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Your Turn, NH: Will this court be forward-thinking, too, regarding marriage?

May 05. 2013 3:04PM

"(T)he freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men."

- Loving v. Virginia

Generally speaking, states get to decide who can marry. For example, ten states, including New Hampshire, and Washington D.C., have passed laws that recognize same-sex marriage. Despite these state laws, same-sex marriages are not as legally valid as mine. If my husband and I were to move to California, our marriage would be recognized by that state. In addition, if I were to die, my husband would inherit my pension.

Under current federal law, my friends in same-sex marriages do not receive the veterans' benefits (including pensions and survivor entitlements), protective tax treatment on income, estates, gifts and property sales, or federal employee benefits - both civilian and military - that heterosexual married couples do. Moreover, states like California have passed laws and amended their state constitutions to explicitly dictate that marriage is only between one man and one woman.

Thankfully, marriage is also a constitutional matter. The fundamental right to marry is found in the U.S. Constitution's broad promise of "due process" when the government takes action. In the 1967 case Loving v. Virginia, the U.S. Supreme Court struck down a Virginia statute that banned marriage between the races. The court did not recognize a new constitutional right to interracial marriage; rather, it declared a right for all persons to select a marriage partner. Specifically, the court ruled that the 14th Amendment requires that the freedom of the choice to marry not be restricted by invidious racial discrimination.

The question for our generation, and for the U.S. Supreme Court, is this: Do the Fifth and 14th Amendments of the U.S. Constitution require that the freedom of the choice to marry not be restricted by invidious sexual orientation discrimination? They absolutely do.

This issue has made its way to the U.S. Supreme Court through two different cases. The first case is Hollingsworth v. Perry, in which the U.S. Supreme Court is being asked to decide if California's Proposition 8, which amended California's state constitution to prohibit same-sex marriages, violates the U.S. Constitution. The second case is United States v. Windsor, which challenges a 1996 federal law, the Defense of Marriage Act (DOMA), which not only defines marriage as a legal union between one man and one woman, but also does not recognize same-sex marriages from states where same-sex marriage is legal.

The court must decide if Congress' definition violates the equal protection clause of the Constitution and if Congress's refusal to recognize states' rights violates the 10th Amendment of the Constitution. In other words, does the definition interfere with a state's desire to have its citizens treated equally by the national government once a same-sex couple has entered into a legal marriage within its borders?

While these cases differ in many respects, they are about a fundamental constitutional guarantee. When for no valid government reason a federal or state law sets up two classifications of people, in this case putting gays and lesbians in a class solely to make them unequal, that violates the Fifth and 14th Amendments.

When California, or the seven other states with similar laws permitting same-sex civil unions but prohibiting same-sex marriages, allows same-sex couples to have all of the rights and responsibilities of marriage through domestic partnerships or civil unions - but won't allow those couples to actually be "married" - that defies equal protection.

Gays and lesbians have traditionally been targeted for discrimination based on their sexual identity, part of that person's human profile that is not subject to change. The federal government or any state government should not discriminate against them based on this innate characteristic.

In Romer v. Evans, the U.S. Supreme Court ruled that an amendment to a state constitution prohibiting gays and lesbians from seeking or receiving protection from discrimination violates the U.S. Constitution.

Overall, both California's Proposition 8 and DOMA violate equal protection that is guaranteed in the Fifth and 14th Amendments of the U.S. Constitution. It remains to be seen if today's Supreme Court justices will be as forward thinking as the court in Loving v. Virginia and ensure that same-sex couples are provided the same constitutional right to marry as interracial couples were in 1967.

Erin B. Corcoran is a professor of law and director of the Social Justice Institute at the University of New Hampshire School of Law in Concord.

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