There has been much in the news in regards to gay marriage. A San Franciso judge, Vaughn Walker, overturned, California's Prop 8, banning gay marriage. At the same time ordering a temporary stay pending appeal. Final papers were filed for appeal this past Friday, thus, a decision on a permanent stay should soon follow. California's Attorney Genreal, Jerry Brown, has immediately sought to resume gay marriage in light of the new ruling. That is just the bones of the animal.
Marriage is defined as a contract. All persons who are of sound mind, and have arrived to the years of maturity, are able to contract marriage. (legal definition) In this sense, a legal sense, gay marriage does not violate the definition of marriage. However, the US Supreme Court has held that states are permitted to reasonably regulate marriage by prescribing who can marry and the manner in which marriage can be dissolved. The right to marry cannot be casually denied. States are forbidden from preventing marriage in the absence of a valid reason. An example of this is would be such as when the US Supreme Court struck down (ruled against) laws in southern states that prohibited racially mixed marriages.These statutes (southern laws) were found to be unconstitutional in the 1967 case of Loving v Virginia, because they violate equal protection of the law.
Those opposed to gay marriage used this same argument in presenting their case to the court in San Franciso. The judge, being bound by law, found the same as the US Supreme Court, banning gay marriage is a violation of equal rights protection. This case will likely make its way to the US Supreme Court, where once again they will be forced to make a definitive statement on gay marriage.
So, from a legal point of view, marriage is simply a contract. Nothing more, nothing less. From a Constitutional point of view, you can not prevent gays from marrying based on the fact that they are gay as this is a direct violation of the equal protection clause of the Constitution.
So what is the equal protection clause of the Constitution? "All persons born or naturalijurisdiction thereof, are citizens of the United States and and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States: nor shall any state deprive any person of life, liberty, or property, without the due process of law, nor deny any person within its jurisdiction the equal protection of the laws."
What it means: because many states continued to pass laws that restricted the rights of former slaves, on June 13, 1866, Congress passed and sent to the states for ratification, the 14th Amendment. It was ratified on July 9, 1868, the amendment granted US citizenship to former slaves and specifically changed the rule in Article 1, Section 2 that slaves be counted only as 3/5's of a person for purposes of representation in Congress. It also contained 3 new limits on states power: 1) a state shall not violate a citizens priviledges or immunities 2) shall not deprive any person of life, liberty, or property without due process 3) must guarantee all persons equal protection of the law. This limits the ability of states to discriminate against people based on their race, national origin, gender, or any other status. For example, it garantees voting rights, womens rights, minorities rights, equal employment opportunies. It basically garantees civil rights.
So, from a legal point of view, there is no reason that gays can not marry.
The religious right has taken up this battle because they are defining marriage in a religious sense. What they are really defining is 'covenant marriage'. In a covenant marriage the marrying couple agree to pre-marital counseling and accept a more limited grounds for divorce. Covenant marriage emphasizes the belief that marriage is more than just a mere contract between two individuals, it is a religious marriage. There is nothing wrong with that, in fact, it is a good thing. However, a religious marriage can not be forced upon those of other beliefs ......that 1st amendment (freedom of religion) that allows a person to hold and exercise whatever religious beliefs they chose.
So, from a legal point of view, gay marriage is perfectly legal and right and proper. From a religious point of view, it may not be in keeping with some religious beliefs and that is ok too. However, we can not govern or legislate from one single religious point of view. This is exactly why our forefathers had the separation of church and state.
It may interest many to know, however, that many main line churches do welcome gays and many, the Catholic church included, offer special programs that target gays (in the same way that boy scouts target boys, etc). It is only the radical religious right that is putting up such a rant over gay marriage. In the state of California, it was the Mormons who came in from Utah, and did all the campaigning against gay marriage ....it was the Mormons that funded everything and it was the Utah people that pushed Prop 8, it was not even something that originated in California!
In a world where love seems to be so elusive, a divorce rate of 50%, why would we ever want to put out the embers of love, no matter where they burn?