Same-sex Marriage and the Land of the Free

The United States Supreme Court has finally taken on the question of marriage equality and the world is waiting for its answer. The SCOTUS has agreed to hear cases concerning the constitutionality of legislation denying rights to same-sex couples, such as California’s Proposition 8 ruling (which is a state constitutional amendment that has banned gay marriage) and the Defence of Marriage Act (which defines marriage as a heterosexual union and thereby prevents homosexual couples from claiming federal benefits that are awarded to heterosexual couples).

Image courtesy of Fibonacci Blue, © 2010, some rights reserved.
Image courtesy of Fibonacci Blue, © 2010, some rights reserved.

While I find it heatening that the issue has finally reached the SCOTUS, I’m disappointed by how long it has taken. What is the problem with gay couples marrying? Why do we care so much if they are able to file joint tax returns or receive Social Security survivor benefits? As a liberal university student, it shouldn’t be surprising that I think of marriage equality as an inherent right. What should astonish you is that a nation like the United States, a global superpower founded on values of freedom and liberty, is still debating the fair treatment of its citizens.

American politicians, for fear of damaging their images, have only recently begun pledging their support for marriage equality, with many flip-flopping from previously held opinions. During this past election season, President Obama became the first pro-gay marriage US President, reversing his earlier stance that marriage is an institution between one man and one woman. The growing political relevance of the marriage debate in America has certainly helped bring the issue into the nation’s highest court, but the uncertainty about the impact of the SCOTUS’s rulings still remains.

Proposition 8 has been dubbed the most significant case facing the SCOTUS, since the court will be asserting whether or not to protect the right to same-sex marriage.  There are five possible outcomes to this case, with each one having a different consequence for the future of marriage equality.

The two extreme ends of the spectrum would involve the court either constitutionally protecting marriage equality or denying its constitutionality throughout the entire nation. Affirming the constitutionality of same-sex marriage within all fifty states would be a remarkable ruling that would emphasise the liberal future of the US. While this is the utopian solution for all proponents of marriage equality, the likelihood of such a dramatic decision is small; chances are, there isn’t a majority (the equivalent of 5 votes) to support this option. Similarly, it is doubtful the SCOTUS will pronounce the general unconstitutionality of marriage equality, a decision that would severely set back the gay rights movement.

The court could also protect marriage equality in the states that have legalised civil unions by ruling that these unions are no different than marriage. This would make same-sex marriage legal in the nine states that have legalised civil unions, and is the argument supported by the Obama administration. This ruling could however put off additional states from granting civil unions in the future, which would result in a dangerous impasse.

 Contrarily, the SCOTUS could make two decisions on Proposition 8 directly applying to the state of California. A ruling striking down Proposition 8 and protecting same-sex marriage in California would technically be on a much smaller scale, but could indirectly set a precedent for the entire nation. The other option is that the court dismisses the case in its entirety. Cases that justices are still sceptical about agreeing to hear are often dismissed based on being “improvidently granted”. This would be a disappointing outcome because of the potential that this ruling exhibits in terms of the future of equality.

It is important to remember that the fight for American marriage equality goes far beyond the rainbow flags, protests, and Facebook profile pictures; it is a matter of global political significance. America treating homosexuals as unequal is not only considered a shameful and unjust violation of civil liberties by many Americans, but is also detrimental to the international standing and influence of the superpower. How can it express its disapproval of human rights violations abroad when it is clearly repressing freedoms within its own borders? The nation’s disapproval of things like the criminalisation of homosexuality can be viewed as hypocritical due to its own suppression of gay rights.

Same-sex couples are currently permitted to marry throughout eleven nations, and bills allowing marriage equality are passing through the legislatures of many others. These nations are from different continents and are have different cultures, but have all made the same decision to join the gay rights movement in an effort to restore civil liberties. In my opinion, there is no doubt that marriage equality will eventually become embedded in the structure of society. The uncertainty lies in the roughness of the road travelled.

The Supreme Court’s ruling on these cases has the potential to place the US on the right or wrong side of history. On one hand, America has the potential of furthering the gay rights movement by serving as a positive influence for other members of the global community. On the other hand, a decision ruling against same-sex marriage or not ruling on it at all would seriously downplay the nation’s founding principles of freedom and liberty, as well as its ability to sway the foreign political agenda.

As the Supreme Court justices deliberate and prepare to release their decisions in late June, we can only hope they understand the gravity of their rulings on both a domestic and international stage. They will have the ability to either push forward the notion of equality in society, or further delay efforts to protect civil liberties throughout not only America, but also the entirety of the international community.

3 Replies to “Same-sex Marriage and the Land of the Free”

  1. There’s a difference between a DIG and a holding reversing the 9th Circuit decision because the proponents lack appellate standing. Finally, Hollingsworth could very well be a landmark without making a single pronouncement on same-sex marriage. If the Court reverses for lack of appellate standing, Hollingsworth will contribute to a rapidly changing body of case law on Article III standing. That’s not a DIG, but it means no consideration of the merits of the Equal Protection argument.

    And there’s a difference between a decision affirming the district court holding (national marriage equality), the 9th Circuit holding (entrenching marriage equality in states that already have it), and a ruling applicable only to California.

    The merits may appear black and white, but the case itself isn’t and shouldn’t be treated as such.

  2. Good point about equality to all humans and America’s future stand on Gay rights and their civil liberties.

  3. Great article. But I believe that:
    Any law which sets criteria for anything discriminates. For example, the law of driving, discriminates on grounds of age. One must be at least 17 years old. In our society, we do not consider this discrimination to be unacceptable, because it is justified.
    If anything, ‘equality’ proves too much. Whatever its causes, human sexual expression is complex and variable- even facebook relationship status are witness to that- ‘single’, in ‘a relationship’, ‘its complicated’! Self-awareness, desire, social convention, choice, behaviour and identity are all intertwined in complex ways. The condition of human sexual expression seems diverse and even chaotic at times.
    It follows that for marriage to be ‘equal’ on grounds of sexual orientation, the law should not be restricted to just one type of sexually-intimate companionship. Why can’t a man marry two wives? Why isn’t prostitution treated as a form of short-term marriage? Why, for that matter, should single people be deprived of the chance to pass on their pension rights to a best friend? There may or may not be reasons for drawing the legal boundaries in any particular place, but until those reasons are stated, the argument from equality is incomplete.

    Importantly, Equality is not uniformity. Our definition in law of equality has always been concerned with equality of outcome. However, here the proponents of gay marriage are arguing for equality of label. So why is it that we distinguish between a lift and stairs? By Using either results in me ending up in the same place- equality of outcome. But they are fundamentally different and are made for different purposes so it would be ridiculous to refer to the lift as the stairs. Same sex couples have same legal rights under civil partnerships. True equality shows that differences do exist and respect rights of minorities. It not only redefines marriage for the gay community, but for everyone!
    Personally I see marriage as being a ‘voluntary union’. There is a distinction between sexual union and sexual intimacy. A sexual relationship can be called a ‘union’ because it can be embodied in a new human person. Only a man and a woman can form the biological unit capable of pro-creating another being ‘free and equal in dignity and rights’. No new human being can exist as a living expression of the intimacy of a same-sex couple.

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