Gay Marrage and Its Constitutionality

Final Draft

Research Paper

July 22, 2005

Gay Marriage and Its Constitutionality

The problem with the issue of gay marriage is being faced across the country. This issue has grown in popularity as we have progressed through our stages of taboo to acceptance of gays and their lifestyle. The media and remodels have expressed their acceptance of the issue by exploring the lifestyle and publicizing it. Now California has moved to the forefront of modern attempts to eliminate the codified restrictions on their life. With a high gay population and being one of the most populated states California has been the foreground for the step to make gay marriage deemed unconstitutional.

The main issue in California especially concerns two codes in the states constitutions. The first code is Family code 300; this states “marriage is a union between a man and a woman.”(news.findlaw.com) the second code 308.5, “only a marriage between a man and woman is valid or recognized in California” (In Re of Marriage of Klug) .these crucial words are causing the battle. Going through lower courts and reaching higher appealot seems to be the goal of many of the judges and jury’s. The general theme is for letting the case be decided in a way that it goes to a higher court. No court wanting the responsibility or clout of being the one to overturn the ruling.

In situations like this one, one might just want to refer to the constitution of America but when the constitution was created laws that dealt with the welfare of the persons living within a state, were dealt with for and by the state. Builders of our modern system needed these rights to be reserved. The argument being posed by objectors to the modern sections on gays and their bond through matrimony is simple. The objectors to the lack of gay supporting legislation that exists now say that those codes violate and do not go along with the Protections Clause. “No person shall be denied equal protection under the law. (Romer V Evenns (1996) 517 US. 620,635; Board of Supervisors V. Local Agency Formation 6., Supr Cal 4th, 913) (news.findlaw.com)

When understanding this case one must look at the true question being posed by people who don’t like the way it is now. Do those two sections have a purpose and are they still needed in the states constitution. The state which oppose change, states that the sections is upholding the beliefs and tradition of the state. It is “deeply rooted in our states history.” (Article IV, Sec 2)They argue that why should we rewrite the definition of marriage to one that has never existed.

The argument of tradition and historical background is a valid one. It has genuinely been used defense of many laws. The courts have followed as well. The only problem with this defense is, when it is the sole defense it can’t hold up and later can be found unjustified. Take Perez V. Sharp, a landmark case in which the state used tradition to justify the banning of interracial marriages. It can be clearly seen how that is absurd. However to the law makers it is not absurd, since traditionally blacks and whites were not allowed to marry. (Loving ET V. Virginia) the states first reason is too weak and should not hold.

The second reason the states propose that the modern section should stay is that, since the State of California has provided same-sex couples with all the same rights. “It is not irrational for California to afford substantially all the rights and benefits to same-sex couples while maintaining the common and traditional understanding of marriage.” (news.findlaw.com)

I f you use the Rational Basis Test, which would be to prove a legitimate purpose for denying same-sex couples. The states did what seems to be the fair and just thing by wanting to provide equal treatment as far as legal forms and rights but are not fulfilling their duty. A rational reason for same sex couples still not to be allowed to be called married is not provided. By it being allowed what problem to the public good can created.

This approach by the states is sketchy one considering the striking parallels to the separate but equal case Brown V. Board of Education of Topeka. (Wolters, Ramond)Well both on the surface looked good but later found that this separation of people causes a person to have feeling of inferiority and that they are not on the same level. This should be ringing many bells to many activists, the similarity is quite remarkable. Even those who don’t agree with gay marriage like me must be able to see this was tried before with race. When a distinction is made among people that are perceivably equal, yet makes them feel below normal. No person should