Q&A: Is Marriage a Constitutional Right?

Q: Is marriage a constitutional right?

A: Yes. One of our most fundamental rights as citizens of the United States of America is the ability to marry, and the ability to marry the person of our choice, providing that they are of legal age to enter into any binding contractual agreement. Courts in this country have determined that the right to marry is, in some cases, more fundamental than the right to vote. It cannot be denied:

• on the basis of an individual's race;
• to those who have shown themselves to be delinquent on child welfare payments;
• to hardened criminals in prison.

Everyday, however, tax-paying, law-abiding and in many cases military serving gays and lesbians who love and cherish each other and their children are denied the ability to protect their families with a marriage license.

The 14th Amendment to the U.S. Constitution extends "No State shall make or enforce any law which shall abridge the privileges or imunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property without due process; nor deny to any person within its jurisdiction the equal protection of the laws."

The Constitution of The State of Georgia provides similar protections extended by the federal Constitution. "Protection to person and property is the paramount duty of government and shall be impartial and complete. No person shall be denied the equal protection of the laws." Georgia's Equal Protection Clause, Article I, Section I, Paragraph II.

Article I, Section I, Paragraph VII instructs that the Georgia General Assembly must enact such laws that will protect the full enjoyment of the rights, privileges and immunities afforded all United States citizens.

The intent of both the U.S. and Georgia Constitutions is distorted when we discriminate on the basis of gender in the issuance of marriage licences and treat some families different than others.

Courts in Hawaii, Alaska, Oregon, Washington, California, Minnesota, Vermont, New York, Massachusetts, Maryland, Maine, Iowa, Connecticut, Rhode Island and the District of Columbia have found that same-sex couples have a constitutional right to marriage licenses or the protections that stem from them. Georgian legislators who have fought and have successfully wrote lesbian and gays out of the Georgia Constitution as fully equal citizens are actually recognizing that the ability to marry someone of the same-gender was likely a constitutionally protected right in Georgia--a right they wanted to take away and did with Amendment 1 to the Georgia State Constitution. Otherwise, there would have been no need for such an amendment which directly addresses couples of the "same-sex" as an excluded class.

So what are we left with? We are left with a syntax error, a legal contradiction and a logical incongruency between the equal protection clauses of the United States and the Georgia Constitution and its Amendment 1. This must be addressed and resolved immediately. We cannot have both stand. Either we must do away with Equal Protection for all citizens or do away with Georgia's Amendment 1 or declare removal of citizenship status from all persons declaring themselves gay or lesbian to make the laws then agree. This is exactly why amending the Georgia Constitution undermines and jeopardizes the truth of everyone's freedom. This is why we must abolish the use of our state Constitution to establish discriminatory policies. It is our heritage as Americans which decrees this consciousness.

The Ramifications of Georgia Constition Amendment 1:

• Passage of the constitutional amendment has denied access to the judicial branch of government to a diverse group of citizens. It says to gay, lesbian, bisexual and transgender citizens of Georgia--and their children--that their love and their relationships are not real and valid, that their families are not real and valid and that none of these are deserving of equal protections under our state laws and that they must accept our state goverment's judgement of them as second-class citizens. 
• The damage has already been done with sending the message that one group can simply change the constitution to bar another group from their rights because of ideological differences. All one group has to do is outnumber the other and run a popular vote. Who's next? African Americans, Latinos, or other religious minorities? If this can happen and has happened, what's the purpose of having a constitution?

As soon as I became fully aware of these implications, I was left scratching my head trying to figure out how Georgia has gotten away with this for 8 years. I now know the answer to that too: Get the discriminated class to accept their defeat or move because it is now THE LAW OF THE LAND. Check! Next, scare legislators from raising the issue any time in the foreseeable future by making it a "third-rail" issue, "If you even speak of attempts of trying to remove the amendment, we the political majority will close ranks and spite you by shutting you out of all cooperation on any legislative measures you need our help with and will then turn the public consensus against you and remove you from your seat come election time." Check! Lastly, let the injustice sit and marinate for 10 years and the people will quiet down, adjust, forget about it and then move on with their lives just as peaceably as they did before the fuss even began within the recent years because of our liberal sister, Massachusetts. They did not foresee Prop 8 coming four years later and the furor it erupted nationally. They did not foresee the Coming of Obama, a President who would fearlessly with determination pull the rug from under antigay policies in the military and then turn his powers to the aim of tripping up the Defense of Marriage Act. They did not foresee that over the last 8 years, 8 more states would remove their barriers to marriage equality. Each time, reminding Georgians, "Oh yeah, what about our marriage amendment?" It does not look as if they are going to be able to check this last measure and they will be forced this confront this contradiction much sooner than many anticipate. This is the most immediate aim of the Love Under Fire Campaign, to not let Georgia off the hook with this.