Guest Opinion: Same-Sex Marriage as Law of the Land Legally Right and Fair

Gay pride parade. Photo by Guillaume Paumier.

The views expressed below do not necessarily reflect the views of the New Revere Daily Press or its staff. NRDP is committed to presenting a variety of opinions on issues related to liberty. The view held by NRDP on marriage equality is that government agencies should not be involved in marriage at all, including at the state and local level.

By Mark Rabinowitz

The U.S. Supreme Court will rule this month on the constitutionality of gay-marriage bans by individual states. Its decision will have game-changing implications for gay couples and individuals in Central Florida and the nation.

In April, the court heard arguments on two questions: whether states are required to issue marriage licenses to same-sex couples; and whether states must recognize gay marriages that were entered legally in other states. While heterosexual couples’ right to marry is universally recognized, only 11 states and Washington, DC have recognized through legislation that homosexual couples can marry. In the remaining jurisdictions where gay marriage is legal – 25 states – it is so because of a court decision.

At the heart of the arguments on the legality of gay marriage is the venerable institution itself. Has it really remained “unchanged” for a millennium, as Justice Anthony Kennedy asserted, or is the institution of marriage one evolving in nature, which has changed over time?

The answer – as the arguments at the Supreme Court attest – depends on whom you ask. Proponents of gay marriage pointed out that in 1967, just 48 years ago, the Supreme Court struck down laws prohibiting interracial marriage. Such a ban would be deplorable by today’s standards. States defending the practice raised some of the same arguments used by gay-marriage opponents today. Gay couples, like those of different races, have a fundamental right to partake of both the obligations and privileges that come with marriage.

Some of the Supreme Court justices appeared concerned that a decision of this magnitude should not be made by the court, that it should be left to the people. But why should this fundamental individual right be left to the whims of the people? Advocates of the bans claim that they are needed to protect children and promote procreation. There are no scientific data supporting this position, and it makes no sense. If procreation were the sole reason for entering into marriage, then anyone who cannot bear children– such as due to age or genetics – would be precluded from marrying.

This justification simply fails to stand any scrutiny and there would be mutiny if the state tried to enforce it. Likewise, empirical data show that children raised by same-sex couples are no better or worse off than children raised by heterosexual couples.

The Supreme Court’s decision will forever change the landscape. If the court decides that the bans are unconstitutional, then gay marriage would be legal nationwide. On the other hand, if it rules the bans are permissible, gay marriage would be revoked in states like Florida, which don’t have legislatures that support it.

But it can get more complicated. The court could also rule that the bans are permissible, but that states must recognize gay marriages from states where they are legal. If so, the validity of the marriage would depend on where it was performed. For instance, even though gay marriages performed in Florida would be presumably considered invalid, the Sunshine State would have to recognize gay marriages from New York, where these unions are backed by legislation. You would then have couples living in Florida whose marriages would be treated differently. This disparity of equal, similarly situated individuals would affect fundamental issues such as real-property ownership, custody of children, adoptions, estate planning, and labor and employment law.

The court should recognize marriage as a fundamental right, regardless of sexual orientation. This is not just the legally correct outcome, but the fair outcome. Allowing gay couples the right to marry will bring consistency within the law. It will eradicate a history of discrimination and afford protections guaranteed by marriage to gay couples. It will promote equality and dignity for children adopted or conceived through surrogacy to gay married couples.

Most important, it will strengthen the institution of marriage by affording these families the protections afforded to all married couples. Our country was founded upon the theory of equality for all of its citizens, regardless of race, religion or sexual orientation. Granting same-sex couples the fundamental right to marry promotes this founding precept.

Mark Rabinowitz (mark.rabinowitz@gmlaw.com) is an attorney with Greenspoon Marder Law.

Gay pride parade. Photo by Guillaume Paumier.

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