The Ongoing Saga of Same Sex Marriage

The issue of gay marriage has received much attention in the past months. Recently, the United States Senate held a vote on a proposed amendment to the United States Constitution that would have addressed the issue. Had this measure passed, the amendment would have defined marriage as a union between a man and a woman and could have paved the way to a new amendment. However, this measure received no where near the required two-thirds majority of the Senate to move the issue along. Many Democrats were upset saying that the matter was simply designed to help the Republicans performance in the November elections. While the recent Senate measure did not pass, it did show that the matter was a hot button issue and quite important to a number of grass root conservative organizations.

One of the criticisms of the recent proposed amendment was that it was largely unnecessary as a number of the several states have previously addressed the matter of same sex marriages, prohibiting them through legislation or state constitutional amendment. Another similar criticism was that the federal government, no matter which side of the issue one may support, has no business being involved in the issue.

This last week this point was underscored in double fashion as the highest court in two states considered cases centered around the issue of gay marriage and both ruled against the issue, dealing a powerful blow to supporters of same sex marriages and showing that while federal action, particularly definitive federal action, may be slow in coming, at the state level, results will be clear and, based on these two decisions, not as supporters of the same sex marriage issue may like.

In New York, a group of 44 gay and lesbian couples had previously initiated an action to overturn a

New York
law that was nearly a century old which defined marriage as a union between a man and a woman. The crux of the gay and lesbian couple’s argument was that the law amounted to sex discrimination and as a result, was unconstitutional. The New York court said that while the right to marry was a fundamental right, same sex marriages were not a “deeply rooted” right as the issue had only recently been asserted. The Court went on to say that if the matter was to be addressed, it would have to be done by the legislature.

Critics of the

New York
law and supporters of the right of same sex marriage were quick to voice their opposition and disappointment with the decision. An attorney for the gay and lesbian petitioners said the decision was “tragic” and even “insulting.” Others compared the decision to discrimination suffered by African-Americans in the

Deep South
during the time prior to the Civil Rights movement. Some even went so far as to make references that they would have expected such a decision from other states’ high courts, but seemed surprised and shocked that a court in the State of New York would not side with the gay and lesbian couples who brought the action.

In , a trial court had earlier overturned a voter approved ban on same sex unions. Previously, the legislature in the State of presented a proposed amendment to the voters that was worded to ban gay marriages and also defined marriage as a union between a man and a woman. After the amendment was approved, a lawsuit claiming that the ban was unconstitutional was filed. The lawsuit claimed that the amendment referred to two separate issues – the Georgia State Constitution allows amendments to deal with only one issue. However, the Georgia Supreme Court found that the amendment dealt with only one issue and as a result was constitutional. By their ruling, the ban on gay marriages was upheld.

At this point, in

New York
, the only avenue remaining for allowing same sex marriages is for the legislature to pass a law that changes the definition of a marriage and removes the requirement that a marriage be a union between a man and a woman.

In , for the ban on same sex marriages to be lifted it will require that the Georgia Constitution be amended to lift the ban that the highest court in

has upheld.

While there are some remaining alternatives for supporters of same sex marriage in both states, it will be a difficult path in either state. In

New York
, a traditionally liberal state, the challenge will be to overturn a law that has been in place for near a century. Given New York’s liberal history and the fact that the New York Court of Appeals (in New York, the state’s highest court is called the Court of Appeals while the trial courts are referred to as Supreme Court) refused to overturn the law, the likelihood is low that the law will be quickly changed, if at all. Despite this, supporters of same sex marriages have vowed to lead a charge on the statehouse to bring about a change.

In , it will take another constitutional amendment to lift the existing ban. As the population of just approved a ban, the chances are slim that the population would be willing to vote in favor of lifting a ban they had just put in place.

In addition to New York and , the Supreme Courts of several other states including California, New Jersey and

Washington

State

are set to rule on similar cases. Advocates on each side of this issue are closely watching these cases. As well, other states are considering laws or constitutional amendments defining marriage as a union between a man and a woman.

Presently, only the Supreme Court of Massachusetts has upheld a law allowing same sex marriages. Many would ask why not travel to Massachusetts and go through a marriage then simply return to your home state and live as a married couple. While all states have laws that provide what is called “full faith and credit” or, in other words, one state gives full faith and credit to the laws of another state, if the home state of the couple has a law that recognizes a marriage as a union only as that between a man and a woman, then even if a couple was married in another state such as main in a valid ceremony, then the marriage would not be recognized in their home state.

This will continue to be a hotly debated issue between supporters of same sex marriages and those who are against it. However, the action by these two state courts emphasizes the point that the federal government should not be involved in this matter. The states should be sovereign in the ability to deal with this issue. The states have shown that they are, and have been, able to deal with this issue for more than a century. The states are able to deal with it via legislation, state constitutional amendment and through their court systems. The states can reach their own conclusion as has been shown by Massachusetts, New York and . Other states will do the same and should be able to do so.

Regardless of the actions of the individual states, there will be supporters and critics of their actions. Not all with be in agreement with what is done; however, this is part of the democratic process and if the outcome is not one that is to an individual or group’s liking, rhetoric will do little to help, the matter should be taken u via the legislative process. However, it should be understood that in a democratic society, the majority rules and just because the minority doesn’t agree with a decision doesn’t make it wrong.