Same Sex Marriage and Equal Protection Clause Term Paper

Pages: 20 (6291 words)  ·  Bibliography Sources: ≈ 17  ·  File: .docx  ·  Topic: Women's Issues - Sexuality

Same-Sex Marriage - Equal Protection Clause

same-sex marriage and equal protection clause: analysis and recommendation for a legal position for justice in the supreme court for prevention of same-sex marriage

It is generally held among those who view themselves to be 'Constitutionalists' that anything not addressed in the U.S. Constitution was something that should not be the subject matter of the law and is therefore better left out of any type of modifications or amendments that make changes to the essence of the U.S. Constitution. This is held to be the same traditionally in relation to state constitutions within the individual U.S. states. The U.S. Constitution has an equal protection clause that states: "...states shall not deny any person the equal protection of the laws." The clause, interpreted to prohibit discrimination against women however; the issue of sexual orientation had not ever been addressed by the state courts of those who drafted the state constitution. This is true of many of the 'Common Laws' which are applicable even in today's world.

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The work of Michael J. McGivney, Professor of Moral Theology at the John Paul II Institute for Studies on Marriage and Family at the Catholic University of America in Washington, D.C. entitled: "On the Impossibility of Same-Sex Marriage" states that the Catholic religion, and the Christian religion in general have supporting authoritative sources which states: "...homosexuality refers to relations between men and women who experience an exclusive or predominant sexual attraction towards persons of the same sex." The "psychological genesis" of homosexuality is one that has yet to be comprehended or is "...largely unexplained" and an act which is one of "...grave depravity, and that therefore tradition "has always declared that "homosexual acts are intrinsically disordered and 'contrary to the natural law..." Therefore, according to McGivney "under no circumstances can they (same-sex marriage) be approved." (2007) the reason for citing the work of McGivney is not one for attempting to morally or ethically force a resolution of the reader on the subject as to whether same-sex marriages should be supported or even opposed but instead to make clear the characteristics of 'Common Law' to the reader of this work. The reason that McGivney holds that this can never exist is because under the terms of the 'Common Law' in the United States indeed there is ultimately no existing provision of any state constitution, with the exception of Massachusetts that holds any kind of element whatsoever that may be assumed to be applicable to same-sex couples and their marriage issues. Just as in the 'Equal Protection Clause' lack of having meant or assumed to address women, historical common law never presumed or considered addressing marital rights among same-sex individuals.


The work entitled: "Same-Sex Marriage in Washington" a publication of the Washington State Bar Association states that presently, only the sate of Massachusetts has rules that a constitutional guarantee exists which enables full marriage rights for same-sex couples. Two cases are related in this work and specifically the cases of: (1) Andersen v. King County; and (2) Castle v. State of Washington. In the case of Andersen v. King County, eight gay and lesbian couples in 2004 were denied marriage licenses in King County on the basis that state law prohibited same-sex marriage. A lawsuit was filed by the couples in King County Superior Court making the contention that the same-sex prohibit of Washington State violated provisions of the Washington State Constitution. The ruling sought in this case was one that stated that same-sex prohibition of marriage was void and a resulting order by the court to issue the marriage licensed requested by these eight couples. King County joined Washington State as a defendant in this lawsuit. Subsequent to the commencement of the lawsuit the court granted permission for additional individuals and organizations to join the lawsuit in the role of intervenor defendant who sought to uphold the law, which had been challenged in this lawsuit. An adjudication on August 4, 2004 by Judge William L. Downing states that two Washington State Constitutional provisions were violated by the marriage law in the State of Washington specifically: (1) the Privilege and Immunities Claus (Article 1, Section 12); and (2) the Due Process Clause (Article 1, Section 3) in the case Castle v. State of Washington, eleven gay and lesbian couples which included some who were already married elsewhere and who wanted the same legal recognition in Washington State filed an action in the Thurston County Superior Court against the State of Washington which sought a declaratory judgment ruling the marriage law in the State of Washington to be unconstitutional. The ruling, handed down on September 7th, 2004 by Judge Richard D. Hicks stated that the prohibition of Washington State of same-sex marriage was in violation of the Privileges and Immunities Claus (Article 1, Section 12) of the state Constitution of the State of Washington. The ruling in this case was appealed to the Washington Supreme Court, which was heard through a direct review of both cases in a consolidation of the appeals in March 2004. The argument of the appellants was that the Supreme Court should issue a reversal of the decisions of the superior court decisions in Andersen and Castle on the facts that the "state government has a legitimate interest in preserving the traditional institution of marriage." (Washington State Bar Association, 2006) Just as argued at the trial level of this case, it was stated by proponents of same-sex marriage in the State of Washington that the marriage statute in the state stands in violation of the Constitution of the State of Washington. During these hearings the Supreme Court considered other opinions when granting the petitions of several organizations that had requested the court's permission to submit legal argument briefs concerning the issues of this case in what is known as 'amicus curiae' which translates to "friends of the court." The briefs submitted by the organizations are made a part of the appellate record in the case. It is related that 20 amicus briefs were filed by: "...specialty bar associations, civil rights advocates, women's rights organizations, religious groups, state legislators, business groups, labor unions, mental health professionals, history scholars, gay rights advocates, advocates for traditional marriage, and others." (2006) the legal issues that are being appealed in this case are specifically the three Washington sate constitutional provisions stated previously and the question remains of what legal standards will be used by the Supreme Court in its analysis and evaluation of those issues. The claims made by those who support same-sex marriage are that they are being denied "the fundamental right to marry....a fundamental right is one that is 'deeply rooted in this Nation's history and tradition...implicit in the concept of ordered liberty." (Washington State Bar Association, 2006) These fundamental rights have been established and include: "...private sexual conduct, procreation, contraception, family relationships, childrearing decisions, and education. It is clear that marriage is a fundamental right, but the parties disagree about the scope of the right." (Washington State Bar Association, 2006) the Washington State 'Privileges and Immunities Clause' states specifically that: "No law shall be passed granting to any citizen, [or] class of citizens... privileges or immunities which upon the same terms shall not equally belong to all citizens." (Washington State Bar Association, 2006) the legal issue that the Supreme Court will be addressing is "...whether, when the law denies a person the option of marrying someone of the same sex, there is a constitutionally protected privilege that is not being made equally available to all citizens." (Washington State Bar Association, 2006) Those who support same-sex marriage are seeking an independently stronger interpretation of the Privileges and Immunities Clause in Washington State.


The CSR Report for Congress entitled: "Same-Sex Marriage: Legal Issues" (2004) relates that the first state to legalize marriage between couples that were of the same sex was the state of Massachusetts. Federally, the Defense of Marriage Act (DOMA) was enacted by Congress to prohibit "recognition of same-sex marriages for purposes of federal enactments." (Smith, 2004; p.4) Several states have enacted state constitutional amendments that places limits on marriage to " man and one woman." (Smith, 2004; p. 4) Thirty-eight U.S. states have "...enacted statutes limiting marriage in some manner." (Smith, 2004; p.4) the Defense of Marriage Act (DOMA) was enacted in 1996 for the purpose of defining and protection "...the institution of marriage." (Smith, 2004; p.4) DOMA states specifically: "No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such Relationship (28 U.S.C. 1738C; as cited in Smith, 2004; p.4-5) DOMA states that the terms 'marriage' and 'spouse' as applied in… [END OF PREVIEW] . . . READ MORE

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APA Style

Same Sex Marriage and Equal Protection Clause.  (2007, December 2).  Retrieved July 9, 2020, from

MLA Format

"Same Sex Marriage and Equal Protection Clause."  2 December 2007.  Web.  9 July 2020. <>.

Chicago Style

"Same Sex Marriage and Equal Protection Clause."  December 2, 2007.  Accessed July 9, 2020.