The Controversy of Same-Sex Marriage in the United States

 The Controversy of Same-Sex Marriage in the United States

In an authentic sense, it is sensible to argue that the government should have no say at all in the processes of the legal joining of two people or decide who a fully grown person can or can not lawfully marry.  State and federal governments play a part, of course, in that marriage is a civil union, and provides assistance and legal protections for the couple.  Marriage helps the interests of the society by promoting balance and future generations of citizens, and governments usually act in ways to advocate this very vital element. At the same time, it is highly controversial whether this governmental authority should have any opinion in who chooses to marry, offered those affected are adults and wish to do so.   This is in fact, at the heart of the same-sex marriage controversy still gripping the United States.  Gay men and women, yearning to gain the legal benefits and cultural acknowledgment of legal marriage, demand it as a right, while others argue, marriage itself is defined as a union between only a man and a woman.  

 Meanwhile, states today vary and alter individual state laws, as further debate rages over whether legally allowing a same-sex union is a federal or state privilege.  
As the following will analyze and support, same-sex marriage should be at best only a state interest, and the federal government should have no part beyond maintaining states’ rights in the situation.  Doing this is essential because federal regulation over the right to marry should be at a minimum, given the right to marry is not determined by gender within the Constitution or any other foundational law.  Furthermore, as states successively legalize same-sex marriage, a process occurs that is purely democratic in principle; the people are changing the nation by degrees.  Other factors relate to this issue, but the primary point is still valid.  The federal government does not have the right to deny same-sex marriage, it should not ever have much a right, and states have the power to decide both protects the legal elements of marriage for all and supports the democratic nature of the nation itself.  
As noted, the technical legal question to be discussed is whether the federal government or separate states have the right to allow or forbid same-sex marriage.  To insist that this particular problem is increasing a public concern is to downplay the issue.  It may be ironic but, as the controversy has grown in recent years, there seems to be more demand from the society that the matter is settled once and for all, and for that eyes turn to federal authority.  This came to a head in the presidential campaigns of 2013, as same-sex marriage became a “hot button” issue actually defining voter sympathies as either liberal or conservative (Levendusky 42).  In plain terms, the Mitt Romney campaign directly appealed to stable populations opposed to, or perceived as opposed to, gay marriage; the Obama reelection efforts not unexpectedly countered this with an appeal to more liberal factions, which typically favor same-sex unions.  The differences in approach aside, the apparent fact remains that the nation was emphatically looking to its highest leadership to make a decision, which in turn would lead to federal recognition or denial of same-sex marriage.  
This situation was some time in coming, as events in recent years amplified the role of the federal government in the matter.  Perhaps the most striking example of how that role has been carried out is the Defense of Marriage Act (DOMA) legislation of 1996.  In 1993 the Hawaii Supreme Court ruled that it saw no constitutional basis for denying same-sex marriage; this created huge shock waves both in Hawaii and through the United States, and the federal response was the creation of DOMA.  The Constitution’s Full Faith and Credit Clause affirms that states are compelled to honor one another’s marriage licenses, as when age differences exist in different states.  DOMA, very much a Republican administration reaction, reversed this and no state was required to honor legal marriage between same-sex couples granted by another state.  Moreover, the Act made it clear that only heterosexual couples could enjoy federal benefits such as social security income, veterans’ pensions, and immigration status (Hansen 118).  In no uncertain terms, DOMA was a federal response insisting that marriage is heterosexual.  Equally importantly, it was one limiting the rights of states and consequently amplifying federal power itself.  Supporters of DOMA- and the federal government itself- held that the Act went to validating states’ rights, in that they had the autonomy to reject policies of other states.  The reasoning, however, was suspect, as DOMA attached authority to federal powers by asserting social policy, and by weakening the collaborative nature of state interaction (Schram 174).  The message was clear; the federal government did not support same-sex marriage.  
This was then when a national stand was taken and one, which would prove problematic in the coming years.  Initially, DOMA received widespread national support, but as more states began objecting to it and asserted their rights to legalize marriage as they saw fit, the constitutionality of the Act was severe- and correctly- challenged.  By 1999 the Vermont courts ruled that denying rights conferred by marriage to same-sex couples was a violation of the state’s common-benefits clause.  By 2000 Vermont, Connecticut, Massachusetts, Iowa, New Hampshire, and Washington, D.C. allowed legal same-sex marriage, and further complicating the issue were those states such as New York and Maryland, which recognized such out-of-state marriages as legal, but would not perform them themselves.  New Jersey, meanwhile, made great efforts to structure a civil union pact which would mirror as closely as possible marriage rights for gay couples (Hansen 119).  All of this indicates the critical point that the society was changing, and that views about the “rightness” of gay marriage were evolving.  Perceptions were shifting, even as conservative extremists demanded that marriage remain legally valid only between a man and a woman (Meezan, Rauch 103). 
Returning to the 2013 presidential campaign sees the importance of this shift.  Mitt Romney's stance as opposing same-sex marriage was expected and consistent.  More surprising was President Obama's suddenly taking a contrary stand.  Obama had previously waffled concerning the issues but, as the race became heated, he declared that he supported gay rights and gay marriage.  Conservatives viewed this as strictly a political maneuver; with Romney's immense support from conservatives, Obama needed to strengthen his liberal backing.  Others, however, affirm that the President was acting on principle alone, as he also made efforts to establish DOMA as unconstitutional.  It was noted that Obama had had direct and positive experience with same-sex couples and parents and that this had expanded his viewpoint.  At the same time, it was reported how Romney's “consistent” opposition to gay rights did not exist when, running for the Senate in 1994, he backed them (Levendusky 43).  Both candidates were then subject to criticism of pandering for votes, but the more important reality is that gay marriage was very much viewed as a federal issue.  The people were turning to candidates at least partly because they expected the new president to set law and policy in the matter and for the entire nation.  It is even more interesting that this emphasis on federal decision-making was in play even as the major national effort directed at the issue, DOMA, had been a policy disaster from the start.  
In plain terms, the argument that the federal government is or should be empowered to rule on same-sex marriage goes to an underlying and dominant social ideology.  The law is meant to be distanced from religious and cultural influences, but the reality is that these forces make up the society itself, and the nation elects its leaders based on beliefs that they will uphold the same values.  This is crucial to understand, as it supports just how emotionally and ideologically based the demand for the federal government to ban same-sex marriage is.  As multiple studies and surveys reveal, most opponents to gay marriage view homosexuality itself as an unnatural and immoral state.  These same opponents also tend to adhere to strong religious feelings, which go to their thinking that same-sex marriage is sinful and must weaken the nature of the culture's moral standing (Knox, Schacht 240).  It may, in fact, be argued that DOMA's enactment was due to intense conservative and religious pressure on conservative President Bush; the mainstream society was demanding that the federal government take steps, obviously at the highest level, to “protect” marriage (Rimmerman, Wilcox 219).
This then presents the argument in favor of a federal regulating of marriage, which translates to the prohibition of same-sex marriage, in unilateral terms.  Those seeking this authority wish to reinforce an ideology on a national level, which reflects how vital it is felt to be.  With the federal government deciding on marriage, no state would be empowered to defy the authority and marriage would exist legally as that core government declares it to be.  Should this be the case, there would be uniformity in legal terms, and the likelihood is that, as DOMA attempted, no gay couple could receive federal marriage benefits.  It is equally important to note, however, that a different ruling on the federal level would just as forcefully make a social issue to a legal one.  No matter the federal response, the mere fact of the federal government's being empowered to decide the question at all must equate to governmental power of the highest rank writing law primarily based on a social concern, and one of a very personal nature.
Interestingly, the argument that states should decide the issue for themselves appears to defy same-sex marriage rights as legal.  As noted, different states have enacted different laws in this regard.  Some fully allow legal gay marriage, some do not but are willing to recognize the legality when couples visit them, and some refuse outright to acknowledge any form of same-sex marriage.  Individual states themselves vary as well, as the controversy over California's Proposition 8 illustrates.  In 2008 this measure, which would have enabled legal same-sex marriage among its other provisions, was voted down, and the nation was stunned that the “liberal” state of California would do this.  More than half of younger voters, in fact, voted against it, and it is believed that powerful Mormon factions combined with homophobia defeated the bill.  What immediately occurred, however, was a backlash and great rise of gay protest, all of which also commanded national attention.  An immense variety of movements, rallies, and organizations supporting gay rights emerged, and it has been noted that the bill's failure acted as a “wake-up call” to California liberals and gays (Klarman 125). 
All of this then goes to an apparent complexity as inevitably arising when individual states determine the legality of same-sex marriage.  The situation today, as noted, is unstable, just as California's shifts within itself show how problematic the issue is for these states.  At the same time, the point arguing for those individual rights goes to the heart of the Constitution itself.  Legally, the federal government is not allowed to mandate to states beyond certain and necessary parameters.  The battle over authority here is hardly new, as the most impactful instance of states' rights as colliding with federal-led to the Civil War; the Southern states insisted on degrees of sovereignty in regard to slave-owning, while the federal government demanded that all states in the Union comply to federal jurisdiction in the matter (Beaumont 127).  Literal battle lines were drawn when, as in the marriage issue, states objected to the central government's imposition of ultimate authority.
History and complications aside, however, the reality exists that a firm support is in place for states to have this prerogative: the 10th Amendment.  This essentially affirms that individual states have all rights not granted to the federal government in the Constitution (Hoffman, Graham 443), and this is a powerful statement.  Technically, at least, every state has the power to legalize or prohibit same-sex marriage because the identity of what makes a marriage is not addressed in the Constitution, nor does that document in any way empower the federal government to dictate law here to the states.  This exists apart from any concerns regarding how the same-sex marriage debate itself reflects issues between church and state.  Should states retain the right to decide on marriage legality, it is very likely that continued shifts and complex problems will arise.  Nonetheless, the argument that states have this inherent right is written into law.
The argument that the federal government should be allowed to decide on same-sex marriage has one powerful appeal: it simplifies.  Once the decision is made and aside from the disputes in courts inevitably seeking to overturn it, and in either direction, there is at least uniformity within the nation, and this is obviously desirable.  Then, and no matter the general verdict, all citizens can know where they stand in this regard, anywhere they travel.  This is no small advantage in a nation torn apart by the divisive issue.  It must also be noted that no answer is likely to satisfy all parties.  As mentioned, the conflict between state and federal authority is ingrained in U.S. history, as it may even be said that this dispute is healthy for an evolving democracy.  Lastly, federal power here reinforces the familiar feeling that the federal government inherently speaks and acts for most citizens.  This is true, again, no matter how the government should decide to rule once so empowered.  
As to the argument for states' rights to choose, there are the noted issues of complications arising, as they have already so been evident.  Nonetheless, an actual decision here is centered on legality, and not on potential problems or strongly conflicting opinions on both the marriage and rights issues.  This is very much about the law, and about interpreting it as near to the spirit in which it was created as possible.  This being the case, it is virtually impossible to circumvent the 10th amendment as fully confirming the rights of each state to decide the legality of same-sex marriage, and consequently, deny that right to the federal government.  This element itself is not without problems; as history has shown, the Constitution itself, amended many times, is a document highly subject to change when new eras demand new interpretations of its exact meaning.  Consequently, the Amendment's granting of all rights to the state not allocated to federal powers relies on an acceptance of limits, or implied limits, of those powers.  More precisely, it may be argued that the Constitution's lack of addressing marriage identity does not equate to the federal government's not being empowered to solve it.  The Supreme Court, for example, may rule that this power is tacitly present in the Constitution.  However, and given the common and sensible concern over any investing of undue authority in the federal government, it very much seems that the 10th Amendment secures the states' rights to decide the same-sex marriage question for themselves.
From an ideological viewpoint, the federal government should not be empowered to rule on marriage for the same reason such a power would be at least partially valuable.  That is, a federal decision would impose upon the entire nation a clear legal position and, while this has advantages, it is ethically unsound given the nature of the subject.  Marriage of any kind is as personal a matter as may be imagined.  It goes to personal feelings of love and lifelong commitment, and it is blatantly unreasonable, if not irresponsible, for the federal government to decide on the validity of such dedication and feeling.  In the plainest of terms, every adult citizen has in the United States as much of a right to make mistakes as anyone else, given they do not violate existing laws.  American freedoms are in fact founded on this concept of the individual as entitled to pursue their own destiny.  As marriage is for many, heterosexual or gay, a natural part of personal destiny, it has no place in federal jurisdiction.  Connected to this is the equally crucial factor of the need to separate church and state.  Just as the government is obligated to protect and defend freedom of worship, so too it is responsible for never allowing faith-based viewpoints to dictate law.  In the case of same-sex marriage, and as has been clear throughout its diverse history thus far, such viewpoints are powerfully in play.  All these points combine to refute the federal power to regulate marriage.  
Then, what has so far occurred in the issue promotes state rights.  Interestingly, and as DOMA illustrates, it seems that greater federal impact on the gay marriage matter only translates to increased resistance by the states.  Indeed, same-sex couples legally married in one state have not been slow to demand recognition of others, no matter the legal bans there.  This has set in motion an ongoing tide of militant reaction, and it is one likely to continue.  There is and will probably continue to be a wave of litigation as same-sex couples sue for the legal marriage protections they have been granted (Mello 15).  What this, in fact, shows then is a healthy and natural Republican process and from a grassroots level.  In a democracy, it is ultimately the people who speak, and public action both for and against same-sex marriage underscore the trajectory vital to the nation.  That is, the people protest from their own locales and communities, and seek to effect change at these basic levels.  When the force is sufficient enough to affect state law, with again no regard to desired results, there is an organic “reshaping” of the nation.  For example, and regarding consequences, it is unlikely that, as more states legalize gay marriage, others will still be violently opposed.  A primary reason for DOMA's collapse, in fact, was the immediate and growing “reaction” of states when legally married gay couples came to them.  Simply, it was and is in the best interests of the state to recognize the marriages because it promotes solidarity between states, as well as the important commercial factor of not alienating those wishing to visit or stay (Strasser 28). 
If looked at from another way, Americans are still Americans, despite regional differences.  The intrinsic quality of any union of states is that cooperation naturally occurs because what helps the people of one state is likely to do the same for all.  This being the case, the states' rights to regulate marriage, if temporarily creating a volatile situation, must eventually settle into a uniformity all its own, and one far better realized this way than by a federal mandate.  
Lastly, there is the factor of the core ethics guiding the nation, and these cannot support a broad, uniform ruling that so significantly affects the personal lives of the people.  The law must be in place, and legal marriage is an important civic structure, but the personal nature of it – as well as the Constitution – demands that the law is as developed from popular feeling and vote as possible, and therefore states must support any legal rights in same-sex marriage legislation.
Same-sex marriage generates a wide variety of controversies.  It is the center of both legal and ideological debate, and it is commonly associated with issues ranging from extremist political views to outright sin.  It is likely no real consensus regarding it will ever be fully in place in the United States.  Nonetheless, as marriage in the nation is a legal institution, it may be examined in that regard alone.  What becomes apparent is conflict; as with DOMA, the federal government urged on by conservatives, seeks to uniformly pronounce on the issue, just as individual states have defied this authority from the start.  States as well express conflict, and both internal and external, and the state of gay marriage today is consistent and is only fluctuating.  When the real facts are noted, however, and subjective thinking is set aside, the reality remains that the 10th Amendment guarantees state the right to regulate marriage in their jurisdictions.  Moreover, as this process is allowed, it becomes virtually inevitable that same-sex marriage will eventually hold the same, legal status in all states, as this is the vital process of democracy itself in action.  Ultimately, the federal government does not have the right to regulate same-sex marriage, it should not ever seek to exercise or reach such a right, and states have the power to decide marriage both protects the legal elements of the subject for all and supports the democratic nature of the nation itself.

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