5.26.2009

Constitutionality of Proposition 8

(or lack thereof)


***ATTENTION***This is about a 10-20 min. read, but If you TRULY care about the issue, regardless of your position, then take the time to read some real legal, psychological, and social data. If you cannot take the time to read the whole article, then your comments deserve the same amount of attention that you have given to my article***


 There are many organizations and individuals in the United States who argue that same-sex marriages should be prohibited at both the state and national level. Indeed, eight states have already signed gay marriage bans into their constitutions. Additionally, eighteen states have voted to add language to their constitutions banning same-sex unions. Many opponents of same-sex marriage incorporate false preconceived notions, singular religious convictions, and inaccurate interpretations of, or utter disregard for, the U.S. Constitution in order to support their position against homosexuals. Their reasoning, however, does not endure when tested on a constitutional basis. Hence, it is the purpose of this report to systematically prove that state bans on same-sex marriage are unconstitutional.
 The basis for this argument comes from the United States Constitution itself. More specifically, the Fourteenth Amendment's equal protection and due process clauses, as well as the First Amendment's establishment and free exercise clauses, combine to make a resounding argument in favor of legalizing same-sex marriage. Moreover, a large portion of support for same-sex marriage is accumulated through the United States Supreme Court within its rulings, written opinions, and various constitutionality tests. Investigating this issue reveals the shocking reality that homosexuals’ fight for equal rights closely resembles that of the African-American civil rights movement in the United States.

Background Information
Crucial facts upon which many of the arguments found in this paper are based originate from the American Psychological Association (APA) and the Sexuality Information and Education Council of the United States (SIECUS). Thus commencement requires the citation of beliefs held by the American Psychological Association in regard to homosexuality. The American Psychological Association is a “scientific and professional organization that represents psychology in the United States.” With over 150,000 members, the APA is the largest association of psychologists in the world (APA).
The American Psychological Association defines sexual orientation as, “an enduring emotional, romantic, sexual or affectional attraction to another person.” Sexual orientation, according to the APA, is not a black and white issue; rather, it exists along “a continuum that ranges from exclusive homosexuality to exclusive heterosexuality and includes various forms of bisexuality.” The American Psychological Association strongly affirms that, “human beings cannot choose to be either gay or straight.” Furthermore, a person’s sexual orientation transpires, for most people, in “early adolescence” sans any previous sexual experiences. Notably, the APA states that “although we can choose whether to act on our feelings, psychologists do not consider sexual orientation to be a conscious choice that can be voluntarily changed.”
Pressures from religious organizations, or family members, have caused many homosexuals to seek treatment. Some search for a cure to their feelings because part of society deems their feelings to be unnatural and unacceptable. However, “the reality is that homosexuality is not an illness, mental disorder, or an emotional problem. It does not require treatment and is not changeable” (APA).
Objective research taken from the past thirty-five years shows that homosexuality is not “associated with mental disorders or emotional or social problems.” The reason that homosexuality was previously believed to be a mental illness was due to mental health professionals and society using, and accepting, “biased information.” Prior research studies of lesbians, gays, and bisexuals “involved only those in therapy,” hence skewing the results of the research. When researchers finally looked at “data about people who were not in therapy,” the concept that homosexuality was a mental disease was swiftly found to be incorrect (APA).
Homosexuality was removed from the official manual that contains mental and emotional disorders back in 1973 after the American Psychiatric Association validated the “importance of new, better designed research.” For more than twenty-five years now, the APA, along with other psychological associations, has strongly “urged all mental health professionals to help dispel the stigma of mental illness that some people still associate with homosexual orientation” (APA).
In regard to parenting, studies have been conducted comparing groups of children who were brought-up by homosexual parents against those raised by heterosexual parents. These studies find “no developmental differences between the two groups of children in four critical areas.” Most notably, the children’s “intelligence, psychological adjustment, social adjustment, and popularity with friends” were all unaffected by the sex or sexual orientation of those who raised them. The APA strongly refutes any beliefs that a parent’s sexual orientation can dictate that of his or her children.
Tying into the concept of homosexual parenting, the American Psychological Association acknowledges that the belief that “gay men have more of a tendency than heterosexual men to sexually molest children” is a biased and factually unsupported myth that is inherently incorrect. The APA finds no evidence to support that this shocking notion is a reality of any sort.
The APA also notes the importance of homosexuals being able to “come out” and be honest with themselves and others. The ability for a homosexual to do this is “important to their mental health.” Moreover, the “process of identity development for lesbians, gay men, and bisexuals called ‘coming out,’ has been found to be strongly related to psychological adjustment.” Being able to be honest with themselves and those important in their lives is essential to the betterment of a homosexual’s “mental health and…self-esteem” (APA).
Higher levels of individually-held prejudices towards homosexuals have a directly proportional relationship to a person’s lack of exposure and acquaintanceship to homosexuals. Studies show that persons who have “the most positive attitudes toward gay men, lesbians and bisexuals are those who know one or more gay, lesbian or bisexual persons well – often as a friend or co-worker.” Consequently, psychologists affirm that pessimistic views in regard to homosexuals as a group are “prejudices that are not grounded in actual experiences,” rather these feelings and beliefs are, “based on stereotypes and prejudice” (APA). People are often afraid of, or opposed to, that which they do no know or fully comprehend.
Because of lack of correct information, and dissemination of inaccurate and biased data about gays, lesbians, and bisexuals, the Sexuality Information and Education Council of the United States (SIECUS) reports that homosexuals tend to experience “high rates of discrimination and harassment” from an early age (SIECUS). Because homosexuals are a minority population, and since most schools do not protect them against discrimination and harassment, homosexuals are more susceptible to an assortment of detrimental behaviors, “including skipping school and attempting suicide.” Homophobic comments and persecution coupled with a lack of protection at school and negative messages from uninformed peers are fairly common in the life a student who happens to be homosexual (SIECUS).
Statistically, over “twice as many lesbian, gay, and bisexual students (19%) report being threatened or injured with a weapon at their public high school” during the school year than heterosexual attendees (8%). As a result, homosexual students are “twice as likely (16%) to have skipped school in the last month for safety concerns as other students (8%).” Sadly, attempted suicide rates for homosexual students are “four times higher” with 33% having attempted to commit suicide within the past twelve months as compared to only 9% of those who identify as heterosexual students (SIECUS).
Discrimination at schools for gays, lesbians, and bisexuals can be through both words and actions. Homosexual students “often hear homophobic remarks from both students and staff.” Often, these students are “verbally, physically, and sexually harassed” solely because of their sexual orientation. A staggering 92% of gay, lesbian, bisexual, and transgender students in both middle school and high school report that they “frequently or often hear homophobic remarks, such as ‘faggot,’ ‘dyke,’ or the expression ‘that’s so gay’ from their peers.” On top of this, close to one in five of these students also heard homophobic comments from faculty or staff at their school (SIECUS).

Harassment Data (Cannot Make Tables Show Up On Here)

Percent of middle and high school aged homosexuals that say they are verbally harassed at school including name calling or threats, because of their sexual orientation. 84%
Percentage of these students that report having been sexually harassed over the past school year, including sexual remarks or touching, because of their sexual orientation. 65%
Percentage who report having been physically harassed, including being shoved or pushed at school, because of their sexual orientation. 39%
Percentage of homosexual students in middle and high schools say they feel unsafe at school. 64%
Percentage of homosexual high school seniors who have experienced higher frequencies of verbal harassment at school that do not plan to attend college. 13%
Percentage of homosexual seniors who report that they have never or rarely experienced verbal abuse who do not plan to attend college. 7%
(Poll data taken from the Sexuality Information and Education Council of the United States)

Adding to these numbers are state laws and policies that also contribute the intolerance expressed toward homosexuals. In fact, most state’s policies do no include protection for lesbian, gay, bisexual or transgender (LGBT) students. Currently only eight states and the District of Columbia have legal protections for students based on their sexual orientation. Amazingly, six states outright ban “advocacy of homosexuality” at school. As a result, over 75% of students in America go to schools in states where sexual orientation is not a protected class under the law as religion, race and national origin are under federal law. On top of this, several states including Arizona, Alabama, Mississippi, South Carolina, Texas, and Utah do not allow teachers to portray homosexuality as an acceptable lifestyle. Shockingly, in a few of these states students were told that homosexual behavior was a criminal offense notwithstanding the 2003 Supreme Court ruling in Lawrence v. Texas in which such laws were deemed to be unconstitutional (SIECUS).
Furthermore, with all of these obstacles facing young homosexual students, these young kids are essentially ignored or discriminated against in Abstinence-Only-Until-Marriage Programs at their schools. Most of these programs “omit sexual orientation completely or show clear bias against homosexuality.” Some lessons go so far as to equate “homosexuality with clearly immoral and illegal behavior, such as incest … pedophilia … and adult-child sex;” all of which goes directly against the findings of the APA (SIECUS).
Finally, the distressing story of the murder of Matthew Shepard in 1998 further solidifies the fact that the homosexuals’ struggle for equal rights today echoes of the battle that African-Americans faced. Matthew was a twenty-one year Wyoming old college student who was beaten to death solely because of his homosexuality. Matthew’s parents described him as "...an optimistic and accepting young man ...[who]... had a special gift of relating to almost everyone. He was the type of person that was very approachable and always looked to new challenges. Matthew had a great passion for equality and always stood up for the acceptance of people's differences." Sadly, the intolerance of two men, Russell Henderson and Aaron McKinney, would be the cause of the abrupt end to Matthew Shepard’s life (Matthew Shepard Foundation).
The attack occurred when Shepard went out to a bar; it was there that he met McKinney and Henderson. The two posed as gay men and convinced Shepard to let them give him a ride home. After leaving the bar, Shepard was tortured, pistol whipped, tied to a fence in a remote area in the countryside, and left to die. Shepard was found eighteen hours later by a passerby, still tied to the fence. He was still alive, but in a coma. Matthew had severe brain stem damage and a fracture that ran from the back of his head to the front of his right ear. He was beaten so severely that doctors found his injuries to be inoperable. Matthew Shepard was pronounced dead at 12:53 a.m. on October 12, 1998 at Poudre Valley Hospital in Fort Collins (Matthew Shepard Foundation).
Taken as a whole, these true stories and information combine to paint a vivid picture of discrimination toward gays, lesbians, bisexuals, and transgender students. Harassment at school from fellow students and even faculty and staff can leave a lasting imprint on the lives of a child. The data revealed by these polls shows that discrimination against homosexuals is widespread and unchecked in the public school system. Students are taught that homosexuality is immoral and the concept prevails. Clearly, in some people the hatred for homosexuals grows so strongly that they are moved to take such actions as seen in the story of Matthew Shepard. With attitudes like these toward homosexuals, and lack of protection for students who identify as gay, these children end up being raised in an unforgiving world. Much like the lives of African-Americans in past decades (and arguably today), homosexuals have to struggle for acceptance. The environment that young homosexual kids face at school, coupled with state and national laws that discriminate against adults of non-heterosexual orientation, create very dark and scary world for them to live in. The outlook for their future may seem bleak.
In total, the facts provided by the American Psychologists Association and the data from the Sexuality Information and Education Council of the United States combine to show the reader the many unwarranted hardships experienced by homosexuals in this country. The United States Constitution has the provisions and clauses necessary to protect homosexuals, if only the legislators and justices would work to do so. Much like the times of the civil rights movements for African-Americans, homosexuals are struggling for recognition and equal protection under the law. Next, by taking a look at the United States Constitution, one will see how same-sex marriage bans are indeed violating the rights of same-sex couples. The information you just read in regard to discrimination against homosexuals creates a valid and vivid description of why these bans are being put in place.

The Fourteenth Amendment: Equal Protection & Due Process

Specific language of the United States Constitution to be discussed in the section: The Equal Protection clause of the Fourteenth Amendment states that, “no state shall… deny to any person within its jurisdiction the equal protection of the laws.” The Due Process Clause of the Fourteenth Amendment reads, “No State shall ... deprive any person of life, liberty, or property, without due process of law.” This concept can also be found in the Fifth Amendment with very similar wording, in which it reads, “No person shall be ... deprived of life, liberty, or property, without due process of law.”
The concept of Equal Protection has been elucidated by several Supreme Court cases which can be used to address the issue of same-sex marriage. The enactment of the Fourteenth Amendment is important in regard to the state side of the same-sex marriage debate as it protects the people’s rights from being violated by the state and its leaders. Because of the Fourteenth Amendment, states can not deprive people of equal protection of the laws. These constitutional facts, together with scientific facts from the American Psychologists Association, combine to create a remarkable case in favor of same-sex marriage.
One of the first cases ever to involve equal protection was that of Strauder v. West Virgina. In this case, Strauder, an African-American man was convicted of murder by an all-white jury. At this time, West Virginia did not allow African-Americans to serve on a jury. Strauder was convicted of murder, but appealed under the Fourteenth Amendment’s Equal Protection Clause saying that West Virginia’s exclusionary policy in jury selection was a clear violation of the U.S. Constitution (Oyez.org).
Justice William Strong gave the Supreme Court’s majority opinion. The Court held that to deny citizen involvement in the administration of justice exclusively on racial grounds "is practically a brand upon them, affixed by law; an assertion of their inferiority, and a stimulant to that race prejudice which is an impediment to securing to individuals of the race that equal justice which the law aims to secure to all others” (Findlaw.com).
Indeed, the current issue of same-sex marriage can be said to parallel that of racist attitudes of the past. To deny a citizen the ability to get married solely on their sexual orientation, an immutable characteristic akin to race, is, as Justice Strong said, putting a brand on homosexuals, declaring inferiority, and a cause to further intolerance. Indeed, same-sex marriage bans can, and do, undermine the goal of granting equal justice to everyone living in this nation.
Another case worth noting is that of Plessy v. Ferguson. In this case, the Supreme Court ruled that the Louisiana Jim Crow law that forced the segregation of whites and African-Americans on the railroads by color-divided railroad cars was, in fact, constitutional. The Court through Justice Henry Brown held that the equal protection clause was created to uphold equality in civil rights and not in social arrangements. Hence, the separate but equal law was deemed reasonable because of “the established usages, customs and traditions of the people” (Katsh 35).
This case was to be later overturned, but of interest here is the dissenting opinion of Justice Harlan. In his palpable expression of dissent, Harlan wrote “Everyone knows that the statute in question had its origin in the purpose, not so much to exclude white persons from railroad cars occupied by blacks, as to exclude colored people from coaches occupied by or assigned to white persons…In the view of the Constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our Constitution is color-blind, and neither knows nor tolerates classes among citizens.” He concluded by saying that, “arbitrary separation” was “a badge of servitude wholly inconsistent with the civil freedom and the equality before the law established by the Constitution” (Findlaw.com).
Once again the parallels can be drawn between the struggle for equality for African-Americans in the United States, and that of the discrimination against homosexuals that we see today. Justice Brown claimed that equal protection was only for upholding equality in civil rights, but not social arrangements. Additionally, he relied on the “customs and traditions of the people” to back up his point. Harlan called Brown out on this blatant misinterpretation of the state law and his disregard for the language and intent of the United States Constitution (Findlaw.com).
Clearly, customs and traditions of the past have been overruled and declared incorrect by science, judges, and evolving standards of society. The situation in Plessy v. Ferguson parallels the situation that homosexuals face today in trying to attain marriage licenses and the rights allotted to married couples. The creation of laws to specifically ban same-sex marriages is, indeed, a subjective separation, similar to racism, which does not align with the goals of civil freedom and equality recognized in our constitution.
The landmark case that essentially overturned Plessy v. Ferguson was Brown v. Board of Education. In this case, the parents of an African American child tried to enroll her in an all-white school. They were rejected, but this attempt, and consequential rejection, gave them standing in court. Of the four African-American schools that were involved in this case, three were found to be substandard when compared to their white counterparts. The Court also looked beyond the physical and tangible concerns when comparing the schools. Psychological reports found that segregation of white and minority children, especially when sanctioned by law, gave the minority children a sense of inferiority which negatively affected their motivation to learn (Eskridge 120).
Marriage bans against homosexuals are, for all intents and purposes, a separate but equal stance by those who push for and pass such laws. African-Americans were allowed to attend schools and receive an education during the times of separate but equal, but they did not receive equal treatment or equal educational benefits, and the resulting psychological harm separate but equal caused was unwarranted.
For over thirty-five years the American Psychological Association has recognized that homosexuality is natural and unchangeable. Yet our laws do not allow for homosexual marriages. Thus, once again, we run the unreasonable and unjust course that separate but equal did in the educational systems. Sure, homosexual relationships are allowed for, but the quality of benefits allowed and psychological hurt placed on an individual solely because of this immutable characteristic, just like skin color in Brown v. Board, are factors that weigh in heavily. Three of the four African American schools in Brown v. Board of Education were found to be inferior to their white counterparts by trial courts. Yet, plaintiffs in this case didn’t just want the courts to order the schools to be equal, they wanted to challenge the holdings in Plessy v. Fergusson that separate but equal was constitutional. Similarly, the rights allotted to homosexuals in regard to marriage are nonexistent or limited in many states. Homosexuals, as human beings under the same constitution, should not be treated as separate citizens of a lower class; yet, that is what we see today. “Separate,” as Justice Earl Warren wrote, “is inherently unequal” (Eskridge 121).
Turning to marriage-related cases now, we look at the Supreme Court ruling in Loving v. Virginia. In this 1958 case, an African-American woman and a white man were married in the District of Columbia. Upon returning to Virginia, the couple was charged with being in violation of the state’s anti-miscegenation statute which prohibited inter-racial marriages. The Lovings were found guilty and were given one year jail sentences or a choice to leave Virginia for twenty-five years. The Supreme Court, upon review, found that the Virginia law banning inter-racial marriage was in violation of the Equal Protection Clause of the Fourteenth Amendment. The decision was unanimous (Wardle 39).
In the written opinion, the Court held that divisions such as this that were based on race were “odious to free people” and subject to “rigid scrutiny” under the Equal Protection Clause. Overall, the Court ruled that the Virginia law had no legitimate purpose other than “invidious racial discrimination.” The state argued that the law should be considered constitutional as it was applied to both African-American and white people equally, but the Supreme Court declared that racial cataloging was not subject to a rational purpose test (Wardle 169).
In the written opinion, the Court also wrote that marriage “is one of the basic civil rights of man, fundamental to our very existence and survival.” The denial of this fundamental freedom, the Court said, was “as unsupportable a basis as the racial classifications embodied in these statuettes, 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 Court then concluded that 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.” Overall, there was no purpose, separate from racial discrimination, which could justify this statute. The law was only in place to maintain white supremacy (Wardle 170).
The case of Loving v. Virginia is a perfect example of historically-based discrimination in marriage. The Court realized that there was not a legitimate reason to prohibit inter-racial marriage and that the law was, in fact, just another form of racism that violated the Equal Protection Clause.
Once again, the gay marriage mirrors that of discrimination against African-Americans. The state of Virginia tried to argue that since the law applied to both white and black citizens, that it was not violating any constitutional regulations. The state was clearly overlooking the fact that inter-racial love could exist, and should be accepted, rather than be disallowed on racially prejudiced grounds.
Similarly, today one must question the barring of same-sex marriages. Just as white people could not marry black persons, now there are laws trying to assure that men cannot marry men, and women cannot marry women. Once again, the law does not take into account the fact that homosexuality, like race is an immutable characteristic recognized by the American Psychological Association. The Loving’s could not help that they loved each other, and they could not help the fact that they were born of two different skin tones. Similarly, homosexuals cannot change their sexual orientation or feelings of love for members of the same sex.
Turning to actual same-sex marriage cases, now we consider the case of Goodridge v. Department of Public Heath which was decided by the Massachusetts Supreme Court. In this case seven same-sex couples unsuccessfully applied for marriage licenses in Massachusetts. After being denied the right to marry, they filed suit against the Massachusetts Department of Public Health, which was in charge of making and enforcing marriage rules in the state. The plaintiffs argued that they were denied equal protection under the Massachusetts Constitution (Hull 167).
Notably, the plaintiffs did challenge under the State’s constitution, rather than the United States Constitution. Several reasons can be amassed to explain this course of action. For one, the language of the Massachusetts Constitution was slightly broader than that of the U.S. Constitution in regard to equal protection. Secondly, the decisions could not be reviewed by the United States Supreme Court because states are given the right to interpret their own constitutions so long as they do not give less protection than that of the U.S. Constitution, directly conflict with the U.S. Constitution, or contravene previous Supreme Court rulings (Hull 204).
The decision to challenge the law at only the state level was, for the purpose of the pro-same-sex marriage crowd, a correctly calculated choice. Due to the fact that homosexuality and same-sex marriages are hot button issues, the Supreme Court would have to tackle the issue while keeping in mind current state laws, bans, societal attitudes, and evolving standards of decency. To lose at the Supreme Court level would be analogous to digging an incredibly deep hole out of which the movement would have then to try to climb. The American Psychologists Association, as noted previously, sees that the vast majority of those who do not know any homosexuals do not have opinions that are “grounded in actual experiences.” (APA). Much like the struggles of African-Americans for equal rights, homosexuals will have to gain acceptance by starting small and showing society that preconceived notions and prejudices are not correct. Thus, the decision to start the battle at the state level was a wise one.
The majority decision in Goodridge v. Department of Public Health found that denying same-sex couples the right to marry violated the equal protection clause of the Massachusetts Constitution. Writing for the majority, Chief Justice Margaret Marshall declared that the state could not “deny the protections, benefits and obligation conferred by civil marriage to two individuals of the same sex who wish to marry.” Additionally, the court said that the constitution of Massachusetts “affirms the dignity and equality of all individuals” and “forbids the creation of second-class citizens.” Marshall continued by stating that the state “had no constitutionally adequate reason” to block marriage rights to same-sex couples. Notably, the Court determined that the State did not have a rational basis for its denial of marriage for same-sex couples on the grounds of equal protection and due process. Marriage, the court said, has significant social and tangible benefits.
Essentially, the state of Massachusetts was no longer allowed to deny homosexuals the same rights given to heterosexual couples. Liberties and equalities found in the constitution all protect citizen’s freedoms from unwarranted government intrusion into protected spheres of life. Whether or not we marry, and to whom we choose to marry, are amongst the most basic of liberty rights in the United States (Findlaw.com). The Court’s rhetoric in the case of Goodridge v. Department of Public Health mirrors that of previous cases discussed in the report. The Massachusetts Supreme Court did, in fact, recognize that homosexuals were being treated as second class citizens and thus denied basic rights that are provided for through the United States Constitution to all of its people; not just heterosexuals.
In this case the state tried to argue, on a rational basis level, that the ban on homosexual marriages was legitimate for three reasons. First, they claimed that marriage was created for the sake of procreation and advancement of the species. Second, children, they asserted, would be harmed by allowing same-sex marriages to occur. Finally, the government maintained that by banning same-sex marriages they were protecting state and private financial resources (Findlaw.com).
In response to these statements, the Massachusetts Supreme Court found that none of these arguments passed the rational basis test. Procreation, and thus fertility, the court said, was not a prerequisite for marriage, nor grounds for divorce. Commitment, on the other hand, was the centerpiece to marriage, not children. Clearly, we could see the outrage that would arise from heterosexual couples if they were not allowed to marry because one or both of the partners were found to be sterile. Additionally, it is extremely hard to foresee that the Supreme Court would ever find a law constitutional that required married couples to have children (Eskridge 96).
The welfare of children, the Court said, was not promoted by prohibiting same-sex marriages; nor was child welfare harmed by allowing members of the same-sex to get married. This assessment goes hand in hand with observations by the American Psychologist Association which stated that, “there are no developmental differences between the two groups of children (raised by heterosexual versus homosexual parents) in four critical areas” including, “intelligence, psychological adjustment, social adjustment, and popularity with friends” (APA). The APA also declares that parental sexual orientation has no effect on that of the child. Hence, this claim by the state was also found to be erroneous.
In regard to the state’s claim to protecting state and private financial resources, the Court also found this to be a senseless assertion. No studies showed that same-sex couples were more or less dependent on the government. Thus, they would not necessarily be gaining or losing more than any other heterosexual married couple once they were allowed to marry. Additionally, the court pointed out, most benefits were conditioned on showing a need for dependence on the government and not just given out arbitrarily (Eskridge 98).

The First Amendment: Establishment Clause & Free Exercise Clause

Thus far this report has attempted to show the reader that same-sex marriage bans violate the constitution via provisions found in the Fourteenth Amendment. Intertwined throughout have been momentous facts provided by the American Psychologists Association and the Sexuality Information and Education Council of the United States. These facts have shown that homosexuality is a normal phenomenon, as unchangeable as one’s skin pigmentation. From all of this, one can gather that misinformation, outright lies, and discrimination against homosexuals are what have ultimately produced a nation in which legislators and leaders have deemed it acceptable for openly discriminatory legislation to exist.
In looking to determine just who in the United States is pushing the hardest for same-sex marriage bans we find that the answer comes in the form of religious leaders and their organizations. The frontrunner in the anti-homosexual movement is the Catholic Church. In response to Massachusetts’ allowance for same-sex marriage, the state’s four bishops have “mounted an unprecedented campaign to sway the votes of Catholic politicians” and the minds of religious people. In June 2003, during the landmark case of Goodridge v. Department of Public Heath, the bishops’ first statement denouncing same-sex marriage was released. Within a week of the civil rights victory for same-sex couples, the bishops “issued a joint statement opposing the historic ruling, which was either read from the pulpit or distributed at mass across the state — or both.” This was just the beginning (Boston Phoenix).
Then, on January 16th, the church mailed out a four page long professionalized information pamphlet to one million Catholics. The information inside insisted, that as Christians, they must push for a constitutional amendment that bans homosexuals from marrying. Later, on February 8th, the archbishop spoke to the crowd at a massive anti-gay-marriage rally in Boston. In his speech he requested that everyone “stand together” to “affirm marriage and family” (Boston Phoenix).
Author and Physicist Heinz Pagels once wrote, “Science cannot resolve moral conflicts, but it can help to more accurately frame the debates about those conflicts.” The scientific data from reputable sources such as the American Psychologists Association and the Sexuality Information and Education Council of the United States have indeed provided us with the information to help resolve this moral conflict. Characteristically, the Catholic Church has decided to ignore these scientific facts and base it’s teachings on tradition, fear, guilt, and mysticism. The teachings of the church are not unlike those of the Abstinence-Only-Marriage-Programs that work to alienate homosexuals in schools and provoke harassment and discrimination (APA).
Without a doubt the church and its people are allowed to express their opinions in this, a free country. However, several sources and interviews revealed that the church may have overstepped its bounds. The Boston Phoenix reported that in ten interviews with state representatives and senators, they found reason to believe that the Church has “intentionally or not – fostered a campaign of harassment against legislators who support civil-marriage rights for same-sex couples.” Additionally, the Church has “found a powerful friend in House Speaker Tom Finneran” (Boston Phoenix).
Finneran, a devoted Catholic, strongly opposes same-sex marriage. As Speaker, he must approve any documents that make it onto the House floor. On March 11th, he allowed a legal memorandum written by a Harvard law professor and others to be placed on every legislative seat in the House chamber. The memo “argued against a ‘compromise’ amendment that would ban gay marriage while establishing civil unions because it would raise "serious religious liberty issues — particularly with respect to the Church and other traditional religious organizations." The allowance of such articles on the House floor was seen as questionable at best. Some legislators felt that this crossed the line created by separation of church and state (Boston Phoenix).
Furthermore, numerous Catholic House members and Senators who have voted with the same-sex marriage side have been “battled from pillar to post” by priests and Church representatives. These elected officials have been openly condemned from those behind the pulpits and altars. Several have taken “viciously homophobic correspondence” from Catholic followers; having even been told that they do not have the entitlement to attend church. As one legislator, soberly put it, "I would describe the Church’s tactics as thug-like, diabolical, and totally void of openness” (Boston Phoenix).
The Church has intimidated representatives of both houses; followers have made intimidating phone calls and sent condemning emails telling them to “burn in hell.” Priests have threatened to “find someone else to run against” and defeat the incumbents with a goal of replacing them with “someone else who can respect God’s will.” Bishop O’Malley has even told state legislators that they have an "obligation" not to receive communion if they take any position contrary to Church teachings. It is worthy to keep in mind that these are just a handful of church-and-state incidents that have taken place in just one state in the United States (Boston Phoenix).
Legislators who openly disagree with the church’s beliefs on same-sex marriage report that they have “never seen the church push so fiercely or so thoroughly on any previous public-policy.” This notion is amazing considering the other topics on which the church has been noted for taking a strong stance, including: service to the poor, opposing the death penalty, and condemning abortions. One state senator even told the Boston Phoenix that he had “never been so pressured by the Church before,” and that, “It has leaned on [him] with an intensity and a consistency” that he had never seen “in any special-interest group.”
From all of this we see that the Catholic Church in Massachusetts, and across the nation, has not only gone to battle against homosexuals, but has also gone so far as to discriminate against non-homosexuals who have viewpoints contrary to their own. Thus, the next part of this report will delve into the connection between the church and the state. Although the church may have good intentions, they are only working, as legislators have pointed out, to add discriminatory language to the constitution for the first time in history. Indeed, we find that a same-sex marriage ban created for religiously grounded reasons is in fact unconstitutional.
In turning to the First Amendment one finds the strongest constitutional argument for debunking the false legitimacy of religious reasoning in regard to same-sex marriage. In whole, the first amendment reads:
 "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
 The main rhetoric of the first amendment concerning this issue is found in the first half of the amendment. The establishment and free exercise clause, which reads, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof" signifies many different and consequential things.
 First and foremost, this creates what many refer to as the "separation of church and state," which is a reality that has been solidified by numerous Supreme Court rulings. One of the more elucidating written opinions by the Court on this topic was penned by Justice Black in 1947 in the case of Arch R. Everson v. Board of Education of the Township of Ewing, et al (cite source). In the opinion, Justice Black wrote that the establishment of religion clause of the First Amendment means "at least" this:
"Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever from they may adopt to teach or practice religion. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa. In the words of Jefferson, the clause against establishment of religion by law was intended to erect 'a wall of separation between Church and State'” (Findlaw.com).
 Taking these words, the religiously based case against same-sex marriage erodes significantly. The passing of a law banning gay marriage does, in fact, aid the cause of, and give preference to any religion wishing to do so. Constitutional issues arise when occurrences, such the Catholic Church’s excessive pressuring in Massachusetts, take place. Additionally, same-sex marriage bans force homosexuals to conform to laws based on religious beliefs. What's more, it can easily be maintained that such a law would "punish" those in favor of same-sex marriage for not holding the same "religious beliefs or disbeliefs” (Findlaw.com).
The separation of church and state has been the central idea for such an abundance of Supreme Court cases that the Court has set up various tests in order to assist in adjudication. The three main tests that have been
 implemented on numerous occasions include the Lemon test, the Endorsement test, and the Coercion test.
 The Lemon test, first appeared in the 1971 Supreme Court case of Alton J. Lemon, et al. v. David H. Kurtzman, Superintendent of Public Instruction of Pennsylvania et al. The Lemon test has three parts, or prongs that must all be met in order for a law to be deemed constitutional. First, the Court establishes that the government's action must have a legitimate secular purpose. Second, the government's action must not have the primary effect of either advancing or inhibiting religion. Finally, the government's action must not result in an "excessive government entanglement with religion." If any of these three prongs are violated, then the law in question is found to be unconstitutional under the establishment clause of the first amendment (Cornell University Law School).
 Applying the Lemon test to the issue of same-sex marriage, one finds that state bans on gay marriage should, most certainly, be deemed unconstitutional. First off, it is hard to find any legitimate secular
purpose in prohibiting a marriage between two people simply because of their sex. As demonstrated in Goodridge v. Department of Public health, arguments made by the state in regard to procreation, child welfare, and protection of assets were all struck down by the Court. In light of events in Massachusetts, it is even more difficult to claim that such a ban serves a legitimate secular purpose when the issue is pushed by the Church and anti-homosexual-pro-church literature is left upon the seats of legislators on the House floor (Findlaw.com).
 Secondly, a government endorsement of a same-sex marriage ban would clearly have a primary effect of advancing religious, and as depicted in Massachusetts’ case, Christian beliefs. Utilizing reasoning, solid evidence, and data from sources such as the APA and SEICUS, and the fundamental language found in the Fourteenth and First Amendments, it is reasonably affirmed that the primary force of such a ban would indeed have an exclusively religious basis.
Finally, the government's actions in banning same-sex marriage would need to be deeply rooted, and therefore, deeply entangled with religion. In the case of Massachusetts it might appear that the opposite is occurring, but to the same effect; religious establishments are becoming excessively entangled in government. As depicted by the Boston Phoenix sources, this entanglement has, at times, come with verbal threats, public condemnation, and extraordinary intimidation.
The next method of examination for consideration is the Endorsement test. Created by Justice O'Connor, the Endorsement test says that a law is unconstitutional if it favors one religion over another in a way that makes some people feel like outsiders and others feel like insiders (Findlaw.com).
 Scrutinizing gay marriage bans under the Endorsement test, one finds that the allowance of such a ban does favor one religion or type of religious view over another. All religions in the United States are not opposed to homosexuality or the concept of homosexual marriage. In fact, the United Church of Christ (UCC), a religious organization that has over one million members in the United States, supports same-sex marriage. They even passed a resolution announcing their support for "equal rights for couples regardless of gender.” Additionally, the Episcopal Church (the US branch of the Anglican Communion), along with the Evangelical Lutheran Church, permit same-sex unions. Meanwhile the Presbyterian Church has not yet taken a stance in either direction (BBC News). Clearly, a ban on same-sex marriage would ultimately be an endorsement of one particular religious view over multiple other opinions and beliefs in existence.
Indeed, a couple, be it "straight" or "gay," may not hold any religious beliefs; notwithstanding, such a ban emphatically makes a homosexual couple feel like the outsiders, while heterosexual couples the insiders. Joining this second-class sentiment would be non-secular organizations such as the United Church of Christ. By passing a same-sex marriage ban, the government would be affirming the beliefs on some religious groups and casting aside the convictions of many others. 
 The last Supreme Court test of interest is the Coercion test. Created by Justice Kennedy, the standards for the test declare a law to be constitutional even if it recognizes or accommodates a religion, as long as its demonstration of support does not appear to coerce individuals to support or participate in a religion (Findlaw.com).
 When this test is applied to same-sex marriage bans we find same-sex marriage bans to recognize and accommodate specific religious beliefs. This, according to Justice Kennedy, would be perfectly fine until one considered the consequences of a same-sex marriage ban. Indeed, the government's clear support of such a law would coerce individuals to support or conform to a specific group’s religious beliefs.
The vast majority of people are brought up in families that teach them certain religious values and beliefs. By passing such a ban, the government would be affirming religious beliefs and telling homosexuals, of all ages, that they are not accepted and that they need to conform to explicit religious beliefs. By allowing a same-sex marriage ban to slip past the Coercion test, the government would be coercing people to behave a certain way, thus violating the accepted notion of separation of church and state.
 In summation of these tests, the Court has found that the government cannot promote one religion or faith group over another, it cannot favor a religiously based life over a secularly grounded life, and it cannot assist in promoting a secularly based life over a religious life. Indeed, the constitutionally based and Supreme Court affirmed separation of church and state bars religious favoritism and religion-based interpretation outright in the case of same-sex marriage (Findlaw.com)

Overview of Same-sex Marriage
The case for same-sex marriage is one built on solid facts. Respectable, legitimate sources such as the world’s largest association of psychologists (APA) and the United States Sexuality Information and Education Council (SIECUS) recognize homosexuality as an immutable, natural trait. This fact thus places sexuality on the same plane as other unchangeable characteristics such as race or national origin. People do not choose where they want to be born, what skin color they wish to be, or what sexuality they will be assigned. Surely, with conditions as they are today in the United States, nobody would freely choose to be discriminated against, barred from marriage, and deprived of equal protection rights.
Currently, homosexuals in the Unites States are being harassed, abused, and treated as second class citizens. Younger homosexuals in school are harassed by fellow students and school faculty alike (SIECUS). Homosexuals of all ages are mentally abused and lied to by the dissemination of lies about people of their sexual orientation from schools, religious organizations, interest groups, and their own legislators. Laws have been enacted, based off of these falsehoods, in order to deprive homosexuals of equal rights, liberties, and protections. Unfortunately, in the worst cases, we see innocent people such as Matthew Shepard being murdered solely because of their sexual orientation. Homosexuals deserve equal protection under the law just as African-Americans and other minorities do.
Interest groups, and most notably, select religious organizations, such as the Catholic Church, oppose same-sex marriage vehemently despite scientific fact supported by the APA. Ignoring facts, and relying on old texts, they aggressively lobby state and national legislators, sometimes to shocking extremes. Yet, the First Amendment and the Supreme-Court-accepted concept of separation of church and state prevent the government from passing legislation that favors on religious group. Undoubtedly, not all religions condemn homosexual behavior. Thus, it would be inherently unconstitutional for the government to openly endorse one select viewpoint and legislate based upon this singular belief system.
In total, the language found in the United States Constitution does not allow for same-sex marriage bans. The right to equal protection under the law and the limitations placed on governmental-religious entanglement make such a prohibition unconstitutional outright. Historic Supreme Court rulings and written opinions show that it is unlawful to treat certain groups as second class citizens based on immutable characteristics. Justice Harlan’s written dissenting opinion in Plessy v. Ferguson laid the groundwork for civil rights cases to come. The eventual overturn of Plessy and victory for African-American rights in Brown v. Board of Education showed that separate but equal was, in The Court’s eyes, anything but equal. In Loving v. Virginia the Court revealed that marriage was a basic civil right that should not be infringed upon by the government. Finally, in Goodridge v. Department of Public Health the Supreme Court of Massachusetts declared that prohibiting same-sex couples from marrying resulted in treating homosexuals as second-class citizens and that such bans were found to be a direct violation of the Fourteenth Amendment’s Equal Protection Clause.
Taken as a whole, bans on same-sex marriage in the United States appear to stem from the dissemination of false beliefs about homosexuals and the ability of select religious interest groups to guilt and pressure the nation and its legislators into conformity. The problem stems from the bottom up. Starting abruptly in childhood public schools provide sex education that is biased and unforgiving toward homosexual behavior (SEICUS). Private religious schools indoctrinate children with anti-homosexual religious beliefs that disregard professional or scientific evidence to the contrary. Today in the United States those opposed to same-sex marriage are waging an emotional battle for a ban, rather than accepting scientifically and intellectually-based facts in their minds and hearts. The success seen in favor of homosexuals and same-sex marriage in Massachusetts creates a glimmer of hope for equal rights in the United States. It is my hope that this trend will continue and that this civil rights endeavor, much like the struggle of African-Americans, will be a success.

Works Cited

American Psychologists Association Home Page. “Answers to Your Questions About Sexual Orientation and Homosexuality.” 1997. November 27th, 2007. http://www.apa.org/topics/orientation.html.

The Sexuality Information and Education Council of the United States. 1997. December 6th, 2007.
http://www.siecus.org/policy/LGBTQ_FS.pdf.

Matthew Shepard Foundation. 1998. December 6th, 2007. http://www.matthewshepard.org/site/PageServer.

Oyez.org. 1995. Various cases and opinions. October 27th, 2007. www.oyez.org.

Findlaw.com. Various cases and opinions. 1994. November 9th, 2007. www.findlaw.com.

Lombardi, Kristen. “The Catholic War Against Gay Marriage.” Boston Phoenix on the Web March 6th, 2004. December 6th, 2007. http://bostonphoenix.com/boston/news_features/top/features/documents/037...

The Cornell University Law School Legal Information Institute Homepage. 1992. November 9th, 2007. http://www.law.cornell.edu/supct/html/historics/USSC_CR_0403_0602_ZO.htm...

BBC News. “US Church Backs Same Sex Marriage” BBC News Website July 5th, 2005. http://news.bbc.co.uk/2/hi/americas/4651803.stm

Vago, Steven. Law and Society. New Jersey: Pierson Education, 2006.

Eskridge, William. The Case For Same Sex Marriage. New York: The Free Press, 1996.

Wardle, Strasser, Duncan et al. Marriage and Same Sex Unions. Connecticut: Praeger Publishers, 2003.

1 comment:

Kelly said...

I'm sure you will be able to someday soon if you choose to!