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The question regarding the legalization of same-sex marriages relates to the fundamental change of law not just nationally, but also internationally. In the existing provisions of international law, the definition of marriage has been given as the union of two individuals of the opposite sex. In the Universal Declaration of Human Rights under article 16, it is provided that: “men and women…have the right to marry and to found a family”.

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Similarly, under article 23 of the ICCPR, the Treaty requires recognition of the right of men and women to marry and start a family. The terms of Article 12 of the European Convention are almost identical. These treaty provisions simply highlight the state of the law internationally and as have been domesticated nationally. However, the continued recognition of gays and lesbians, calls for a review in the law in order to recognize the fundamental rights that they are entitled to as humans beings. Therefore, it is time for the Government to allow gay marriages which is a civil and human right that is denied to the LGBT (Lesbian, Gay, Bisexual, and Transsexual) community.

In arguing for the legalization of same-sex marriage, over and above the human rights argument, this paper will analyze the historical idea of marriage; this will be followed up scrutiny of the legal opinions for validation of gay marriages which will involve a vigilant study of jurisdictive decisions as well statutory arguments.

Historical Concept of Marriage

The traditional architecture of marriage has been viewed on the postulation of a heterosexual couple at its soul, with the expectation of procreation. It is the primary expectation that a married couple will be able to procreate and this is only possible where the marriage is between different-sex couples. Over a century ago, the US law accepted that heterosexual marriage remained an institution headed by the husband. In Thompson V Thompson the Supreme Court classified heterosexual marriage as the exclusive venue for lawful and legitimate sexuality. Consequently, the traditional conception of marriage was that other the expectation of procreation, it was the only avenue in which couples could legitimately engage in sexual intercourse.

Engaging in sex outside the marriage, particularly for married couples was heavily punished as adultery. In the case of the United States, the Supreme Court enthused marriage as being the sure footing of all that is constant and honorable in the sophistication of humankind; it was the best indemnity of that respectful scruples which is the source of all altruistic progress in societal and political improvement.

Marriage has been defined in the American dictionary as an institution where a woman and a man unite for the sole purpose of starting a family. This meaning, along with the rulings of the Supreme Court are a reflection of cultural, historical as well as the religious conception of marriage as being confined to people of the opposite sex with the main aim being the procreation of children. In the conventional setup, marriage is the union of man and woman, designated the two as a solitary unit in the eyes of the law, with the man being allotted the leading role. The wife could not bring suit against the man, as this would be tantamount to suing herself. Marriage was meant to last a lifetime and, thus, divorce was not an option. The two, once married were expected to procreate and raise children for the marriage to be complete.

However, some of these elements started to change as the roles of women began to revolve in society. In the early 1900s, women got married at a very early age, mostly as soon as they reached puberty and from the ages of fifteen. The period of 1910 to 1920, marked a revolution in gender roles and sexual practices outside marriage. It became common for young women who were unmarried to seek employment instead of being married. Many young single women, therefore, entered the paid workforce, with their new form of independence they could play an important role in the creation of a new urban sexual culture.

The new urban sexual culture was characterized by the growing commercialization of pleasure, sexualized public spaces which included dance halls, together with the emerging sexual and social influences that resulted from the wave of immigrations that introduced new cultures in the US. These changes ultimately altered the traditional concept of marriage, whereby women got married at older ages and this was preceded and ultimately followed by cohabitation and then marriage, and finally, a divorce. The notion of cohabitation became more prevalent, thereby, rendering marriage not so special. Divorce rates increased over the years and today marriage has lost its importance and specialness due to numerous problems associated with it (LeVay 56-95).

At this point, the following question arises: what are the main elements that characterize marriage in the society of today? The socially divisive nature of same-sex marriages raises controversy which is expressed in the law, religion, and politics. It raises questions of family structure, gender roles, justice, and equality, which are inextricable from the institution of marriage. While there is no denying the universality of heterosexual marriages, current social and legal developments provide a compelling case for the recognition and legalization of same-sex marriages in the United States.

Legal Arguments for Legalization of Same-Sex Marriages

Legal arguments for the legalization of same-sex marriages are based on three main grounds; first, denying gay marriages is a violation of civil and human rights guaranteed by the constitution, second, it interferes with the legal distinction of church and state and, finally, the third argument is that it amounts to minority discrimination.

Denying same-sex marriages is a violation of civil and human rights guaranteed by the constitution. The courts have handled cases involving gay rights and the decisions have involved constitutional interpretation of the guarantees of equality of all in the eyes of the law. The provisions of the Bill of Rights of the US Constitution are, perhaps, the most powerful tool that can be used in the push for legalization of same-sex marriages. Marriage is a civil and fundamental right which must be universally available to each and every human being on the virtue of their human nature rather than their sexuality.

In the courts, when asked to consider the question on whether same-sex marriages should be allowed, the determination is usually premised on the due process clause, with the argument that same-sex marriages are not so intrinsically embedded in traditional society as to bring about the due process arguments. However, the constitutional arguments of equality in relation to gay marriages should relate to the freedom of a person to choose the partner with whom he or she wants to spend the rest of his life. The right to marry connotes the right to choose the person to marry; the sticking point is with the sex of the chosen partner.

The first case to consider gay marriages in the US was the case of Goodridge v Department of Public Health where the Supreme Court of Massachusetts decided that the restraint of marriage to opposite-sex couples was an infringement of the corresponding guarantees of equality of the state constitution on liberty. In this case, the court relied on the earlier cases relating to gay rights such as Lawrence v Texas, which had recognized the privacy rights of gay partners to engage in private sexual conduct without the interference of the law. These privacy protections were interpreted by the court leading to implicit due process of all before the law. The overriding principle is that the court recognized marriage as a civil and fundamental right that should be available to all.

Similarly, the Supreme court of California took the same approach in the case of wooing v Lockyer, where it held that the law restricting marriage to heterosexual couples was invalid under the state constitution. The conception of equality in the two cases is defined on the basis of denial of the same right to different individuals, such that, opposite-sex couples would be allowed to marry, while same-sex couples will be denied the same right (Kotulsk 95-125).

The equal protection clause has been the basis upon which many cases regarding recognition of same-sex marriages have been successful. The distinction between the success of cases brought on the equal protection clause and those brought on the due process clause highlights the fundamental differences between the two provisions of the American constitution. The due process clause is designed to look back and consider whether an existing and accepted practice with sufficient generality is being violated by the claimed practice. It is designed to protect the practices that are deemed to be rooted in the traditions of society.

On the other hand, the equal protection clause protects the new rights and is framed to look forwards to the future. While due process protects traditions, equal protection safeguards against such traditions. The equal protection clause of the constitution was to combat racism, however, the same has been applied to sentry against laws that adopt sex-based cataloging, as well as those that do not, but have the effect of dissimilar impact based on sex. In the case of Reed v Reed the court was of the opinion that for any regulation to survive a constitutional test, groupings by gender present in that law must be such that they serve critical state goals and must be significantly associated with the attainment of those purposes.

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Therefore, it follows that under the equal protection clause, the argument that marriage is a reserve of heterosexual couples only amounts to exclusion of other couples to access the universally recognized right to marry a person of choice. The recognition that all are equal before the law is firmly imprinted in acceptance that constitutional rights belong to every citizen of the country and sexual orientation is not a sufficient reason to introduce changes.

The second legal argument regarding the prohibition of same-sex marriages is that it interferes with the legal rights of separation of the church and the state. Among the most common arguments against gay marriages are that they will violate the moral principles of the society, as such, marriages are not recognized by any religion. The question of the separation between the law and morality has been an important point of discourse among the scholars, with those calling for separation arguing that religion is an abstract concept that is incapable of objective analysis and, as such, should be separated from the law.

The arguments for and against morality in law, represent one of the demarcations between the positivists and naturalists in the jurisprudence of law. The US constitution, under the first amendment, recognizes the importance of separating religion from the law, where it provides that the administration shall not make any laws as to the establishment of any religion. This only means that there is no state religion, and as such morality is subjective, hence, meaning that there is a perfect division between the law, religion, and morality.

Consequently, the American society is secular with separation of the church and the state, as well as the formulation of public policy and legislation is not dependent on the moral rightness of such policy, but rather on what is deemed to be in the public interest. The government is not required to protect and safeguard the sanctity of marriage, it’s not in the place of the government to define what is morally wrong or right when it concerns marriage and as such, the continued prohibition of same-sex marriages essentially amounts to the state trying to protect the “sanctity” of marriage. Separating the church from the state is important and does not interfere with the duties of the church in society.

Indeed, while the churches are the most recognized avenues for conducting marriages, the law does not bestow this duty primarily on these churches, and therefore, no church will be forced to marry same-sex couples or recognize same-sex couples in the context of their religious beliefs. Therefore, it is necessary for the state to draw a clear line between religious arguments against same-sex marriages and legal arguments.

Thirdly, denying same-sex marriages amounts to minority discrimination. The question of discrimination is closely linked to equal treatment of all before the law. Minority discrimination basically implies the rights of the minority are withheld and not recognized. Such minority rights are usually unique to the given society, distinctive from the practice of the majority of the population and, hence, are often ignored.

For instance, the law recognizes that marriage is the union of a man and a woman, this is the accepted order of things in relation to marriage, however, there is a minority group seeking to change such order, so that, man and man, as well as woman and woman, can marry. Failure of the law to recognize this claim then amounts to minority discrimination. Any public, government, or tax-payer support for illegal discrimination is prohibited by the US constitution (Corvino & Gallagher 67-102).

Reasons for Seeking Legalization of Same-Sex Marriages

Traditional marriages attract certain legal benefits that belong to the parties of these marriages. These benefits are among the reasons why gays and lesbians are seeking recognition of their unions by the law. In 1999, the Vermont Supreme Court in the case of Baker v State issued an order to the legislature, instructing it to come up with a method that would provide same-sex couples with the traditional marriage benefits and protections. The legislature responded to this order by formulating the Vermont Civil Law in 2000, which provides gay and lesbian couples with most of the advantages that are common in heterosexual marriages.

The benefits recognized in the Vermont Law provide a clear argument as to why same-sex couples want to be married under the law. The variety of rights ranges from the right to sue for the wrongful death of the spouse to the ability to inherit the property of the spouse. These are rights and protections as well as benefits that fall strictly to married couples, such as the right to claim alimony and child maintenance. Indeed, the rights that accrue from the marriage are important in as far as the union is to be beneficial to the spouses.

An example is in the Matter of Estate of Cooper, where, Cooper died and left a large chunk of his estate to his ex-lover. The current lover went to court seeking to inherit the property on the basis of a “surviving spouse” under the inheritance laws of New York. The court stated that only a person lawfully recognized as the wife or husband to the deceased would qualify as a “surviving spouse” and since individuals of the same sex had no constitutional rights to enter into a marriage with each other, there was no claim before the law.

The second reason why same-sex couples want legalization of their marriages is that marriage legitimizes relationships in society. Despite many problems associated with marriage these days, there is no other social concept that has such universal acceptance as marriage. It is one social function that attracts almost similar sentiments across every corner of the world. Its importance is still recognized and most of the arguments against recognizing the right of same-sex couples to marry are premised on the assumption that they will change the institution of marriage as it has been formulated traditionally, rather than just join the same institution.

Sexual minorities have no interest in altering the idea of marriage as found in traditions of the society, their interest in being allowed the right to choose the person that they want to spend their lives with, and the fact that they may select a person of the same sex, should be used to deprive them the right to undergo the marriage ceremony and live in the society enjoying equal with others rights.

Finally, another reason as to why same-sex couples want to marry is related to the fulfillment that comes with having a family and spending your life with someone you love. These are the same reasons that unite heterosexual couples: the need to protect the person you love, the desire to create a family of your own, and the ability to enjoy this life without having to hide from the law.

Advantages of Legalizing Same-Sex Marriages

Legalization of same-sex marriages might stipulate numerous benefits These advantages stem from different sources underlined by the freedom of these couples to conduct their affairs without fear of illegality. Generally, these advantages can be split into two categories: economic and social advantages.

Firstly, there will be a substantial boost in the economy of the country, hence, lessening the burden for the tax-payers. The legalization of same-sex marriages will allow for an increased number of marriages between same-sex couples resulting in an estimated $9.5 billion of yearly savings for the federal government. There will be increases in hotel bookings throughout the country as same-sex couples will want to travel around the country. Similarly, state and federal budgets will actually get a progressive increase if same-sex couples are allowed to marry. Any supplementary state and federal expenditure on assistance “would be outweighed by savings from lower cash assistance and Medicaid” (Sullivan 114-156).

Legal recognition of marriage is done through the issuance of licenses to newly married couples. These licenses are normally issued at a price used for the processing of such licenses. When allowing same-sex couples to marry the revenue from the issuance of such licenses due to the increase in the number of wedding ceremonies that will be conducted will be increased.

For example, during the first year when same-sex marriage was legally allowed in New York City, the city was able to accumulate over $270 million as a result of the license fees and wedding-related spending. Economic advantages arising from the legalization of same-sex marriages present a valid argument as well as a valid point of consideration for both the federal and state governments.

Secondly, social advantages that may result from the legalization of same-sex marriages are more controversial than the economic arguments. It is largely because social arguments rather rest on the idiosyncratic judgment of an individual. However, it is not to say that such advantages are non-existent. Firstly, legalizing same-sex marriages will promote social stability. The nature of marriage as an institution sets it out as a rather conservative issue that demands a firm commitment to civic and family responsibilities. It is this commitment that any state would want in order to promote social cohesion and understanding. This does not any way impinge on the beliefs and rights of those who do not accept same-sex unions. It is further facilitated by the necessity to separate the church from the state in order to exclude moral judgments from the analysis of this social importance.

The second social benefit of allowing same-sex marriages relates to the argument of the protection of children. This argument does not take into deliberation the fact that gay and lesbian families may also have children of all ages who are forced to live without the legal rights and benefits as the children in traditional marriages. The priority for any civic marriage ceremony should always be to provide a safe, secure, and stable environment for children. Preservation of the future generation of a country is an important objective for any government and where there is a possibility that marrying same-sex couples would facilitate such objective no other argument should be deemed sufficient to deny such right.

For a child being raised by a same-sex couple, the underlying concern is the fact that they live in a family that is not recognized by the law. This is an injustice in itself as far as the fundamental rights of these children are concerned. All children have the right to be raised in a family that is recognized by the law and enjoy the benefits of it.

Perhaps one of the most important social benefits that would result from legalizing same-sex marriages is the simplification of the procedure of adopting children for such couples. The statistics on the number of children waiting to be adopted throughout the country are shocking, to say the least. And this list keeps growing day by the day. Currently, over 100,000 children are waiting to have their own families. The problems of the existing system of adoption mean that there is a need for a change in the strategy. Statistics show that many children run away from foster care and end up in the streets, eventually, taking up a life of crime in order to survive. Hence, the provision of another avenue of adopting children is, indeed, to be considered. Allowing same-sex parents to adopt such children will do nothing but benefit the situation

The Way Forward

Indeed having considered all the reasons for the legalization of same-sex marriages it turns to be that positive resolution of the issue will bring much more benefit to the society. Courts have heard and determined cases brought on constitutional grounds regarding the rights of the LGBT community. It is undeniable that some of these rights have been accepted and prescribed by the courts, such as the right to privacy that was recognized in the case of Lawrence v Texas. Gay activists have continued to push their agendas in the courts asserting for acknowledgment of their right to marry.

However, it is obvious that it would be unnecessary to undertake a constitutional amendment to the Federal Constitution in order to recognize same-sex marriages as a right under the constitution. In 2003, the Federal Marriage Amendment (FMA) was introduced in the House of Representatives proposing to define marriage as the union of one woman and one man. The influence of the amendment would be to completely prohibit same-sex marriages throughout the country. It is an anticipatory solution in the sense it deems to prevent any state legislation that would define marriage otherwise. The current status is that no state in the country has recognized same-sex marriages and any such recognition should be left to the state to decide internally without the interference of the Federal government (Rauch 36-84).


In conclusion, legalizing same-sex marriages is a step towards acceptance and recognition that marriage is a universal right that belongs to each and every human being. Freedom of choice is one of the fundamental freedoms recognized by the constitution and this freedom shall not be curtailed by the prohibition of same-sex marriages. The decision whom to marry solely belongs to the individuals in question and the state cannot interfere in the exercise of such choice. Indeed, the duty of the state is to determine and safeguard the sanctity of marriage. To this end, there is a necessity to separate the state and the church in order to create a supportive environment that is not shrouded in morality in determining whether or not same-sex marriages should be legalized.

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