Constitutional-Literacy-19

=**Section 19: Marriage Rights**=

Marriage, which falls under family law, has generally been a state issue. Again, based on the 10th amendment as well as the original intent of the Constitution, if there is a power not granted to the federal government or denied to the states, then than power is a state power. Also keep in mind the federal government was only originally intended to act where the states weren't competent enough to act on their own. Marriage has been a state by state issue. In more recent years, the idea of homosexual marriage has found its way to the federal level.


 * Comprehension Question: Which level of government is suppose to handle marriage(based on original intent)? How do you know this is the original intent (think competency)?**

The Supreme Court has been instrumental as an aid in changing society's values in terms of marriage laws - laws that were intended to be state by state laws.

In June of 2011, the Richmond Federal Reserve flew the homosexual rights flag under the U.S. flag. This showed that a part of the government that holds the nation's money supply favored something that many are against. Staking the flag (like on the moon or when Columbus landed in the "New World") marks dominance. Think of the outrage if the Federal Reserve would have flown the Christian flag. Our government is suppose to be neutral. The objective of the homosexual rights movement is dominance. This is seen in how this movement has gotten the government to help support this change in the nation's values and morals. As mentioned, there would be complete outrage and protests if any government building flew the Christian flag. The Supreme Court has been instrumental as an aid in changing society's values in terms of marriage laws - laws that were intended to be state by state laws.

Under our Founding Fathers intentions, it's clear that homosexual behavior was illegal (based on laws of the day). In more recent times, this has been changing. There have been a few court cases that dealt with this issue. In Bowers v. Hardwick 1986 there was a Georgia law against sodomy. In a 5-4 ruling, the Supreme Court upheld the constitutionality of this law. There was immediate backlash against the decision. It would get reversed 17 years later. In terms of the freedom to contract, employers are free to hire and fire whomever they will with the exception of specific discrimination laws. Employers cannot discriminate on race, religion, or gender. These are backed by amendments (1st protects religion, 13th, 14th, and 15th protect racial equality, and 19th protects gender equality). So what's the arguments. On the SSM side, it's the equal protection clause. But on the other hand, the equal protection clause (section 17) wasn't intended to justify any behavior at all (example: polygamy is still banned; sibling marriage, parent-child, and first cousins still banned in most states; age requirements still in most states).


 * Comprehension Question: What was the ruling in Bowers v. Hardwick?**

The core question should be does society think that homosexuality is so important that we should change the basic rules of freedom of state by state power to promote this lifestyle in the whole country. Some say yes under equality while others say no for what society should promote in terms of what research says is best for children (home with a mom and a dad). Same question for polygamy, transgender use of facilities, etc. Is this an issue that is best left to the states? There is also the issue of will groups in favor as well as groups against leave each other alone. The Boy Scouts did not want homosexual men working with young boys and the Supreme Court has upheld this decision, yet homosexual rights groups pushed to get this changed. The Court didn't make the change, but the Boy Scouts of America did. A number of Christian adoption agencies will lose their licenses if Secular-Progressive groups get their way. In Romer v. Evans 1996 there was a gay rights initiative in Colorado that voted to remove gay rights laws from cities in their state. The Supreme Court ruled that the Colorado law was unconstitutional due to the denial of equal protection. This ruling was the first victory for homosexual rights.

In Lawrence v. Texas 2003 there was a question as to whether states could ban homosexual acts. The Supreme Court used the minimal scrutiny test. The court ruled that the government only needs to show requirements of the law and some legitimate government interest. The government used morals and the court ruled that promotion of morals is NOT an interest of the government. Several states have started to allow homosexual marriage.

Again, the Supreme Court is deciding instead of legislatures. The court made its own decision based on their own beliefs and this decision was for the entire nation. In terms of government power dealing with sexual behavior, the rules of evidence make prosecutions very difficult - a certain behavior could be illegal, but even going on the testimony of the "partner" isn't enough to convict. In addition, remember the 4th amendment prohibits improper entry into the home. The victory won be homosexual groups was not the right to be left alone in private, but was that society could no longer condemn their behavior as immoral. Anti-homosexual laws were not meant to punish that behavior, but were intended to promote moral values in society. In California, a doctor refused to artificially inseminate a lesbian couple due to the doctor's religious beliefs. Rather than finding a doctor that would (there are plenty out there who would and do), they sued the doctor and the California Supreme Court ruled against the doctor. [|Click here] for a story on an Oregon baker who faced a state investigation for refusing to make a wedding cake for a homosexual wedding. It's a good example of the movement (movement of secular/atheist groups, not homosexual-rights groups) and their goals.


 * Comprehension Question: What happened to the doctor in California who refused to perform medical services on a homosexual woman because the requested services violated the doctor's faith?**


 * Discussion Question: How have secular groups used the same-sex marriage issue to advance its goals of more secular values (notice that the suits mentioned above were filed and argued by the atheistic group Freedom From Religion, not homosexual-rights groups...it is important to recognize the difference)?**

If society is not free to say what is moral vs. immoral, then the nation has lost its religious freedom. Different states had their own ideas of what was moral and what was not. However, this is an issue that found its way to the federal level (even though the Constitution didn't give the federal government such authority...are states competent enough to handle marriage laws on their own?). If a person is forced to adhere to a belief he or she feels is immoral, then the freedom of that belief system is gone. If employers are not free to hire and fire whom they will, then we have lost economic freedom. The homosexual movement is using the government and the courts to crush those who disagree and view their actions as immoral. Many government jobs and licenses (like medical) require no biases towards race or gender. If homosexual groups get their way, that will include those jobs and licenses. What about a minister who refuses to marry a homosexual couple? These groups would want to see that minister punished, even though church doctrine and the Bible itself is against homosexuality.


 * Discussion Question: Should America follow the rule of "freedom" allowing employers to hire and fire whom they will, or should we follow the rule of "fairness" and require employers to hire (i.e. not discriminate against) homosexuals - would it matter if the employer was a church, a small family owned Christian bookstore, a doctor's office hiring a nurse, or a major corporation? The focus on the country (since the 2015 SCOTUS case) is whether or not businesses owned by Christians should be allowed to refuse service for reasons that force them to go against their religious beliefs. Keep in mind though, if such businesses should be forced by law to perform services that force them to go against religious principles, then all situations must adhere - a sign maker who is homosexual being forced to make signs for the Westboro group that hate homosexuals or a catering service owned by an African-American being forced to cater a KKK dinner. If freedom of conscience is not allowed for one (the Christian business owner) it can't be allowed for other scenarios either. This is the growing dilemma in our nation today. Thoughts?**

In 2013, the Supreme Court struck down the 1996 Defense of Marriage Act in //United States v. Windsor//. This decision means that the federal government has to recognize same-sex marriages in the states that allow same-sex marriage (in terms of taxes, inheritance, Social Security beneficiaries...). This ruling does not stop states from defining marriage is one man and one woman. The Supreme Court also decided not to rule on Proposition 8 in //Hollingsworth v. Perry//. In California in 2008, the California Supreme Court ruled that denying marriage to same-sex couples was against the California Constitution's equal protection clause. After this decision, voters voted to define marriage as one man and one woman. This is the whole Prop 8 issue. Advocates of same-sex marriage in CA took it through the court system and the 9th Circuit Court of Appeals struck down the vote, which meant same-sex marriage was legal in CA. The Supreme Court did not make a ruling one way or the other on a definition of marriage for the entire nation. Marriage is still a state by state issue in terms of defining marriage. In 2015, the Supreme Court ruled 5-4 in //Obergefell v. Hodges// that no state could deny same-sex marriage. Controversy ensued after this case since the five who ruled in favor didn't ground their ruling in the Constitution's original intent (the Court's opinion didn't cite specific clauses in the Constitution). While this was a major victory for the same-sex marriage movement, it set another precedent of the Court ruling based on it's ideology rather than original intent of the Constitution. For most Americans, this is okay when your side wins, but not when your side loses. The four that dissented wrote that the Constitution doesn't give the federal government power over marriage in the Constitution, therefore marriage is an issue reserved to the states.

A current issue regarding same-sex marriage is whether or not it is a civil right or a matter to be dealt with state by state. To go by original intent, family law has always been a state issue (the states are certainly competent enough to handle this topic on their own).

In 2015, the issue came to debate in Indiana after they passed their version of a Religious Freedom Restoration Act. Debate led to a pizzeria that refused to cater a homosexual wedding when asked if they would. Debates ensued as to whether or not that business (or any) should be forced to service a homosexual wedding or be fined if they don't. The issue was whether the government should be allowed to force vs. the conscience of the business. Supports of same-sex marriage (for the most part) said such a business should be forced while opponents say it should not be forced (and used as an example that a homosexual who owns a sign shop shouldn't be forced to make signs for an anti-homosexual group or an African-American caterer be forced to cater a KKK rally - both were hypothetical examples).

View the story of an example of a homosexual who does NOT believe the government should force a business to go against its conscience (you likely won't hear such a story in the media that favors same-sex marriage as well as forcing businesses to adhere). [|Click here]


 * Discussion Question: What point is made by the woman in the article?**

This is certainly a topic the U.S. Supreme Court will deal with. You can be sure it'll be based on the ideology of the court though, not necessarily the original intent of the Constitution. Whether one is a supporter of SSM or traditional marriage, from a constitutionality side, original intent had marriage law with the states. As for equal protection, the original intent was to guarantee former slaves citizenship rights and as learned there are times unequal treatment is allowed (who can purchase alcohol, perform surgery, etc). The upcoming debates will involve transgender use of restroom of the gender they identify as, not what they biologically are as well as whether churches will lose their tax exempt status if they don't perform same-sex marriages.

**Overall: Summarize the main idea of this section and why it's important.**

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