Legalizing Same Sex Marriage in the US: A Discussion

The United States of America was created on one main idea, to create a new form of government where everyone’s needs were met as efficiently as possible. As the country grew in size, the founding fathers realized that we were not really a nation but individual states with vague ties to Washington DC. It was because of this that they decided to create the Constitution, the framework for a nation run around the concept of federalism. Federalism is a system of government where a territory/area is controlled by two levels of government; in America the two levels would be state and federal/national.

The constitution grants the federal government to make decision over national matters, while the state decides over local or domestic matters.

According to USHistory.org, our founding fathers were reacting to both the British government and the Articles of Confederation. The British Government was run as a unitary system where all power came from one central location.

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This central government controlled all local and national affairs. On the other hand, the Articles of Confederation represented a Confederation where there are strong state governments and a weak central government; in a confederation the states granted and controlled what the national government could or could not do. Federalism was a concept used to diminish the weaknesses in the two forms of government. It created a balance between state and national power. It was an ideal concept for a country that was growing at a rapid rate.

However, even though there was a sense of balance between state and national power there are struggles in federations between the two levels of powers.

This can be seen greatly in the clash that led to the Civil War. Be that as it may, it can also be seen in recent matters such as the controversy of same-sex marriage.

The country has definitely changed views in the past couple years when it comes to the topic of homosexuality. With information from NORC.org, it is stated that same-sex marriage approval went from 11 percent in 1988 to 46 percent in the late 2000’s. The change toward the acceptance of homosexuality began roughly around the late 1980’s after remaining fairly the same for many years. In 1987, 75 percent of people thought that homosexuality was wrong. By the 2000’s that number dropped to 54 percent and by 2010 it decreased to 43.5 percent. As the acceptance of homosexuality grew some states started to follow the movement by legalizing same-sex marriage.

However, there were many states that would not accept same- sex marriage in their borders and since it wouldn’t become a federal law until 2015, they could do as they pleased. Same-sex marriage is a topic that has caused friction between the federal and state government; as many states differ in beliefs, traditions, and values, certain states have been and continue to be resistant to the topic of same-sex marriage.

Based on a timeline provided by Freedomtomarry.org, one of the first major same-sex marriage cases was the Baker v Nelson case in 1972. A Minnesota couple, James McConnell and Richard Baker, were denied the right to a marriage license by the Hennepin County Clerk, Gerald Nelson. They were denied the right to marry because the law defined marriage as between a man and a women. A judge also denied their request for marriage so the couple went to the state Supreme Court where they were again denied the right to marry. This was one of the first cases that sparked the fight for marriage equality. As more same-sex couples began to try to get married a political fight began and states started to fight back by placing same-sex marriage bans.

On January 1, 1973, Maryland passed a ban on gay marriage followed by Virginia in 1975 and California, New Hampshire, and Florida in 1977. As more states are challenged by same-sex couples, more states begin to restrict marriage between a man and a woman.

In September of 1975, a Colorado county clerk gives marriage licenses out to six same- sex couples stating that there was nothing in Colorado state law that kept her from doing so. However, after some altercations Colorado state law determined that marriage was between aman and a woman.

In 1991, three gay couples in Hawaii challenged the laws limiting marriage to a man and woman by trying to prove that they were unconstitutional. The state supreme court unexpectedly ruled that not letting same-sex couples take part in marriage was unconstitutional. The case was put up for a second trial, at which the government had a chance at explaining and justifying the rejection of same-sex marriage. In 1996, a judge ruled that same-sex couples did have the right to marry. However, marriage equality was still a radical concept, therefore in 1998, Hawaiian voters rejected marriage equality in a 69 percent to 31 percent vote (Klarman).

In September of 1996, President Clinton signs the Defense of Marriage Act into law that affected the states. This ordered the unfair treatment of same-sex couples by denying them over 1,138 protections and responsibilities that come with marriage on a federal level. Be that as it may, in September of 1999 California becomes the first state to create a domestic partnership salute which gives same-sex couples the right to some of the protections that can be received through marriage. A couple months after the creation of the domestic partnership, Vermont creates a “civil union” legal status that also grants some of the protections that can be received through marriage but not all.

Though the domestic partnership in California and new legal status in Vermont are big steps toward equality for the LGBT community, they are still not comparable to actually being married. Then in May of 2004, Massachusetts became the first state to legalize same-sex marriage. It is here that the question “Is a ban on same-sex marriage unconstitutional” begins to be looked at more seriously and states start to react by placing heavier restrictions on same-sex couples or by creating a “civil union” status in hopes that it will be enough to satisfy the LGBT community. Connecticut put a “civil union” status into effect but in 2008 they legalized same-sex marriage, followed by Iowa in early 2009 and Vermont in late 2009 after the state legislature votes to dismiss a veto from their governor. At this point in time there are now 4 states where same-sex marriage is legal but same-sex marriages were still discriminated against (freedomtomarry.org).

There were still 47 states in the country where gay citizens were fighting for their right to marriage. This was leading to political disputes in state and national government. According to a report by the Alliance for Justice Foundation, by 2012 there were under a dozen cases that had brought up the issue of the restrictions of same-sex to the federal level of government and all had been unsuccessful in fulfilling the demand for marriage equality. This changed due to the Obergefell v Hodges case taken to the supreme court. Supremecourt.gov states that this case consisted of 14 petitioners, all same sex couples from Michigan, Kentucky, Ohio, and Tenessee.

The petitioners filed lawsuits in their federal district courts stating that it was a violation of the 14th amendment to deny same-sex couples the right to marry. This case was then taken to the supreme court and on June 26, 2015 a mark in history was made as the supreme court ruled that same-sex marriage would be legal in all fifty states; it was now a federal law bounded by the constitution (supremecourt.gov).

The federal decision made by the supreme court caused some tension between the two levels of power. Many states feel that the legalization of same-sex marriage should be left to their jurisdiction. States with the most tension would be the southern states as they have a foundation on traditional, Christian values. This can be seen in current events in Kentucky by a woman named Kim Davis. She was a Kentucky county clerk who was arrested for failure to uphold the federal law and give marriage licenses to same-sex marriages due to her personal religious beliefs. She has become a symbol of many states’ rebellion against same-sex marriage due to factors like religion. George Takei stated on social media when he heard about Kim Davis’ situation: “Well this is a bit of a circus. So let us be clear: This woman is no hero to be celebrated.

She broke her oath to uphold the Constitution and defied a court order so she could deny government services to couples who are legally entitled to be married. She is entitled to hold her religious beliefs, but not to impose those beliefs on others. If she had denied marriage certificates to an interracial couple, would people cheer her? Would presidential candidates flock to her side? In our society, we obey civil laws, not religious ones. To suggest otherwise is, simply put, entirely un-American.” It is now a federal law for same-sex marriages to have the right to marry even though some states are not satisfied with the decision. The freedom to marry was a step toward human equality in America and has become a symbol for change and acceptance.