The Supreme Court will hear oral arguments on Tuesday for “Obergefell v. Hodges.” The Court has consolidated this case with “Tanco v. Haslam,” “DeBoer v. Snyder,” and “Bourke v. Beshear.” All of these cases challenge the constitutionality of a state ban on gay marriage or a state’s refusal to recognize a gay marriage legally performed in another state. This consolidated case is expected to be the final verdict on same-sex marriage in the United States. The essential question is if these bans and refusal of recognition violate the equal protection and due process clauses of the 14th Amendment.
I, for one, don’t understand what all the fuss is about. My father was raised Catholic—he is now agnostic—and my mother is Jewish. They compromised, and largely raised me without any religion. As a result, I don’t understand a lot of things about religion as a whole. I also don’t understand religious opposition to same-sex marriage. Although I can’t comment on why people hold this belief, I can comment on my own beliefs and why I disagree with theirs.
I believe that same-sex marriage should be legal in all states, and that all states must recognize heterosexual and homosexual marriages as equal in all aspects. Marriage is a right that everyone deserves regardless of sexual orientation.
I believe bans on same-sex marriage are akin to the bans on interracial marriage bans in place before “Loving v. Virginia.” In his opinion for the Court, Chief Justice Earl Warren wrote: “Marriage is one of the ‘basic civil rights of man’… To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State’s citizens of liberty without due process of law… Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.”
Chief Justice Warren’s argument for race can be sustained for the argument of same-sex marriage: the state should not have any place in deciding who someone marries. I believe that same-sex marriage bans violate the equal protection clause of the 14th Amendment because these bans do not allow same-sex couples to have the same standing under law as heterosexual marriages. I also hold that these bans violate the due process clause because same-sex couples are denied the liberty to choose who they marry without due process.
Today, like the time before “Loving v. Virginia,” many people do not believe that all marriages are or should be equal. Opponents of same-sex marriage appeal to religious beliefs. Specifically, opponents talk about Christian values. From what I know, the Bible defines marriage to be between one man and one woman. Thus, it is implied that same-sex marriage is morally wrong. It follows that same-sex marriage should not be legal. Same-sex marriage bans are still in place in several states, and these bans uphold this Christian value.
With all of this talk about religion, I would like to bring up the 1st Amendment. “Congress shall make no law respecting an establishment of religion, or prohibition of the free exercise thereof.” Same-sex marriage bans violate all three parts of the “Lemon” test, a test established in “Lemon v. Kurtzman” (1971) that outlined the types of laws that could be passed regarding religious practice. I believe that gay marriage bans violate the first part of the test, which forbids excessive entanglement with religion. These bans violate the second part, which bans the advancement of the beliefs of one particular religion. The bans also violate the third part because they do not have a secular legislative purpose.
But what about the second part of the Lemon test, that a law must not “advance nor inhibit religious practice”? Wouldn’t legalizing gay marriage inhibit free practice of religion? My answer is no. If your religious beliefs hold that gay marriage is wrong, you can choose to not have a same-sex marriage. Nobody is forcing anyone into having a same-sex marriage. Thus free exercise of religion is not inhibited and same-sex couples will have the freedom to choose who they marry.
In conclusion, denying same-sex couples the right to marry is a violation of the 14th Amendment’s due process and equal protection clauses. In violating these clauses, gay marriage bans have created second-class citizens without the right to marry. Nobody’s rights should be abridged without a compelling state interest. There is no compelling state interest in abridging same-sex couples’ right to marry. Same-sex marriage should be legal and every state should recognize it as such.
The only question that will likely not be answered by the Court in “Obergefell v. Hodges” is if same-sex couples—or gay people for that matter—can be discriminated in housing, employment, and use of services offered by private businesses. That is a fight for another day. As Macklemore says, “A certificate on paper isn’t gonna solve it all but it’s a damn good place to start.”
McCarthy is a member of the class of 2018.