The U. S. Court of Appeals for the Sixth circuit upheld the state’s bans on gay marriages in Kentucky, Michigan, Ohio and Tennessee. Kentucky. One of the common points in the four briefs is “The Constitution’s Fourteenth Amendment does not settle the definition of marriage, so that definition is left to the states.”
Due Process and Equal Protection Clauses of the Fourteenth Amendment have been widely used in court cases over the years. Although the Equal Protection Clause has been read to protect against the discriminatory use of classifications besides race and national origin, in areas outside of race discrimination, the equal protection clause was not traditionally a major consideration. So, while the Due Process Clause was widely used to strike down state laws in the early 1900’s, the Equal Protection Clause did not seem to carry as much power.
The Equal Protection Clause of the Fourteenth Amendment of the U.S. Constitution prohibits states from denying any person within its jurisdiction the equal protection of the laws. In other words, the laws of a state must treat an individual in the same manner as others in similar conditions and circumstances
Race, national origin, non U S citizenship, gender or illegitimate status of a child have all been classified for Equal Protection in the Fourteenth Amendment. Do ‘Same Sex Marriage’ and ‘Traditional Marriage’ need to be classified for Equal Protection in the Fourteenth Amendment? Is it unconstitutional to classify Same Sex Marriage for protection under the equal protection clause and not classify Traditional Marriage for the same rights?
The marriage question appears to raise the query whether same sex couples are in similar conditions and circumstances as traditional marriage couples. Are same sex couples similar in condition and circumstances as male-female couples where intercourse and procreation result in offspring? Is the biological reality that couples of the same sex do not have children in the same way as couples of opposite sexes, and that couples of the same sex do not run the risk of unintended offspring, enough difference to make the equal protection clause not applicable due to the fact that same sex couples are not similar in condition and circumstance to traditional married couples?
Generally, the question of whether the equal protection clause has been violated arises when a state grants a particular class of individuals the right to engage in an activity while denying other individuals the same right. There is no clear rule for deciding when a classification is unconstitutional. In order for a classification to be found permissible under this test it must be proven, by the state, that there is a compelling interest to the law and that the classification is necessary to further that interest.
And what is the justification for DOMA (Defense of Marriage Act)? One stated reason is that the traditional definition of marriage codified in Section 3 fosters the relationships optimal for procreation thus ensuring stable generational continuity in the United States. The way humans procreate is through the union of a sperm from the male and an egg from the female. Procreation cannot be achieved through homosexual sexual acts. The second justification is that it encourages the creation of a stable relationship that facilitates the rearing of children.
“What remains is a debate about whether to allow the democratic processes begun in the States to continue in the four States of the Sixth Circuit or to end them now by requiring all States in the Circuit to extend the definition of marriage to encompass same sex couples. Process and structure matter greatly in American government. Indeed, they may be the most reliable, liberty assuring guarantees of our system of government, requiring us to take seriously the route the United States Constitution contemplates for making such a fundamental change to such a fundamental social institution.”
One of the cases challenging the constitutionality of the definition of marriage is a lesbian couple living in Michigan. Their initial complaint was against the adoption laws in Michigan, complaining that they violated the Equal Protection Clause of the Fourteenth Amendment. Each of them had adopted children as single parents and they both wanted to adopt the other partner’s children. The state moved to dismiss the lawsuit for lack of standing, and the district court tentatively agreed. Rather than dismissing the action, the court “invit[ed the] plaintiffs to seek leave to amend their complaint to . . . challenge” Michigan’s laws denying them a marriage license. DeBoer and Rowse accepted the invitation and filed a new complaint alleging that Michigan’s marriage laws violated the due process and equal protection guarantees of the Fourteenth Amendment.
Would this issue have been better served as an adoption question rather than a definition of marriage question? It appears the Fourteenth Amendment of the Constitution does not define marriage. According to U S Supreme Court rulings in the past, the Fourteenth Amendment also does not clearly define the classes that should be equally protected. Now the courts have added adoption for same sex couples to the questions about what is covered in the Fourteenth Amendment, as well as marriage as an equally protected classification. What will happen to the Defense of Marriage Act? Is same sex adoption really linked to marriage? The U S Supreme Court Decision on Same Sex Marriage may or may not clarify some of the questions about the Fourteenth Amendment of the Constitution as the U S Supreme Court cannot rule to CHANGE the U S Constitution.
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