Thursday, May 31, 2012

Argument Against Same-Sex Marriage

I guess I did a same-sex marriage mock trial in one of my classes. In a legal context it's interesting to see how the basis of my argument is that no rights have been taken away from gay couples. New case law supporting same-sex marriage often uses the reverse of my argument now; gay rights have been taken away via Prop 8, DOMA, or others and must now be given back.

RESOLVED: States have a legitimate interest in restricting marriage to couples consisting of one man and one woman so that legal challenges to marriage licensing statutes, which are interpreted by State Departments of Health to apply only to male/female couples, must fail.

Two questions regarding the resolution have been posited. The first question is whether marriage rights are within the jurisdiction of the judicial system. The second question put before us is whether to apply strict scrutiny to the restriction of same sex marriages. While the opposing side finds that marriage is indeed a right that the courts must preside over, it most certainly is not and must be considered a priori to any other issues brought up at all.

To begin with, as Commonwealth v. Chou clearly states, the courts cannot actively hand down rights to people until a legislature has passed or restricted said rights. In reviewing the resolution it becomes more than clear that marriage is not a right granted to anyone in these United States. The very necessity of a blood-test, a willing partner, and many other chance factors makes the right to marriage a silly and unrealistic view of our modern society. To say that marriage is a right is to trivialize the meaning of marriage itself. Marriage is a privilege that the legislature has yet to regard as a right and until that day this court will not even consider the issue of who gets to marry whom.

However, those in the opposition will surely ask this court to consider it, and I suspect that this court will eventually have to deal with marriage as a right. And on those grounds, for same-sex marriage, one party will argue for strict scrutiny. And they are right, strict scrutiny must be applied, and surely, when it is, same-sex marriage will be struck down. Strict scrutiny relies on a compelling governmental interest in the law in question, and marriage, being the prerequisite for the fundamental economic unit in this country, is wholly in the government’s interest. The question then arises; why not generate more of these essential roots to the functioning of this country? The answer is simple: opening the door to freely defining the basic economic unit of our system would drastically alter the landscape of these United States and ultimately ruin the chances of making accurate guesses as to the outcomes of our economy. Conferring benefits to same-sex couples would necessarily reduce the government’s ability to govern. Furthermore, strict scrutiny requires the government to narrowly tailor its laws, and by opening up marriage to all couples regardless of composition the legislature would effectively be opening the floodgates. Passage of a same-sex marriage law could never possibly be so closely tailored as to allow only the “best” people to marry, and if it did then it would fail strict scrutiny as under-inclusive. I refer the court to Korematsu v. United States wherein strict scrutiny was applied in a fashion similar to how it would be applied here. While the circumstances were very different, it nevertheless set precedent for de jure discrimination. As a reminder, it required openly discriminatory language and eventually, the court upheld executive order 9066. Basically, for a ban on same-sex marriage laws to be struck down by this court, there would have to be a significant harm being done to any parties including a historical precedent set for real benefits lost. Same-sex couples could never provide this and thus find that they are unable to realize a discussion on equal protection.

For those reasons the court neither has to hear nor consider same-sex marriage at all, and if it does it must promptly strike down any laws because they would be surely seen as destructive to the regular functioning of government.