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Marriage Equality

Constitutional Discrimination against Love & Marriage

By March 7, 2012No Comments

I recently participated in a discussion about Judge Parker, a lesbian judge in Texas who is refusing to marry straight couples because of her allegiance to the belief in marriage equality. The following is my commentary:

The Rainbow Gay Pride Flag

The Pot of Gold Is Love

This discussion is indicative of why [the subject of gay marriage] is so contentious. First, I agree, the judge is not doing her job and others are paying for it. Moreover, because as a judge she is held to a much higher standard of responsibility than most, I am sure she is going to suffer the consequences of her conviction. However, staying true to one’s convictions even when technically “wrong” is one of the historical methods individuals have used to fight discrimination, which brings me to my second point. Gay marriage is a constitutional issue on 2 and possibly 3 separate premises. Marriage in the United States is a religious, financial, and social status.

Those who believe in the religious doctrine that marriage should only occur between one man and one woman (or man and woman) have the support of the Constitution with respect to religious freedom in that no one is being or will be forced to participate in the religious ceremony of a gay or lesbian couple. Yet, like a soldier cannot wear his Yarmulke while in uniform and Catholic agencies can’t sustain contracts with the State of Illinois when they refuse to allow gay couples into their foster care registries, this judge cannot continue refusing to marry heterosexual couples without penalty because our freedoms are not boundless.

Those who believe that marriage should occur between sober, consenting adults irrespective of their sexual orientation have the support of the Constitution with respect to the Fifth Amendment because there are approximately 1100 federal benefits given to spouses, which are not given to unmarried individuals despite their gender, e.g., the marital deduction in the federal estate tax system. However, because of DOMA, marriage is now conclusively defined by the federal government as a union between “one man and one woman” and those benefits are absolutely proscribed from gay and lesbian couples, be they married or Civil Union partners. Before Loving v. Virginia, African Americans and white individuals could not marry in Virginia or many other southern states. The issue of gay marriage is no different, unless one believes that individuals choose to be lesbian or gay and that’s another matter entirely. Like it or not, the fact is that DOMA has created a platform by which the federal government is discriminating.

Finally, marriage is a social status. When a man and a woman enter a B&B and tell the desk clerk, “We’re married and would like a room for the weekend,” no one questions them. When they show up at PTA meetings, no one questions them. When they show up in the intensive care unit, no one questions them. Their expressions of their union go without question. Yet, couples who marry in Massachusetts, if they happen to be the same gender, often cannot express the fact of their marriage verbally or on paper without question, without fear of discrimination, or without fear of worse. Consequently, being unable to express the fact that you are in a loving relationship with another consenting adult possibly implicates the other cornerstone of the First Amendment, freedom of speech.

As an African American, female, how can I not, irrespective of my liberal ideology, recognize and acknowledge the fact that DOMA is a discriminating piece of legislation that should be repealed, just like that Virginia law was, more than 30 years ago.

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