No basis for marriage ban

Georgia has become the next “battleground” in the marriage equality war. Recently, Lambda Legal challenged Georgia’s constitutional ban on same-sex marriage in federal court, arguing that the ban violates the U.S. Constitution. So far, the courts that have considered this issue have unanimously concluded that such bans are unconstitutional.

Georgia’s should, too.

The alleged justifications for same-sex marriage bans have lost their underpinnings. Much opposition is rooted in the religious beliefs of certain faith communities, particularly those drawing from conservative Judeo-Christian traditions. While there is no uniform religious view of the morality of gay and lesbian relationships, the use of the state to advance a particular religious viewpoint runs afoul of the freedom of religion protected by the First Amendment.

Secular moral condemnation cannot justify these bans. The U.S. Supreme Court has made clear that animus alone is insufficient to support such laws. The court rejected an amendment to Colorado’s constitution stripping legal protections from LGBT persons because “the amendment seem(ed) inexplicable by anything but animus.”

In finding anti-sodomy statutes unconstitutional, the court reasoned that simply because “’the governing majority in a state has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice.’” Most recently, the Supreme Court rejected the Defense of Marriage Act because the “avowed purpose and practical effect of the law … are to impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages made lawful by the unquestioned authority of the states.”

Defense of these same-sex marriage bans has coalesced around one argument: protection of the family and, particularly, children. In appealing the federal court’s decision that its marriage ban was unconstitutional, the state of Utah emphasized the “long-term interest of all Utah’s children” because marriage equality “poses real, concrete risks to children.” Under this view, “the man-woman model is simply the one the state and its people believe is best for children.”

These arguments fly in the face of the various medical and psychological institutions that have considered the issue objectively. The American Academy of Pediatrics supports same-sex marriage to protect children. The American Medical Association supports marriage equality, recognizing that it is the denial of marriage rights that creates harm by stigmatizing same-sex couples and their children and contributing to health care disparities for those couples. And the American Psychological Association supports marriage equality because of the benefits that flow from such recognition.

The “save the children” arguments are not new; similar arguments were made by the state of Virginia to support its ban on interracial marriage, which the Supreme Court unanimously struck down as unconstitutional in 1967.

Will marriage equality solve all of the issues facing the LGBT community? No. But Georgia, it’s a good place and time to start.

Tim Holbrook is associate dean at Emory University School of Law.

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