On December 20,
2013 a Federal judge overturned Utah's constitutional ban on Gay
Marriage, stating that it violated the 14th amendment of
the United States Constitution. This decision was made by a single
judge, but it overturned the work and will of more than 1.5 million
Utahns, and a decision made by the Supreme Court which dictates that
the states have the power to define marriage within their own
jurisdiction. The gay marriage debate is many-faceted and has raised
many question, not the least of which is (1.) Who has the authority
to decide whether homosexual couples should be allowed to marry, and
(2.) What should be the ultimate decision.
The federal
judiciary has become arguably the most powerful branch of government
in our constitutional republic. The US Supreme Court ruled in
Marbury v Madison, that the
judiciary had the power of judicial review; that is, to review and
rule on the constitutionality of laws passed by the legislatures,
both Federal and State, in the United States. While this ruling
provides an extra check on the legislative powers, especially of
Congress, it expands the power of the judiciary and leaves it
virtually unchecked.
The
judiciary is meant to be as apolitical as possible, and so is
appointed and ratified by elected officials (except in Nevada,) and
is as unaccountable to to anyone as a government official can be.
This process is in and of itself a necessary check on the Judiciary
to ensure that justice is accomplished, unbiased by popular opinion;
but it becomes a problem when the individual judges, especially in
the higher courts, assume more power than they were given, or become
activist judges; especially where now they currently not only have
the power to adjudicate trials but to adjudicate whether a law itself
is valid,
and to create new law under the doctrine of Stare Decisis.
The 10th
District Court has the authority to make the decision they did, but
that authority was assumed by another court's interpretation of the
constitution, not by the constitution itself.
Another
reason the Federal courts have been involved in the legalities about
gay marriage is because, according to the constitution, each state is
required to give “full faith and credit” to the actions of the
other states. This raises problems when two women legally marry in a
state that allows homosexual marriages, then move to a state that
doesn't, which subsequently won't grant them the same privileges and
exemptions given to heterosexual couples in said state, or if the
couple wants to get divorced in a state that doesn't recognize their
marriage. Any case relating to Constitutional provisions is in the
jurisdiction of the federal court, however the U.S. Supreme court
recently affirmed that the states have jurisdiction to define
marriage.
Marriage is a very personal agreement between individuals, and some
question whether government should even be involved in the process in
the first place. But the fact is they are, and they make a lot of
money from it. So because the government is involved it is necessary
for the government to define what marriage is. Traditionally
Marriage has been defined as a union between a man and a woman, but
until recently, that was really the only form of marriage that anyone
in society cared to make, and some would argue that because society
has changed so should the definition.
Which
brings us to one of the major disagreements of both sides: what is
the purpose of marriage? Proponents of Straight marriage say
marriage between a man and a woman is a union formed and government
sanctioned because it is the best for protecting and raising
children. They also argue that there are a plethora of studies
showing that the social and developmental needs of children are best
served by having a mother and a father, and that when either of these
are missing the children suffer. Opponents argue that not all
straight couples are able to have children, and that if that is the
definition of marriage than infertile and aged lovers shouldn't be
allowed to marry, neither should single
parents be allowed to raise children.
On
the other hand proponents of Gay marriage say that marriage is a
committed relationship between any two people who love and are
attracted to each other, and that they have a fundamental
right
to marry who they love, that is protected by the 14th
amendment to the constitution, states:
No
state shall make or enforce any law which shall abridge the
privileges or immunities of citizens of the United States; nor shall
any state 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.
And
the they also claim that the Supreme Court's decision in Loving v
Virginia (June 4th,
1967) sets a precedent of equal protection for homosexual marriages.
In the decision Justice Warren wrote:
Marriage
is one of the "basic civil rights of man," fundamental to
our very existence and survival.... 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. The Fourteenth Amendment requires that the freedom of
choice to marry not be restricted by invidious racial discrimination.
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.
Opponents
of this theory argue that this defines marriage solely by sexual
fulfillment, and using this precedent to justify homosexual marriages
leads to a host of unintended consequences.
One
of the unintended consequences in this case is a group of stake
holders that
often
get overlooked: NAMBLA, or the North American Man/Boy Love
Association, and other organizations like them. The state of Colorado
recently legalized Civil Union for homosexual couples, which puts
them on a status some of the same privileges as married couples, but
not all. NAMBLA is considering
suing the state for their right to a civil union between men and
under-aged boys, legalizing statutory rape, so long as the man and
boy loved each other. While pedophilia and other practices, such
as
polygamy and bestiality, are abhorrent to today's society we must
remember – argues the opposition – that so was homosexuality less
than a hundred years ago; and if we redefine marriage to be a union
of any two people who love and are attracted to each other, we
essentially define marriage out of existence.
Because
the issues surrounding the 10th
district court's overturning of Utah's Gay Marriage Ban are so
varied, and so complex there is no simple solution. The Federal
courts have jurisdiction over the matter because it's opponents claim
it infringes on their constitutional rights, while the Supreme Court
ruled that the states have jurisdiction to decide the issue. And the
question of whether or not the ban should be upheld, regardless of
who has jurisdiction, is just as difficult: people love each other
and want to be married, why does anyone else have the right to tell
them they can't be; yet at the same time the decision affects more
than just those wishing to form homosexual relationships, including
children and those who wish to form other kinds of relationships and
unions.
Because
the issue is so polarized, no matter what is decided someone is going
to be hurt by the outcome. That being said, overall it seems that
the least harm is done to society when the states are allowed to
decide for themselves how to define marriage, while also finding a
way to give full faith and credit to the marriages of other states.
But if the activist judges in the federal courts continue stepping
out of bounds, one possible solution is for the states themselves to
keep asserting their powers by re-passing their legislation, or
continuing to enforce it despite the court's ruling.
President
Andrew Jackson wrote to John Coffee, after Georgia failed to comply
with the supreme court decision in Worchester v
Georgia, "...the
decision of the Supreme Court has fell still born, and they find that
they cannot coerce Georgia to yield to its mandate."
He is also said to have declared “John Marshall has made his
decision, now let him enforce it!” In other words, the courts have
no executive powers, they have no armies and no police force to
enforce their rulings. While the right to ignore the decision of
federal courts is not explicitly granted in the constitution, neither
is the court's right to judicial review, and it could provide an
essential check to the nearly unchecked judicial branch.
In
regards to what decision ought to be made, I will postulate that law
is meant to be a reflection of what society values, and it would seem
that society has a choice at this point to value the protection of
children and traditional morality; or to value the right of adults,
and possibly minors, to be sexually fulfilled in a government
recognized relationship. While it may hurt certain adults feelings
and deny them some of the benefits that traditionally married couples
receive, it is in society's best interest to value morality over
sexual gratification, and the protection of the institution which
results in the best reared citizens and the propagation of its race,
over the supposed right to have a government recognized relationship
of your choice.
The
Supreme court may have stated that “marriage is one of the
fundamental rights of man,” but it also states that this is so
because it is “fundamental to our very existence and survival.”
Though the path may create ripples, and even be one going upstream,
the best solution is for the state of Utah to assert its sovereign
power and declare, in the best interest of society, that marriage is
between a man and a woman.
