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The Same Sex Marriage Decision

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The absolute denunciation of the same sex sexual relationships traces its roots back at a time in antiquity. The condemnation arose from the classic "if everybody does it" maxim, at a time when the continued existence of a tribe or community depended on reproduction between men and women. If "all persons" were gay, society was ruined. This made sense to develop stringent taboos against the behavior. While the taboo still strongly exists, it is the principal reason for it existence disappeared. There is no danger of thinning population; pretty the contrary. The obliteration of legal approvals and the Gay Rights movements have enhanced the visibility of gays in society. Americans now discover that they have gay friends, classmates, co-workers, and neighbors; furthermore, they have discovered that gays are human. In the absence of any concrete factors that justify the withholding of equal rights under the law for gay citizens, various courts in the US have made clear a hierarchy of values. Over the recent history, several states have acted to alter or clarify their laws to tackle same sex marriage. Several state courts or legislatures have explicitly permitted same sex marriage. In others, legislatures or voters have acted to outlaw same sex marriage.

In 2000, the Vermont legislature passed a bill that gave the right to join in a civil union to same sex partners. While not called “marriage,” the civil-union law is in all respects under Vermont law, marriage. In 2003, the Massachusetts Supreme Judicial Court, in the case of Goodridge et al. v. Department of Public Health, ruled that the state's Constitution barred the restriction of marriage to heterosexual partners. The Court ruled that opposite-sex and same sex partners have equal civil marriage rights under the constitution of the state. The ruling was hailed by various liberals but was condemned by the conservatives, particularly religious ones, who commenced work on an amendment to the U.S. Constitution that sought to define marriage as involving “one woman and one man" (“Gay Rights and Gay Marriage”).

In California, laws allowing gay marriages were passed in 2008 after the California Supreme Court ruled that the statutes limiting marriage by same sex couples were in violation of California constitution. However, the California electorate voted for Proposition 8. This is a voters’ initiative that recalled the ban on gay marriage as part of the constitution (GE Capital). The marriages that were performed during the period gay marriages were legal are still recognized and legal. The Connecticut Supreme Court, in 2008, ruled that the Connecticut civil union statute that gave gay unions the same rights and responsibilities as conventional opposite-sex marriages at the same time differentiating between marriage and civil union is in violation of equality and liberty requirements constitution of the state. The state began to issue marriage licenses to same-sex couples the same year.

These developments have set off a "culture wars" battle that is likely to rage on through the years. These rulings by the courts in most cases have been vilified and praised with the same zest. This is one of the hard situations in which ethics (systems of differentiating right from wrong), morality (sets of values and principles decreeing what is right and wrong) and law (legislation directives decreeing what a country or a society will and or will not permit) are all pulling in dissimilar directions, and the courts have to iron out the differences. Ethics occupies itself with defining the parameters of human behavior in relation to justice. In this sense, it seeks to define human behavior in relation to fairness. Morals, on the contrary, attempt to define human behavior in relation to decency. This, in effect, is to say that if a certain form of behavior can be seen as fair or unfair, then it is a subject of ethical judgment. On the other hand, if a certain behavior can be termed as decent or indecent, it is then the subject matter of moral judgment.

Morality and ethics pull in different directions since ethics emphasizes on defining human behavior in terms of to fairness, morality on its part disregards fairness. If the majority finds it indecent, then it is immoral. Hence the moral take on homosexuality is unethical in that it lacks fairness and the ethical take on the same issue is immoral on the grounds that the majority of people find it indecent.

At this point, the courts are called upon to resolve the differences. The Supreme Court of the United States is clear that the U. S. Constitution gives gays no special rights or preferences. The rationale is that the orientation of homosexual, as opposed to sex or race, is a hidden trait i.e. cannot be observed except if the person reveals that trait. Thus, persons who are affected by legislation pertaining to sexual orientation are affected not due to their orientation but somewhat by their ways, which identifies them as bisexual, heterosexual or homosexual. The right to marry is a primary right. However, under the United States Constitution, one is not assured of the right to choose whom to marry. States are at liberty to define marriage as it has traditionally been, as the union between a man and a woman.

The law, in contrast to morality, is made by and for people. Therefore, in contrast to morality, it must have aims. These aims are the aims of its architects, who may either be an individual or a group. Law, by its nature, must have some unique moral aims among its aims. If law lacks aims, then it is not law. It ought to aim to be just, or endeavor to serve the universal good, or aim to validate coercion, or aim to be, in some way, morally binding. For obviously, a society's laws have to strengthen and articulate public morality.

 It is without a doubt that majority of Americans regard homosexuality as immoral. Therefore, a law on homosexuality should, reflect a moral claim. The moral systems of most Americans declare gay relations wrong in absolute terms; thus, gay relationships should not be permitted by any legislation. On the surface, the rulings allowing same sex marriages seem like a denial of morality as a rational foundation for legislation. The law should also, in addition to being just, ensure fairness; thus, it should aim to be ethical. This brings the law on its first challenge in ruling on whether to allow or not to allow same sex marriage. The challenge here is that same sex couples want the equal rights to heterosexual couples. By common reciprocity principles, this is understandable. In their position, we would fancy the same thing. Thus, there lies the dilemma of the law.  

On one hand, judicial rulings in favor of the same sex marriages are a contravention of the sovereignty of the majority. In a republican government, the elected representatives set social policy for the country (Raul). This they do by legislating America's moral choices in law. On the other hand, if judicial rulings do not legalize same sex marriage, then homosexuals are denied equality from the laws. Legalizing gay marriage is recognition of fundamental American principles. It would signify the commitment to equal rights (GE Capital).

The real conflict of here comes from the court’s rejection of the law’s embrace of a majority public morality. It is seen as a disregard for the maxim that laws are based on morality. However, this is not entirely correct. The courts are not denying that fact. What they are pointing to is the fact that morality must sometimes give in to the over-arching ethical doctrines that form the basis of American democracy. Those doctrines are inclusive of the right of citizens to benefit equally from the laws, to be treated equally with other citizens, and to share equally in the advantages of being American. Irrefutably, marriage is one of those advantages. The Massachusetts Court persuasively makes that case. Same sex couples are citizens and therefore, do have all the rights of citizens. Americans should be able to agree to a set of principles and values and at the same time be at liberty to take on whatever moral system they prefer. Moral preference should not be articulated in law and public policy if it contravenes core principles it is supposed to establish. This also applied on how the judiciary treats the other core rights. We might find movies, books, or lyrics of a song immoral, but the principles of free speech stop us from outlawing them. A gathering of the American Nazis might be found to be immoral, but it is their constitutional right to assemble.

In conclusion, the right approach that should be adopted in dealing with the conflict between ethics, morality and the law is that in instances where moral judgments are not agreed on (and the act being judged does not really affect those judging it as immoral, for example homosexuality), equality should be considered. This is so because if the law conforms to morality, it might be unethical, and in some instances, unethical law can be moral. Morality, being subjective, should not come at the expense of ethics unless we are all in agreement which is not possible. A constitutional amendment is the right remedy for those who choose to practice same sex marriages. Moral absolutes opposing same sex unions should not triumph over the wide and universal rights expressed in the state and federal constitutions.

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