An Argument Against the Same Sex Marriage in the United States

A same sex marriage is not a right. While the proponents of same sex marriages usually site Section I of the Fourteenth Amendment of the Constitution (US Constitution, 1868), there isn't a clear description of the fundamental liberty so this amendment does not apply. The due process clause of the Fourteenth Amendment applies strict-scrutiny only to fundamental rights, so it must be decided what right is at issue and it must be specific. In the case of same-sex marriage, the right that is being questioned is specifically the right to same-sex marriage, not marriage in general.

To define the same sex marriage issue as "the right to marriage" would be too general, and is not a strict-scrutiny or specific analysis of the correct fundamental right.

After reading several Supreme Court cases (Supreme Court Collection, 2004) it is understood that this is the second piece of the puzzle that must be clear before rendering a decision. What is the specific right, is it a fundamental right, and does the Fourteenth Amendment apply? Therefore it is noted that the same sex marriage proponents have not satisfied this second requirement and to present the narrowly defined right of same-sex marriage to the Supreme Court would require a different argument than the due process clause of the Fourteenth Amendment.

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As for the first requirement in a Supreme Court decision, the Supreme Court has upheld in many cases that "emphasiz[ing] the importance of examining our nation's history and tradition in determining fundamental rights." (Washington v Glucksberg, January 8, 1997).

Not only does marriage have a long history and tradition, it has always had importance in our nation's history. Where would John F. Kennedy have been without Jackie? How about Ronald Reagan without Nancy? Bill Clinton may not have become President without Hillary. I have spoken with some people that voted for him solely because of his wife.

How many same-sex partnerships have created tradition for our country? Until recently, when taken in the context of our country's time line, homosexual behavior was a problem not a lifestyle. Homosexuals were not open about their preferences or behavior for whatever reason. These two items alone bear out the fact that same sex partnerships do not have history or tradition in our country. Why else would most states still have laws that require marriage be a man and a woman union? The argument against this could be that until recently we did not realize that being gay wasn't a choice, problem, or disease but a lifestyle.

Another argument could also be made that if tradition were so important we'd still have slaves. To this I take offense. Slavery was never a tradition. Our forefathers did not bring slaves over when they were seeking a better place for themselves, but marriage came along. Our entire country was never a slave nation but men and women all over were and are still getting married. Only a few people had slaves and they were the minority, most men and women think of being married. To deny tradition, the Supreme Court would have to drastically change the way they rule on issues and it would be a wide departure from where they are now. This leaves the same-sex advocates being unable to satisfy both pieces required for the Fourteenth Amendment argument to support their case.

Marriage, as an opposite sex institution, has always been with us and will continue to be. Is there any other tradition that has tested, reviled (remember the free love movement), and attacked more than marriage? Are there any traditions that are more talked about then marriage? When was the last time you sat and talked with someone and sooner or later they (or you) started talking of a wedding? Did it have a man and a woman or two people of the same sex? All of mine are opposite sex and I hope they remain that way.