“A right to marry is a fundamental right inherent in the liberty of the person”- how judges have debunked common arguments against same-sex marriage

“A right to marry is a fundamental right inherent in the liberty of the person”  – Justice Kennedy in the US Supreme Court in Obergefell v Hodges (2015)   In the words of the Supreme Court of Connecticut:             “Gay persons have been subjected to and stigmatised by a long history of purposeful and invidious discrimination… Read More »Custom Single Post Header

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“A right to marry is a fundamental right inherent in the liberty of the person”- how judges have debunked common arguments against same-sex marriage

“A right to marry is a fundamental right inherent in the liberty of the person” 
– Justice Kennedy in the US Supreme Court in Obergefell v Hodges (2015)  

In the words of the Supreme Court of Connecticut:
            “Gay persons have been subjected to and stigmatised by a long history of purposeful and invidious discrimination that continues to manifest itself in society.  The characteristic that defines the members of this group – attraction to persons of the same sex – bears no logical relationship to their ability to perform in society, either in familiar relations or otherwise as productive citizens.  Because sexual orientation is such an essential component of personal, even if there is some possibility that a person’s sexual preference can be altered, it would be wholly unacceptable for the state to require anyone to do so.  Gay persons also represent a distinct minority of the population.  It is true, of course, that gay persons recently have made significant advances in obtaining equal treatment under the law.”


Or to put it another way, as the Australian Christian Lobby has recently said, children raised by LGBTIQ parents are the Stolen Generation. Somehow, the conception of children ina loving manner has been equated to the State sanctioned violence and the racist abduction of children.
 The Iowa Supreme Court, in dealing with Iowa laws that prevented same sex couples marrying, said:

            “The civil marriage statute is under-inclusive because it does not exclude for marriage other groups of parents – such as child abusers, sexual predators, parents neglecting to provide child support, and violent felons – that are undeniably less than optimal parents.  Such under-inclusion tends to demonstrate that the sexual-orientation-based classification is grounded in prejudice or overbroad generalisations about the different talents, capacities or preferences of gay and lesbian people, rather than having a substantial relationship to some important objective.”


As the Iowa Supreme Court said:
“This argument seeks to reduce the number of same sex parent households, nudging the laws closer to providing the asserted optimal milieu for children.  Even evaluated in light of this narrow objective, however, the ban on same sex marriage is flawed. 
The ban on same sex marriage is substantially over-inclusive because not all same sex couples choose to raise children.  Yet, the marriage statute denies civil marriage to all gay and lesbian people in order to discourage the limited number of same sex couples who desire to raise children…The statute reveals it is less about using marriage to achieve an optimal environment for children and more about merely precluding gay and lesbian people from civil marriage.
If the statute was truly about the best interest of children, some benefit to children derived from the ban on same-sex civil marriages would be observable.  Yet, the germane analysis does not show how the best interests of children of gay and lesbian parents, who are denied an environment supported by the benefits of marriage under the statute, are served by the ban.  Likewise, the exclusion of gays and lesbians for marriage does not benefit the interests of those children of heterosexual parents, who are able to enjoy the environment supported by marriage with or without the inclusion of same-sex couples.  The ban on same-sex civil marriage can only logically be justified as a means to ensure the asserted optimal environment for raising children if fewer children will be raised within same-sex relationships or more children will be raised in dual-gender marriages.
Yet, the same-sex-marriage ban will accomplish these outcomes only when people in same-sex relationships choose not to raise children without the benefit of marriage or when children are adopted by dual-gender couples who would have been adopted by same-sex couples but for the same-sex civil marriage ban.”


The argument that was put in the case before the Iowa Supreme Court was that procreation is important to the continuation of the human race, and opposite-sex couples accomplish this objective because procreation occurs naturally within this group.  In contrast it was pointed out that same-sex couples can procreate only through assisted reproductive techniques, and some same-sex couples may choose not to procreate.  The Iowa Supreme Court stated:
            “The promotion of procreation as an objective of marriage is compatible with the inclusion of gays and lesbians within the definition of marriage.  Gay and lesbian persons are capable of procreation.  Thus, the sole conceivable avenue by which exclusion of gay and lesbian people from civil marriage could promote more procreation is if the unavailability of civil marriage for same-sex partners caused homosexual individuals to “become” heterosexual in order to procreate within the present traditional institution of civil marriage.
            The briefs, the record, our research and common sense do not suggest such an outcome.  Even if possibly true, the link between exclusion of gay and lesbian people for marriage and increased procreation is far too tenuous to withstand heightened scrutiny.  Specifically, the statute is significant under-inclusive with respective to the objective of increasing procreation because it does not include a variety of groups that do not procreate for reasons such as age, physical disability or choice.  In other words, the classification is not substantially related to the asserted legislative purpose.”
Or as might have been put- gays and lesbians are having kids anyway. It is much better for those children and for society as a whole that those children are wrapped in the protective cocoon of a loving marriage, the fundamental building block of society.


As the Iowa Supreme Court said:
            “While the institution of civil marriage likely encourages stability and opposite-sex relationships, [the question was] whether excluding gay and lesbian people from civil marriage encourages stability in opposite sex relationships.  The County offers no reasons that it does, and we can find none.”



The argument was put that state resources would be conserved by excluding gay and lesbian people from civil marriage.  The argument was based on a simple premise:
            “Couples who are married enjoy numerous governmental benefits, so the state’s fiscal burden associated with civil marriage is reduced if fewer people are allowed to marry. 
            In the common sense of the word, then, it is “rational” for the legislature to seek to conserve state resources by limiting the number of couples allowed to form civil marriages.”
As the Iowa Supreme said:
            “Excluding any group from civil marriage – African, Americans, illegitimates, aliens, even red-haired individuals – would conserve state resources in an equally “rational” way.  Yet, such classifications so obviously offend our society’s collective sense of equality that courts have not hesitated to provide added protections against such inequalities.”
Not surprisingly, the Iowa Supreme Court rejected that argument.


The Iowa Supreme Court said:
            “While unexpressed, religious sentiment most likely motivates many, if not most, opponents of same-sex civil marriage and perhaps even shapes the views of those people who may accept gay and lesbian unions but find the notional of same-sex unsettling.
            Consequently, we address the religious undercurrent propelling the same-sex marriage debate as a means to fully explain our rational for rejecting the dual-gender requirement of the marriage statute.
            It is quite understandable that religiously motivated opposition to same-sex civil marriage shapes the basis for legal opposition to same-sex marriage, even if only indirectly. Religious objections to same-sex marriage are supported by thousands of years of tradition and biblical interpretation.
            The belief that the “sanctity of marriage” will be undermined by the inclusion of gay and lesbian couples bears a striking conceptual resemblance to the express secular-rational for maintaining the tradition of marriage as a union between dual-gender couples, but better identifies the source of the opposition.  Whether expressly or impliedly, much of society rejects same-sex marriage due to sincere, deeply ingrained – even fundamental – religious beliefs.
            Yet, such views are not the only views of marriage.  As demonstrated…other equally sincere groups and people in Iowa and around the (US) have strong religious views that yield the opposite conclusion…The sanctity of all religious marriages celebrated in the future will have the same meaning as those celebrated in the past.  The only difference is civil marriage may take on a new meaning that reflects a more complete understanding of equal protection of the law.”


In 2008 the Connecticut Supreme Court considered the question of civil unions versus marriage.  Connecticut was the second US state to legalise civil union.  Under state law, there was little difference between a civil union and being married, except that one applied to same-sex couples and the other applied to straight couples.  Several couples challenged the law.  The Connecticut Supreme Court upheld the challenge, stating that:
            “In light of the pernicious [and invidious] discrimination faced by gay men and lesbians, and because the institution of marriage carries with it a status and significance that the newly created classification of civil unions does not, the segregation of heterosexual and homosexual couples into separate institutions constitutes a cognizable harm.”
The Court went on to say that the state scheme was discriminatory and that the state had failed to provide sufficient justification as to why same-sex couples were excluded from the institution of marriage.
The Court said that the Connecticut legislature had permitted same-sex couples all the rights, except one:
            “The right to marry, a right that has “long been recognised as one of the vital personal rights essential to the orderly pursuit of happiness by free men [and women] and fundamental to our very existence and survival.”


            “From their beginning to their most recent page, the animals of human history reveal the transcendence and importance of marriage.  The lifelong union of a man and a woman always has promised nobility and dignity to all persons, without regard to their station in life.  Marriage is sacred to those who live by the religions and offers unique fulfilment to those who find meaning in the secular realm.  This dynamic allows two people to find a life that could not be found alone, for a marriage that becomes greater than just the two persons.  Arising from the most basic human needs, marriage is essential to our most profound hopes and aspirations.
            The centrality of marriage to the human condition makes it unsurprising that the institution has existed for millennia and across civilisations.  Since the dawn of history, marriage has transformed strangers into relatives, binding families and societies together.  Confucius taught that marriage lies at the foundation of government…this wisdom was echoed centuries later and half a world away by Cicero, who wrote: “The first bond of society is marriage; next, children; and then the family”…There are untold references to the beauty of marriage and religious and philosophical texts spanning time, cultures, and fates, as well as in art and literature in all their form.  It is fair and necessary to say these references were based on the understanding that marriage is a union between two persons of the opposite sex…The ancient origins of marriage confirms its centrality, but it has not stood in isolation from developments in law and society.  The history of marriage is one of both continuity and change.  That institution – even as confined to opposite – sex relations – has evolved over time. 
            For example, marriage was once viewed as an arrangement by the couple’s parents based on political, religious, and financial concerns; but by the time of the Nation’s founding, it was understood to be a voluntary contract between a man and a woman…As the role and status of women changed, the institution further evolved.  Under the centuries-old doctrine of coverture, a married man and woman were treated by the State as a single, male-dominated legal entity…As women gained legal, political, and property rights, and as society began to understand that women have their own equal dignity, the law of coverture was abandoned…These and other developments in the institution of marriage over the past centuries were not mere superficial changes.  Rather, they were deep transformations in the structure, affecting aspects of marriage long viewed by many as essential…
            These new insights have strengthened, not weakened, the institution of marriage.  Indeed, change to understandings of marriage are characteristic of a Nation where new dimensions of freedom become apparent to new generations, often through perspectives that begin in pleas or protests and then are considered in the political sphere and the judicial process.
            This dynamic can be seen in the Nation’s experiences with the rights of gays and lesbians.  Until the mid 20th Century, same-sex intimacy long had been condemned as immoral by the State itself and most western nations, a belief often embodied in the criminal law.  For this reason, among others, many persons did not deem homosexuals to have dignity and their distinct identity.  A truthful declaration by same-sex couples of what was in their hearts had to remain unspoken.  Even when a greater awareness of the humanity and integrity of homosexual persons came in the period after World War 2, the argument and gays and lesbians had a just claim to dignity was in conflict with both law and widespread social convention.   
           Same-sex intimacy remained a crime in many States.   Gays and lesbians were prohibited from most government employment, barred from military service, excluded under immigration laws, targeted by police, and burdened in their rights to associate…For much of the 20th Century, moreover, homosexuality was treated as an illness.  When the American Psychiatric Association published the first Diagnostic and Statistical Manual of Mental Disorders in 1952, homosexuality was classified as a mental disorder, a position adhered to until 1973…Only in more recent years have psychiatrists and others recognised that sexual orientation is both a normal expression of human sexuality and immutable…
            In the late 20th Century, following substantial cultural and political developments, same-sex couples began to lead more open and public lives and to establish families.  This development was followed by quite extensive discussion of the issue in both governmental and private sectors and by a shift in public attitudes towards greater tolerance.  As a result, questions about the rights of gays and lesbians soon reached the Courts, where the issue could be discussed in the formal discourse of the law…Like choices concerning contraception, family relationships, procreation and child rearing…all decisions concerning marriage are among the most intimate that an individual can make.  Indeed, the Court has noted it would be contradictory “to recognize a right of privacy with respect to other matters of family life and not with respect to the decision to enter the relationship that is the foundation of the family in our society…”


As the Supreme Judicial Court of Massachusetts has explained, because:
“…it fulfils yearnings for security, safe haven, and connection that express our common humanity, civil marriages and esteemed institution, and the decision whether and whom to marry is among life’s momentous acts of self-definition”…
Justice Kennedy said: 

“The nature of marriage is that, through its enduring bond, two persons together can find other freedoms, such as expression, intimacy, and spirituality.  This is true for all persons, whatever their sexual orientation…There is dignity in the bond between two men or two women who seek to marry and in their autonomy to make such profound choices [another] basis for protecting the right to marry is that it safeguards children and families and thus draws meaning from the related rights of child rearing, procreation, and education…but marriage also confers more profound benefits.  By giving recognition and legal structure to their parents’ relationship, marriage allows children “to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives.…

“Marriage also affords the permanency and stability important to children’s best interests…
As all parties agree, many same-sex couples provide loving and nurturing homes to their children, whether biological or adopted.  Hundreds of thousands of children are presently being raised by such couples…most States have allowed gays and lesbians to adopt, either as individuals or as couples, and many adopted and fostered children have same-sex parents…This provides powerful confirmation within the law itself that gays and lesbians can create loving, supportive families.
Excluding same-sex couples from marriage thus conflicts with essential premise of the right to marry.  Without the recognition, stability, and predictability marriage offers, their children suffer the stigma of knowing their families are somehow lesser.  They also suffer the significant material cost of being raised by unmarried parents, relegated through no fault of their own to a more difficult and uncertain family life.  The marriage laws at issue here thus harm and humiliate the children of same-sex couples…
That is not to say the right to marry is less meaningful for those who do not or cannot have children.  An ability, desire, or promise to procreate is not and has not been a prerequisite for a valid marriage in any State.  In light of precedent protecting the right of a married couple not to procreate, it cannot be said the Court or the States have conditioned the right to marry on the capacity or commitment to procreate.  The constitutional marriage right has many aspects, of which childbearing is only one…The limitation of marriage to opposite-sex couples may long have seemed natural and just, but it’s inconsistency with the central meaning of the fundamental right to marry is now manifest…The right to marry is fundamental as a matter of history and tradition, but rights come not from ancient sources alone…Many who deem same-sex marriage to be wrong reach that conclusion based on decent and honourable religious or philosophical premises, and neither they nor their beliefs are disparaged here.  But when that sincere, personal opposition becomes an act of law and public policy, the necessary consequences to put the imprimatur of the State itself on an exclusion that soon demeans or stigmatizes those whose own liberty is then denied…Here the marriage laws in force…are in essence unequal: same-sex couples are denied all the benefits afforded to opposite-sex couples and are barred from exercising a fundamental right, especially against the long history of disapproval of their relationships, this denial to same-sex couples of the right to marry works a grave and continuing harm.  The imposition of this disability on gays and lesbians serves to disrespect and subordinate them…The right to marry is a fundamental right inherent in the liberty of  the person.”
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