Gay marriage in the US

IntroductionCan the government prohibit gay marriage? That is the question at stake in this debate, and I would like to answer with a simple no. One thing is clear. According to present legal doctrine, Congress (federal power) does not have the constitutional authority to ban gay marriage. This much is clear in the Supreme Court’s decision in United States v. Lopez and United States v. Morrison. In both cases, the Court identified “family law (including marriage, divorce, and child custody)” as a “traditional state concern,” an area “where States historically have been sovereign.” [1]In both opinions, Chief Justice Rehnquist expressed the fear that if federal power is sustained, then “we are hard pressed to posit any activity by an individual that Congress is without power to regulate.” [2] Because marriage is a state concern, half the battle is already won: every single state would have to prohibit gay marriage to make gay marriage illegal in the US.Nonetheless, anyone involved in this debate understands that the Constitution is centrally involved. In Loving v. Virginia, when the United States Supreme Court invalidated a Virginia law that prohibited interracial marriages, it declared that "marriage is one of the 'basic civil rights of man,' fundamental to our very existence and survival." [3] The grounds for this case were Equal Protection, which figures prominently in arguments for gay marriage.Indeed, this argument, which is based entirely on the Constitution, says, if marriage is a legitimate state interest, then it must be extended to homosexuals. Otherwise, so the argument goes, it is discriminatory and unconstitutional. The reasoning provided, which is the same reasoning used in the Court's decision in Loving v. Virginia, is based on the 14th Amendment's Due Process Clause and Equal Protection Clause. Because sexual orientation is not a choice, homosexuality is comparable to race and gender, as forms of self-identity that are beyond choice, and therefore "due process" and "equal protection under the law" is constitutionally guaranteed. This is a very strong argument, and I accept it.Already in two cases, Romer v. Evans and Lawrence v. Texas, the Court has overturned state regulations that discriminated against gays, citing the Due Process Clause for its reasoning. Furthermore, in Zablocki v. Redhail, the Court invalidated a Wisconsin law that prohibited a marriage license to any resident who failed to fulfill court-ordered child support obligations. The Court observed that, because "the right to marry is of fundamental importance," and because the Wisconsin statute "interfered with decisions to enter into ... marital relationships" and, like bans on gay marriage, "absolutely prevented" the desired ritual, it was held to be unconstitutional on Equal Protection grounds. [4] This week (4 days ago, on 2/7/2012), the Court decided in Perry v. Brown that California's Proposition 8 (a law restricting marriage to opposite-sex couples) was unconstitutional. The reasoning was the same: Prop 8 violated Due Process and Equal Protection. This is a landmark case, and will probably reach the Supreme Court. In sum, because marriage provides more than a thousand legal benefits at a federal level, and even more at the state level, it is a legal disability to refuse same-sex couples these legal benefits. It is unconstitutional; by denying "equal protection under the law," prohibition is discrimination through and through. Should States Prohibit Gay Marriage? No.Regardless of whether gay marriage is constitutional or not, it can still be asked, should it be constitutional? In other words, is gay marriage a good thing, a neutral thing, or a bad thing? If it is good or neutral, it should be allowed; if it is bad, it should not.We can begin by establishing its neutrality. I invoke John Stuart Mill's "harm principle," which says that "the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others." [5] This is the basic principle that neutrality rests on. If allowing gay marriage does not cause measurable harm that outweighs the harm of prohibition, then it should be allowed.Harms of prohibition v. harms of gay marriageWith regard to gay marriage, the harms caused by prohibition are many. For one, prohibition restricts the liberty of two individuals of the same sex who seek the same legal status available to individuals of different sexes. Banning gay marriage would force a legal disability on many same-sex couples. And this harm may not be restricted to couples but may also involve broader social costs, to their children and communities. According to the 2000 Census, 20% of male-couple households and 33% of female-couple households are raising children. We know, using the most conservative numbers available, that at least 1,000,000 children are being raised by gay couples. [6] None of these children or families have the protection and benefits of marriage. What harms does gay marriage cause? Some people believe it is immoral, but this is not enough to claim it causes "harm" to others. In fact, there is no evidence (I know of) that same-sex marriage produces any tangible, direct harm to anyone either in the marriage or outside of it. Therefore, because of the "harm principle," there is no reason same-sex marriage should be prohibited.What are the benefits of gay marriage?In the space I have left, I hope to strengthen my argument by showing that gay marriage is not simply neutral, it is a good thing. I argue that gay marriage, contrary to the opinion of many, has huge benefits for both same-sex couples and society as a whole. What are these benefits?1) Marriage is the way a couple signals its commitment to friends, workers, and communities, and that commitment is then reinforced by social expectatons. Thus, it has clear social benefits.2) Married people make relatively fewer demands on state welfare services and on the healthcare system. As a result, the Congressional Budget Office estimated that nationwide same-sex marriage would save the federal government a billion dollars a year in healthcare and other costs. [7] Other studies have shown that legalizing gay marriage increases state revenue by millions as well. [8]3) There are currently 1,000,000 children being raised in same-sex households outside of marriage who would surely be better off if their parents could be married. Let me make it this clear: gay families are not an abstraction; their existence is not theoretical. Gay families are a reality, a part of the lived experience of this country. And whether gay marriage is allowed or not, children will continue to be raised by gay parents in this country. As such, would it be a good thing to deny children in same-sex households the protections and benefits of marriage? I think not. Legalizing gay marriage would have immediate legal benefits for children, as well as enhancing the stability of their family. 4) One concern often expressed by conservatives is that gay culture is characterized by a series of pathologies: too much promiscuity, too much drug use, too much alcohol abuse, too little personal responsibility. But doesn't this provide all the more reason to protect gay marriage? Think about it: gay life and culture in general could benefit from marriage. Marriage could have the sort of traditionalizing effect on gay culture and individuals that conservatives, especially traditionalist conservatives, desire. [1] United States v. Morrison, 529 U.S. at 613; United States v. Lopez, 514 U.S. at 56 [2] Lopez, 514 U.S. at 564; Morrison, 529 U.S. at 613[3] http://law2.umkc.edu...[4] http://openjurist.org...[5] http://en.wikipedia.org...[6] http://en.wikipedia.org...[7] http://www.cbo.gov...[8] http://economix.blogs.nytimes.com...;