[Print] Opinion: Why Gay Marriage is Legal


Last week, two landmark civil rights cases on same-sex marriage were argued before the Supreme Court. The first case, Hollingsworth v. Perry, is a lawsuit filed by gay couples claiming that Proposition 8, an amendment banning gay marriage in California, is unconstitutional. The California administration elected not to defend Prop 8, agreeing with the plaintiffs, so the official sponsors of the referendum – “ProtectMarriage.com” and its leader Dennis Hollingsworth – have acted as defendants. Based on transcripts of oral arguments from last week, it seems like the Supreme Court might take the easy way out and rule that the case was improperly granted, since private citizens have never before defended a law in court. 

The other gay marriage case before the Supreme Court, Windsor v. United States, is a lawsuit by a gay woman claiming that the Defense of Marriage Act, a Clinton-era bill which withholds marriage benefits from married gay couples, is unconstitutional. Oral arguments last week gave hints that Windsor may be a simple federalism case, as the Supreme Court seemed unconvinced that the federal government has the power to regulate marriage at all.

Although the cases argued before the Supreme Court last week may be stifled by timidity and procedural considerations, the real legal issues at play here have been debated extensively over the last three years. The Defense of Marriage Act has been ruled unconstitutional eight times in federal courts (including twice already in Windsor), and the current Prop 8 case, Hollingsworth v. Perry, was fast-tracked to the Supreme Court after two high-profile victories for the plaintiffs. Several federal courts have already ruled that these laws violate the Due Process and Equal Protection Clauses of the Fifth and Fourteenth Amendments, the latter of which proclaims that the State cannot “deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” 

Senator Portman made waves in the mainstream press when he switched his decades-old position on gay marriage after his son came out.

When the courts ruled on due process, they first affirmed that the right to marry was a well-established Constitutional right. The court then had to decide whether same-sex marriage was protected under the definition of marriage. In the first Prop 8 verdict, the court cited definitions of marriage from dozens of precedent cases: definitions like “marriage is a coming together for better or worse, hopefully enduring and intimate to the point of being sacred,” or, “an expression of emotional support and public commitment.” Nowhere in these definitions, the opinion shows, has there been discussion of procreative ability or intent, and the State has never enquired about these things before issuing marriage licenses. The definition of marriage has historically only been restricted by things like race and gender in eras of racial or gender discrimination – restrictions which are now recognized as shameful. For the estimated ten million gay people in our nation, civil unions are not a legitimate solution because they do not carry the same social connotations as marriage and were created only so that the State could offer benefits to gay couples while explicitly denying them the ability to marry. It is clear based on legal precedent that gay Americans enjoy the same Constitutional right to marriage and the pursuit of happiness as everybody else.

Under the Due Process clause, the State cannot infringe upon Constitutional rights without due process of law and a compelling justification. Since the right for gay couples to marry is protected under the Constitution, the constitutionality of bills like DOMA and Prop 8 hinges on whether same-sex marriages are harmful for society – if they are, the State could claim a compelling interest in regulating or discouraging them.  To answer this question, the court in Hollingsworth heard testimony from eleven expert witnesses. The plaintiffs’ nine witnesses included a Yale social historian, a Stanford political scientist, the Republican mayor of San Diego, San Francisco’s chief economist, and a Cambridge developmental psychologist. These witnesses were selected not for their politics but as internationally recognized leaders of their fields, and they presented an overwhelming body of evidence in support of gay Americans. Allowing gays to marry improves their productivity and mental health, increases their contribution to society, reduces healthcare costs for the government, improves overall economic outlook, and creates an institution of marriage that is more equal and more principled, the scholars agreed.

The court agreed, too. When it first ruled on Hollingsworth, included in its opinion were several “findings of fact”, or facts which had been thoroughly proved by testimony in the trial. The court had seen hundreds of hours of expert testimony, and it concluded based on a consensus of academic information that individuals do not generally choose their own sexual orientation, that there are significant harms to society incurred by banning same-sex marriage, and that children raised by same-sex couples are at least as well-adjusted as children raised by opposite-sex couples. Clearly, the arguments in favor of Prop 8 had not been very persuasive. One of the defendants’ two witnesses, David Blankenhorn, admitted under cross-examination that “we would be more American on the day we permitted same-sex marriage than we were on the day before” and has since publicly changed his position and fully supports gay marriage. The second witness was described by the court as advancing personal views without a sufficient body of evidence. It should be noted that the defendants had ample opportunity to find more credible witnesses – had there been any to find.

In the Prop 8 case, the court explicitly affirmed that it would have deferred to legislative or popular judgment if there had been “at least a debatable question” whether discrimination against gays had any sort of compelling justification. This sentiment has been echoed by other federal courts in trials concerning gay marriage. However, there is no longer any reason to believe that such a debatable question exists; everything we know about our society tells us that allowing gays the right to marry would improve our nation’s economic, social, and moral strength without harming straight couples. After six months of trial and deliberation, Proposition 8 was ruled “unconstitutional under any standard of review” in federal court, as had already happened several times with DOMA. 

Marriage traditionalists argue that court decisions like these miss the point. They argue that opposite-sex parenting is far superior to same-sex parenting, or that same-sex marriages infringe upon the freedoms of those who oppose them. Statistics discount the first argument: 7% of children from opposite-sex marriages are held back a year during their academic careers, compared to 9.5% of children of same-sex partners. This two-and-a-half percentage point gap disappears after controlling for household income, which is pretty extraordinary considering the stigmas of persecution that laws like Prop 8 and DOMA continue to propagate among non-traditional families. One would expect that this effect would, if anything, stack the odds against children raised by homosexual couples. Any achievement gap that does exist is a reflection of widespread discrimination, not of gay Americans’ abilities as parents. There has never been a causal link established between the two. 

It is also absurd to argue that recognizing same-sex marriage infringes upon straight Americans’ religious freedoms. Allowing homosexuals to marry does not infringe upon the rights of heterosexuals any more than allowing people to practice Judaism or Islam infringes upon the religious rights of Christians. Civil and religious institutions of marriage are entirely distinct, and specific religious beliefs, no matter how widely-held, have no place in our legislation. After all, religious authorities do not grant marriage licenses and no church should be forced to marry anyone they wish. Along the same lines, those churches should not be able to withold civil institutions such as marriage licenses from citizens. The United States is, after all, a free country.

As a nation, we need to step back and think about why exactly some of us oppose same-sex marriage. That group is dwindling even as we speak. Senator Rob Portman of Ohio strongly opposed gay marriage throughout his career as a politician representing Ohioan voters. In 1996, Senator Portman co-sponsored the Defense of Marriage Act (DOMA) which restricted the federal definition of marriage to one man and one woman as well as prevented interstate recognition of homosexual marriages. Senator Portman then continued his stance against both gay rights and homosexual marriage by voting in 1999 to prevent gay couples in DC from adopting children. Last month, however, he announced that he had changed his stance on same-sex marriage and became the first Republican Senator ever to support it. 

The impetus? Senator Portman’s 21-year-old son came out as gay in a letter to his parents. Senator Portman remarked on the decision to change his stance and the revelation that his son was gay: “It allowed me to think of this issue from a new perspective, and that’s of a Dad who loves his son a lot and wants him to have the same opportunities that his brother and sister would have — to have a relationship like [my wife] and I have had for over 26 years.” For the first 55 years of his life, Senator Portman viewed gays as second-class citizens whose deviant behaviors were constitutionally unprotected. He saw gays as threats to a stable society and believed they were incapable of the same love he shared with his wife. It was easy for him to believe this because he was ignorant enough about homosexuals to mistake them for their stereotypes. That misinformed view resulted in a position he maintained for decades and supported laws which may now be ruled unconstitutional. 

Then as soon as Senator Portman encountered homosexuality in his own family, everything changed. It probably took exceptional courage for him to stand up in front of the media last month and admit he had been wrong, and for that Senator Portman should be commended. Of course, many have pointed out that this sudden change of heart may be related to the current debate surrounding the Republican Party’s future and the possible nominees for President in 2016. That theory of political gamesmanship, however, is missing the point entirely. The fact of the matter is that his prejudice had shaped his beliefs and his legislation for his entire career, and if he had just taken the time to learn more about the people he was actively repressing then he would have come to his senses a long time ago. Marriage has been redefined before, to eliminate racial restrictions and de-systematize gender inequality. It’s time to do it one more time.  

–Taylor D. Cathcart