Deciding who can decide marriage equality


The question of whether or not same-sex couples should have the right to marry is currently being resolved through referendums. Citizens are the ones who vote on the issue of marriage equality, ultimately deciding if gay and lesbian relationships will have the same recognition as heterosexual ones. However, with so many people viewing marriage equality as a human rights issue, it begs the question: is a public forum the ideal way to resolve this civil rights dispute?

The Defense of Marriage Act (DOMA) and California’s Proposition 8 cases currently at the United States Supreme Court will decide if marriage equality is within state or federal jurisdiction by determining if marriage is a constitutional right or not.  

President Obama, who says that marriage equality is a constitutional right, said it was a state issue in 2012 – and historically that has been the case.

In the 1979 Supreme Court case Hisquierdo v. Hisquierdo, the court ruled that “[T]he whole subject of domestic relations of the husband and wife, parent and child belong to the law of the states and not the law of the United States.” 

Consequently, states were able to decide who could marry and who could not, which resulted in numerous marriage laws across the country. States could determine what characteristics affected the right to marry such as age, race, and sexual orientation.

Race was eventually ruled as an illegitimate determinant of marriage eligibility. The 1967 United States Supreme Court case Loving vs. Virginia ruled that state bans on interracial marriage violated the fourteenth amendment, thus legalizing interracial marriage throughout the nation. 

The public may not have been ready for race mixing, but their sentiments – and public opinion polls – could not override a constitutional right to equal protection. Such was the case in Mississippi, which did not officially legalize interracial marriage until 2000 and through a 59 percent in favor and 41 percent against public referendum.

Supporters of marriage equality view same-sex marriage in a similar light. A third year law student at UC Hastings, who asked not to be named, told 429Magazine that, “it’s a constitutional right and you can’t vote away someone’s right.”

He added that to deny the right to marry based on sexual orientation essentially creates second-class citizens. 

Gab Espinsosa, a second year law student also at UC Hastings concurred. “Ideally I would like the public to decide, but there are many members of the public who will make decisions based on preconceived notions,” he told 429Magazine.

“Gay marriage is not a special privilege. Members of the LGBT community merely want to be treated in the same manner as the majority. Further the fact that one group may have equal rights before the constitution as the majority does not infringe on the majority’s rights.”

The best case scenario for advocates like the UC Hastings students is for the United States Supreme Court to rule that Proposition 8 and DOMA violate the fourteenth amendment, same as did state bans on interracial marriage. 

The worst-case scenario would be the court rules that marriage equality is a state’s right. 

Another famous equality movement that often evokes similar sentiments as the Gay Rights Movement and the Civil Rights movement is the Women’s Suffrage Movement, which failed in the Supreme Court. 

In 1872, the United States Supreme Court unanimously decided that neither the privileges and immunities or the equal protection clause of the fourteenth extended the right to vote to women.  

It was not until the passage of the nineteenth amendment in 1920, which proclaims, “The right of a citizen to vote shall not be abridged by the United States or by any state on account of sex,” did women gain the right to vote. This occurred nearly 40 years later and after drastic changes in the political climate in the United States for women, including the “Bull Moose Party,” making women’s suffrage a part of their party platform.

Proposition 8 and DOMA rulings will be monumental in gaining further legal perspective into whether or not marriage equality is under state, federal or constitutional jurisdiction. What the court will ultimately decide is an open question.  

Marriage equality supporters still remain optimistic nevertheless.

“Right now in the context of change there are many positives for the LGBT community,” said Espinosa. 

“The justices opinion on gay marriage seem to be more balanced and the outcome of the recent elections indicate that the American people are more open to pro LGBT laws and political influences.”

The third-year law student added that marriage equality is also just practical. 

“It cost businesses money who want to recognize those marriages, but can’t due to taxes, causes procedure hiccups, if the validity of a marriage varies from state to state, and immigration problems, if one member of a couple is not a citizen,” he said. 

“The way we conduct our lives changes drastically based on whether or not the government recognizes our marriage.”


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