and rights probably includes the right to divorce and to claim spousal and child support. Otherwise, same-sex couples may be faced with situations where, although they were able to legally marry in one state, they cannot get a divorce in the state where they reside because their state of residence does not recognize same-sex marriage. For example, last year the Fifth Texas Court of Appeals ruled that a Dallas district court judge did not have the authority to hear a divorce case involving two Dallas men who married in Massachusetts in 2006.
As I read Perry v. Schwarzenegger decision, I found the interests purported by the proponents of Proposition 8 absurd and incongruous. The fact that the institution of opposite-sex marriage and quality of parenting by opposite-sex couples has been disintegrating has absolutely nothing to do with same-sex relationships and parenting. It can even be argued that because same-sex couples, unlike some opposite-sex couples, cannot accidentally become parents and therefore they expand a great amount of money and energy into becoming parents, they (same-sex couples) approach parenthood with greater responsibility and care and provide more enduring and stable family structures for the children. Furthermore, it can be argued that because of the scrutiny and criticism surrounding same-sex marriages, some individuals are hesitant to act on their sexual preferences. As a result these individuals enter into a marriage with the opposite sex and embark on the road of deceit and betrayal (because ultimately their secrets are revealed). Thus, if marriage is supposed to foster stability and trust and facilitate personal fulfillment, living a life of deceit and betrayal to satisfy societal notion that the only valid marriage is the opposite-marriage is counterintuitive and destructive to the very institution of opposite-sex marriage.
Unfortunately it appears that the fight to federally legalize same-sex marriage will be a long and complicated one. Furthermore, there is no guarantee that when same-sex marriage cases will finally get to the U.S. Supreme Court, that the conservative Roberts Court will rule in favor of the proponents of same-sex marriage. Yet it is comforting to know based on the U.S. Supreme Court’s own history in cases such as Plessy v. Ferguson and Brown v. Board of Education, and Bowers v. Hardwick and Lawrence v. Texas, that the Court (or rather, a new Court lineup) can reverse its precedent. Therefore, even if the U.S. Supreme Court will initially find the same-sex marriage unconstitutional, a change in the Court’s lineup will eventually put this issue to rest once and for all.