The Great Debate — Is same-sex marriage right for America?

by Victor Teoh Yun-Chen, Class of 2014, Junior 1 Cempaka

Same-sex marriage (also known as gay marriage) is a highly controversial issue that has once again made headlines in the United States of America. The Supreme Court has agreed to hear two cases — United States v. Windsor, regarding the right of same-sex couples in states permitting those unions to federal benefits such as social security and health coverage (Defense of Marriage Act) and Hollingsworth v. Perry, concerning whether same-sex marriage is a constitutional right (California Proposition 8).

Today, only nine out of the fifty states, as well as the District of Columbia, have legalized same-sex marriage. In this respect, the United States does not lag behind the rest of the world — only eleven countries have done so, with the Netherlands being the first in 2001. It is time, however, for America to take the lead and legalize same-sex marriage nationwide; polls indicate that most Americans (51% for, 43% against) are in favour of same-sex marriage.

The Supreme Court heard oral arguments on the issue recently, with each of the justices listening to arguments from both advocates and detractors of same-sex marriage. Thousands of impassioned demonstrators from both sides gathered outside the Supreme Court Building opposite the Capitol in downtown Washington, D.C. to show support for their cause; the mood remained festive, with people singing, dancing, waving placards and giving speeches.

Each of the justices, led by Chief Justice John Roberts, took turns to weigh in on the issues over the two days (26 & 27 March) of arguments. The witty Justice Antonin Scalia spoke too, frequently causing the audience to burst into laughter. A notable exception was the taciturn Justice Clarence Thomas, who remained silent over the two days — he rarely speaks during oral arguments; he last spoke on 14 January 2013, and before that, on 22 February 2006.

During the 26 March hearing, Chief Justice Roberts and the Court's liberal wing (Justices Ginsburg, Breyer, Sotomayor and Kagan) questioned attorney Charles Cooper (who represents ProtectMarriage.com) and indicated that they did not believe the Court had standing to hear the case. Justice Anthony Kennedy (the court's swing vote) indicated his concern for the welfare of same-sex couples' children, and Justice Stephen Breyer also questioned how allowing same-sex couples to marry is different from allowing opposite-sex couples who cannot have children to marry, in response to Cooper's argument that the state has an interest in 'responsible procreation'. Conversely, the conservative Justices on the court spoke in favour of Prop 8.

The Justices questioned whether the Court had standing again during the second hearing, even appointing a Harvard law professor to argue that they didn't. Justice Samuel Alito appeared skeptical about DOMA's constitutionality, though he was likely to support the law, while Justice Kennedy sided with the liberal wing, telling Paul Clement (who represents House Republicans) that the question is "whether the federal government has the authority to regulate marriages." Justice Ginsburg was dismissive of Clement's attempts to minimise DOMA's impact, saying that federal benefits "touch every aspect of life", while the Chief Justice tried to undermine the idea that LGBT marriages need special protection.

It is too soon to say definitively how the Supreme Court will rule on the two cases. In United States v. Windsor, some experts believe that the Court will strike down DOMA. In Hollingsworth v. Perry, they believe the Court will invalidate Prop 8 under the equal protection and due process clauses of the Fourteenth Amendment, and rule that same-sex marriage is a constitutional right. Others think that the Court will uphold it, as under the Tenth Amendment, marriage is for the states to decide.

I feel that legalising same-sex marriage is the right thing to do. It is unfair to discriminate against the millions of lesbian, gay, bisexual and transgender Americans who want equality. America is the land of the free and home of the brave, and it is time to take a courageous step forward in legalising same-sex marriage. It is inevitable that laws against same-sex marriage will be struck down, just as laws against interracial marriage have been (Loving v. Virginia, 1967).

'[There are] two kinds of marriage, the full marriage, and then this sort of skim milk marriage.' – Associate Justice Ruth Bader Ginsburg, 26 March 2013.