The courts have have spoken, the decision has been made, and it has been determined that banning same-sex marriage is unconstitutional. The problem is, in spite of the overwhelming evidence and powerful judicial decisions, people are still attempting to ban same-sex marriage. Often, the attempts to ban same-sex marriage are against court orders to change the laws to be less discriminatory against sexual orientation. (Blome) The type of order fundamental to the system of checks and balance the founding fathers tried and argued hard about when the constitution was being created.

Several states, like Hawaii and Alaska, had courts determine not issuing a marriage license to a same-sex couple is unconstitutional, only for the state legislation later to amend that state's constitution to bypass the court order and have the state constitution say marriage is only between a man and a women. (Larson) Legislative overturns of a positive, progressive result for same-sex couples seeking marriage has sparked multiple anti-same-sex marriage laws, including the federal Defense of Marriage Act, DOMA,  which allows the states to not recognize marriage from other states and undermines the U.S. Constitution's “full faith and credit” requirements. (NOLO) The “full faith and credit” requirements, found in Article IV, Section 1 of the United States' Constitution, require each state to recognize, by giving full faith and credit to, the public Acts, Records, and judicial Proceedings of every other state, which should include marriages of any sort made across state lines since marriage is a public act.

Article IV, Section 1 also says, “the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.” The ability of Congress to make laws in relation to what is allowed to be recognized across state borders, according to Article IV, Section 1, is how an act, record, or proceeding is to be proved and what comes out of either proving or failing to prove an act, record, or proceeding occurred in another state. Congress does not have the authority to make any act or law that allows a state to ignore the act, record, or proceeding of another state for any reason. It is troubling that an unconstitutional law has been on the federal law books for over ten years.

Particularly troubling is the way legislations and some lower courts are choosing to ignore the Supreme Court's decision in the 1967 case of Loving v. Virgina, which, at the time, was important for striking down the unconstitutional Virgina law banning interracial marriage. (Knowland) More recently, the case has become important to the same-sex marriage issue due to the statement in the decision that the freedom to marry is a long recognized vital personal right, essential to the pursuit of happiness by free men, and the note that Virgina had violated the Fourteenth Amendment's equal protection clause by repeatedly made distinctions between citizens solely based on their ancestry, which is problematic to free people whose institutions are founded upon the doctrine of equality. (Knowland)

Both the specifying marriage as a vital personal right which is essential to the unalienable right of the pursuit of happiness and the declaration of the Fourteenth Amendment being violated by denying free people who's institutions are based on equality. The Loving v. Virgina case further shows how DOMA is unconstitutional by pointing out all citizens of America are entitled to the right to be married to whomever we want to, marriage is a right and not a privilege, and the government has the responsibility to not discriminate in any manner over who may marry who.

Smaller, state, courts have given verdicts similar to Loving v. Virgina which are more directly about same-sex couples, such as the Goodridge v. Department of Public Health in Massachusetts. The decision of the Massachusetts Supreme Court in Goodridge v. Department of Public Health was;
“The Massachusetts Constitution affirms the dignity and equality of all individuals. It forbids the creation of second-class citizens. In reaching our conclusion we have given full deference to the arguments made by the Commonwealth. But it has failed to identify any constitutionally adequate reason for denying civil marriage to same-sex couples.” (Ulve)

The court goes on to refute many of the claims the advocates for banning same-sex marriage have, such as; marriage is about having children is no longer a fair standard of exclusion, opposite-sex households are better for raising children is ungrounded and may only be true due to the denial of benefits to same-sex parents who would raise the kids the state wants to protect, and there is no grounds allowing same-sex marriage would destroy heterosexual marriage. (Ulve)

The Massachusetts Supreme Court threw out the state's claim of promoting a favorable condition for procreation by banning same-sex marriage was a rational state objective; the court decided, instead, that individual liberty and equal protection was more important. (Larson) The court further made the claim against same-sex marriage destroying by stating the couples only seek  to be married, not to abolish or undermine the institution of civil marriage, and by pointing out allowing different-race marriage did not degrade or harm same-race marriages and allowing same-sex marriage will not diminish the validity and dignity of opposite-gendered marriage. (Ulve)

The court concluded by stating that the ban on marriage creates a deep, scarring hardship on a segment of the population without any rational reason and further legislation based on hostility towards homosexuals would lead to more issues within the homosexual segment of the population while furthering no public welfare goals. (Ulve) All of the evidence presented in the case and the use of rationality allowed the Massachusetts Supreme Court to conclude the state laws banning same-sex marriage to be unconstitutional. (Ulve)

In a case with similar results, the California Superior Court found no constitutionally legitimate state interest could justify discriminatory barriers towards the fundamental right of marriage on the basis of either racial or sexual orientation grounds and tradition cannot justify continued constitutional violations of denying equal protection. (Blome) The Superior Court also found domestic partnerships as being unconstitutional on the grounds of being another form the “separate, but equal” doctrine courts have long rejected. (Blome) The court also found the language of the legal definition of marriage in California discriminatory on the basis of gender with the definition of marriage being between one man and one woman because it prevents one man for marrying another man. (Blome)

The California Superior Court went on to throw out arguments that granting same-sex couples the right to marry would create a slippery slope to other types of marriages. The basis of trowing out the slippery slope arguments was the government had legitimate reasons for banning the brother and sister marriage or adult and child marriage, used as possible ending points to allowing same-sex marriage, such as preventing disease and protecting the children. (Blome) The California Court, like the courts of several other states, has mandated same-sex couples be allowed access to the institution of legal marriage. (Larson)

Unfortunately, some courts choose to rule the other way, using the claim that a different-sex requirement has been apart of the state's marriage law for a long time, a point which is improper for several reasons. (Goldberg) A general reason being the way the U.S. Supreme court has repeatedly stated that history cannot justify the retention of discriminatory laws, one of the reasons the California Court used in determining banning same-sex marriage is unconstitutional. (Goldberg)

A more specific and important reason is the reliance on an inaccurate notion that marriage has not changed at all in the past. The history of marriage has changed much in the thousands of years marriage has been around, let alone the amount of change that has occurred in the last 200 years. 150 years ago, a women that got married would lose virtually all of her identity after marriage. (Goldberg) 50 years ago, divorce was difficult and limited, rape inside of marriage was legal, and interracial marriages were banned. (Goldberg) The biggest change involves the role of the woman in the marriage. At one point, the woman was only meant to give birth, cook, and clean, but nowadays the woman in a marriage has all the same roles as the man and giving birth is no longer as important to heterosexual married couples. Gender roles no longer play any part within marriage itself with men and women being equal in the eyes of the law in every way.

If marriage is a vital civil right, why prevent same-sex marriage? Particularly when the laws against same-sex marriage tend to be discrimination and bigotry against homosexual people as well as an unconstitutional promotion of certain religious ideals, a promotion which violates the no creation of laws that respect a religious establishment clause in the First Amendment of the US Constitution. (Knowland) Ultimately, all the arguments supporting a ban on same-sex marriage rest on religious ideas,  which is an unconstitutional reason for banning same-sex marriage being enshrined into law. (Knowland)

 Works Cited

Blome, Jessica L. "The Religious Freedom and Civil Marriage Protection Act: How Governor Schwarzeneggar Failed His Constituents." Journal of Gender, Race, and Justice 10 (Spring 2007): 481. Opposing Viewpoints Resouce Center. Gale. Polk Community College. 17 Mar. 2009 .

Goldberg, Suzanne B. "A Historical Guide to the Future of Marriage for Same-Sex Couples. (Sexuality and the Law)." Columbia Journal of Gender and Law 15 (2006): 249. Opposing Viewpoints Resouce Center. Gale. Polk Community College. 17 Mar. 2009 .

Knowland, Don. "Allowing Same-Sex Marriage Would Protect Privacy Rights." World Socialist Web Site. Ed. Jamuna Caroll. 2 Nov. 2004. Opposing Viewpoints Resouce Center. Gale. Polk Community College. 17 Mar. 2009 . <http://find.galegroup.c om/ovrc/>.

Larson, Jacob. "It's about time, or is it? Iowa District Court's Invalidation of Iowa's Mini-Doma. (Defense of Marriage Act)." Jornal of Gender, Race, and Justice 12 (Fall 2008): 153. Opposing Viewpoints Resouce Center. Gale. Polk Community College. 17 Mar. 2009 . <http://find.galegroup.c om/ovrc/>.

Nolo Law for All. "A Legal History of Same-Sex Marriage Battles in the United States." Ed. Kate Burns. San Diego: Greenhaven Press, 2005. Opposing Viewpoints Resouce Center. Gale. Polk Community College. 17 Mar. 2009 . <http://find.galegroup.c om/ovrc/>.

Ulve, Sigrid. "Hernandez v. Robles and Goodridge v. Department of Public Health: the Irrantionality of the Rational Basis Test." Journal of Gender, Race, and Justice 11 (2007): 149. Opposing Viewpoints Resouce Center. Gale. Polk Community College. 17 Mar. 2009 <http://find.galegroup.c om/ovrc/>.