Since the activism largely generated in the late 1960s and 1970s, issues of gay rights have become increasingly dominant in the society, as they remain today subjects of controversy.
Greatly emphasizing this is the specific matter of legalized gay marriage. Despite this being in place on a federal level, and since 2015, there nonetheless exists a form of backlash today, as in the current Supreme Court case deciding on a baker’s rights to refuse making a cake for a gay wedding. Then, and very recently, the Trump administration has essentially endorsed the rights of merchants to display “anti-gay” signs in their businesses. An inestimable range of beliefs, values, and opinions then complicate, if not threaten, legal same-sex marriage. If the unions are indeed legal today, it is also true that vast social forces continue to seek to marginalize and discriminate against gay men and women, and overturn legal marriage. The following then examines the judicial and social forces in play, and the relationship between them. This leads to the conclusion that, ultimately, constitutional rights alone must be recognized as both supporting legal gay marriage, and combating any injustices to a specific population within the nation.
To understand why gay rights and gay marriage are validated by ethical and social obligations, it is necessary to recognize realities of the issues as reflecting how judicial and social responses interact. The trajectory of gay rights regarding legal marriage is, in fact, striking, in terms of contrast. Newsweek is a credible and respected source of information, and usually objective in its reporting. This is emphasized in its 2015 coverage of the Supreme Court ruling legalizing same-sex marriage on a federal level. Most impactful here is that, as recently as 1996, President Clinton had signed the Defense of Marriage Act (DOMA), which prohibited any federal recognition of gay marriage as legally sanctioned. The Supreme Court overturned DOMA less than two decades later, holding that the Act was unconstitutional in its disregard of fundamental gay rights (Gorman). The Court’s ruling was as well close, with four judges dissenting. The natures of the dissent, however, have been assessed as essentially flawed in reasoning and ethical concerns. The Supreme Court Review analyzed the oppositional opinions of the relevant Justices in 2016, and assesses them in ways both rational and in historical context. For example, the views of dissenting Justice Alito center on perceptions of social conscience, and indicate how Alito is reluctant to oppose the will of those morally offended by legal gay marriage. His primary objection is that legalization “ignores the rights of conscience” of opponents (Seidman, 2016, p. 121), which viewpoint itself ignores constitutional protections of gay rights as citizens’ rights. Then, and as with Newsweek, The Atlantic is generally regarded as an outlet of integrity and credibility, and this source addresses the issue in a way promoting the imperative of the judiciary as upholding gay marriage rights. Perhaps most compelling is its point underscoring how the law and society evolve; in 1967, for example, the Supreme Court ruled that bans prohibiting interracial marriage were unconstitutional (Ball, 2015). This is critical, in that the Court was compelled to recognize, not biased public feeling, but constitutional law as applying to all citizens.
Two perspectives strongly affirm that legal gay marriage and gays rights must be supported by both the law and the society, and the first of these is the inescapable reality that the Constitution in no way discriminates based on sexual orientation. Rather, it affirms how liberties exist for all law-abiding citizens, and one such liberty is the right for consenting adults to marry. Then, and as noted, society invariably evolves. As viewpoints change in the public, so too does the law change to accommodate the new perspectives, which also reinforces the inextricable connection between the courts, legislature, and society.
Refutation and Concession
The above notwithstanding, many adamantly believe that same-sex marriage as legal encourages a “slippery slope”; in so extending the traditional definition of marriage, the legalization allows for an expansion in other, undesirable forms. The Population and Development Review, a peer-reviewed journal widely regarded as factual and credible, reflects this in one study of 2011. It also notes a significant factor in objections more ideological, and pertaining to bias against homosexuals in general: “The state is giving an official stamp of approval to homosexuality, which many, especially those with traditional religious beliefs, consider deeply immoral behavior” (Chamie, Mirkin, 2011, p. 540). While all are entitled to maintain religious belief, all are as well obligated to comply with the law and, irrefutably, constitutional law fully validates the rights of gay men and women to marry.
Varying opinions aside, there is a fundamental reality demanding recognition regarding legal gay marriage and gay rights. Essentially, the same people who object to gay marriage enjoy the right to worship as they wish, and express viewpoints they uphold. As the Constitution demands these rights, so too does it support the rights of gays to marry, and be protected against overt abuses. Ultimately, constitutional rights must be understood as both supporting legal gay marriage, and opposing any injustices to a specific population within the nation.
- Ball, M. (1 July 2015). “How Gay Marriage Became a Constitutional Right.” The Atlantic.
Retrieved from https://www.theatlantic.com/politics/archive/2015/07/gay-marriage-supreme-court-politics-activism/397052/
- Chamie, J., & Mirkin, B. (2011). Same‐Sex Marriage: A New Social Phenomenon. Population
and Development Review, 37(3), 529-551.
- Gorman, M. (26 June 2015). “Gay Marriage Is Legal in All Fifty States: Supreme Court.”
Newsweek. Retrieved from http://www.newsweek.com/supreme-court-gay-marriage-legal-all-50-states-347204
- Seidman, L. M. (2016). The Triumph of Gay Marriage and the Failure of Constitutional
Law. The Supreme Court Review, 2015(1), 115-146.