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OPINION: States don’t have the power to rule on gay marriage

Posted by Alex Pearlman  March 6, 2012 06:26 PM

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uu ministers gay marriage protest boston.jpgBy Allison Thibault

Although Massachusetts passed a law legalizing same-sex marriage eight years ago -- the nation’s first state to do so -- the majority of other states have been fighting long, ugly battles over what the government should do about the rights of homosexuals.

While some states, like New York and Washington, have legalized same-sex marriage within the last year, New Hampshire is considering repealing its 2-year-old gay marriage law. The U.S. Circuit Court of Appeals ruled California’s controversial Proposition 8 unconstitutional in early February, saying that the ban “served no purpose, and had no effect, other than to lessen the status and dignity of gays and lesbians.” Other states, including Maryland and New Jersey, have also been working in recent weeks to change their laws on same-sex marriage, but not without fierce debate and controversy.

As every state in the country individually decides (and then re-decides) its stance on the legality of gay marriage, we citizens are left wondering about two core, but often overlooked, aspects of this issue: Why are these battles being fought on the state level rather than the federal one? And how is it OK for the government to make a legal decision on the religious institution of marriage?

The conventional answer to the first question invokes the power of the 10th Amendment to the U.S. Constitution, which states that all powers not explicitly given to the federal government are reserved for the states. Since the Constitution never mentions marriage of any sort, it’s widely accepted that marriage laws should be decided on a state-by-state basis. But gay marriage is a civil rights issue; what’s really up for debate is equality. And why should we let one state grant full equality to homosexuals and allow another state to bar them from it?

Contact public officials. Click here to raise your voice on this issue.Prior to the 1960s civil rights battles, America allowed each state to make its own laws concerning the lives and treatments of Black citizens. But once the federal government realized a Black person could legally be a true equal in one state and subjected to awful discriminatory policies in another, they rectified the situation by enacting nationwide laws barring public discrimination based on skin color. The government should treat gay marriage the same way because no citizen of a nation that prides itself on ensuring equality and accepting diversity should be treated differently from state to state based on part of their natural identity.

The second, and more elusive, question in the fight for gay rights deals with the intersection of a secular government and religious institutions. Marriage is a religious act, and although this fact might make Rick Santorum vomit, it means that no government, state or federal, has a right to make a law about it, as per the First Amendment to the U.S. Constitution.

And yet, no one has ever protested the fact that state governments across the nation use the term “marriage” to define the rights and benefits of committed couples rather than a more secular term like “civil union.” If the government revamped the language in their laws, they could leave religious institutions to decide the fate of marriage on an individual basis, church/synagogue/mosque by church/synagogue/mosque.

By realizing the complexities within the battle for marriage equality, the answer actually becomes much simpler: The United States should protect the equal rights of homosexuals by enacting a secular, federal law allowing civil unions for all and leave marriage to religions.

What's your opinion on same-sex marriage?

Photo by Philocrites (Flickr)

About Allison -- I am a journalism and creative writing student at Suffolk University. Politics, poetry, photography, and fine art are my passions. You can find me scrolling through the top stories on CNN, dreaming of exploring the cities featured in the New York Times travel section, inventing elaborate stories about strangers who sit across from me on the T, and wandering aimlessly through the streets with my camera. Twitter: @allytgurl

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