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Running Head: SAME-SEX MARRIAGE

Same-Sex Marriage
Steven Arango
Newberry College
Submitted in fulfillment of the requirements for BUA 311 A- Business Ethics
October 7, 2014

Fall, 2014
2100 College Street Box #832
Newberry, SC 29108
727-460-1799
steven.arango@newberry.edu
Dr. Seals

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Morality of this issue will not be discussed only the legality of the issues surrounding same-sex marriage. .SAME-SEX MARRIAGE 2 Abstract This paper discusses whether or not the United States Constitution should be changed to recognize same-sex marriage as the law of the land.

2013. 36). This being said. p. This paper will examine several court cases against the Defense of Marriage Act (DOMA). 18). until June 26th. why DOMA should have never been passed and how the United States Federal Government transcends The Constitution of the United States via the Interstate Commerce Clause. The issues of morality have no bearing on whether or not same-sex marriages legally recognized by states should be legally recognize by the Federal Government. 36). the Federal Government. Cases against Defense of Marriage Act The Defense of Marriage Act “has been under judicial scrutiny in several lawsuits” because of the belief that DOMA “violates the Equal Protection clause of the Fifth Amendment of the U. The only way to adequately decide if the United States Constitution should be changed to recognize same-sex marriage as the law of the land is by understanding DOMA and the Constitution. Constitution” (Solomon & Tiemann 2012. (Nelson 2014. 1173).S.sex marriage has been an issue in the United States for decades now and has become a volatile subject as of recently (Solomon & Tiemann 2012). The Constitution has many broad powers but deciding if the Federal Government should deliberate and rule on same-sex marriage is a legal dilemma (Thomas & Martin 1992. The legality of same-sex marriage and the power to deliberate on it is significant to hundreds of thousands of couples and will have an enormous impact on how constitutional law is interpreted (LaFleur & Obsitnik 2013). One case. p. has not recognized these marriages due to the Defense of Marriage Act (Solomon & Tiemann 2012. p.SAME-SEX MARRIAGE 3 Same-Sex Marriage Same. . Same-sex marriage has been legally recognized handful of states but overall still is not recognized by a majority of states. p. the reason why DOMA is unconstitutional.

SAME-SEX MARRIAGE 4 “Gil v. These plaintiffs were denied this because “DOMA prohibits their marriages from being recognized under federal law” even though in the state of Massachusetts it was recognized as a legal marriage (Solomon & Tiemann 2012. The couple also lived in New York where their marriage “was recognized for all purposes of state law” (Solomon & Tiemann 2012. p. p. 38). p. p. “Windsor v.” was filed on behalf of a “spouse of a same-sex couple who had been together for 44 years and had married in Toronto in 2007” (Solomon & Tiemann 2012. p. United Sates of America. 36). 36). 36). p. which is . Office of Personnel Management. was filed in March 2009 in the U. p. District Court in Boston” on the part of “eight same-sex couples married in Massachusetts” (Solomon & Tiemann 2012. 38). 38). 36). Another case. 38). These plaintiffs applied for federal benefits that were available to “surviving spouses of a valid marriage” (Solomon & Tiemann 2012. GO INTO MORE DETAIL OF CASES add some cases CONNECT THEM DOMA Deemed Unconstitutional These cases both have different scenarios but deal with the same issue. “The power to regulate marital status has traditionally been held by the states” and it has been argued that “DOMA is a radical departure from the division of powers between the states and federal government since there is no adequate justification for DOMA’s prohibition” (Solomon & Tiemann 2012.S. p. The lawsuit aimed to “have DOMA declared unconstitutional and to obtain a refund of the federal estate tax” (Solomon & Tiemann 2012. DOMA did not allow for the plaintiff to “claim the estate tax martial deduction” even though their marriage was seen as legal in the state they resided (Solomon & Tiemann 2012.

or in the Militia. p. nor shall be compelled in any criminal case to be a witness against himself. The Fifth Amendment states that “no person shall be held to answer for a capital. (clarify this paragraph in quote tlaks about equal protection but then say due process clause is it both just one find a quote . Office of Personnel Management the District Courts ruled DOMA unconstitutional. liberty. or property. 9). without due process of law. when in actual service in time of War or public danger. 5). p. the U. The due process clause mentioned in the Fifth Amendment is what makes DOMA unconstitutional. except in cases arising in the land or naval forces. Supreme Court issued its written opinion on United States v.S. nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb. The reason for this finding is significant to understand why DOMA should never have been voted through and why the Constitution has no right to rule against or for same-sex marriage. or otherwise infamous crime. In the case of Gil v. The states have granted these marriages legal by their standards therefore the Fifth Amendment has no choice but to permit these marriages and allow them the same benefits as heterosexual marriages. Windsor and held that Section 3 of the Defense of Marriage Act (DOMA) is unconstitutional” (Schneider & Pietrzak 2014. p. nor be deprived of life. Reasoning of Why DOMA Unconstitutional The reason that DOMA was found unconstitutional was because it “violates the equal protection guaranteed under the Fifth Amendment by not recognizing a same-sex marriage permitted by a state” (LaFleur & Obsitnik 2013. without just compensation” (Thomas & Martin 1992. unless on a presentment or indictment of a Grand Jury.SAME-SEX MARRIAGE 5 claiming that the Defense of Marriage act is unconstitutional. 2013. nor shall private property be taken for public use. 121). “On June 26.

are reserved to the states respectively. .SAME-SEX MARRIAGE 6 from a journal or cornell place if can’t find one) Conclusion The Defense of Marriage Act should have never been (BROUGHT UP? BETTER WORDING PASSED BC IT WAS AGAINST 5TH AMMENDMENT BUT BROUGHT TO TABLE BC NO JURISDICTION) passed by Congress as a federal law. but this would be a misguided interpretation of the Constitution (Thomas & Martin 1992. p. 18). The idea that Interstate Commerce could be affected by same-sex marriage would be used to argue that the United States Government had jurisdiction in this matter. The United States Constitution should not be changed to recognize same-sex marriage as the law of the land because the Federal Government has no legal standing to deliberate on same-sex marriage. therefore. 10). or to the people” (Thomas & Martin 1992. The powers given to Federal Government do not include marriage. 18). leading to significant and ongoing controversy regarding the balance of power between the federal government and the states” (Thomas & Martin 1992. 10). 2). the power falls to the state (Thomas & Martin 1992. p. according to the Tenth Amendment. The Tenth Amendment of the United States Constitution states that “the powers not delegated to the United States by the Constitution. nor prohibited by it to the states. p. “Congress has often used the Commerce Clause to justify exercising legislative power over the activities of states and their citizens. p. collect taxes. etc. p. (Thomas & Martin 1992. declare wars. The reason for this is that the Constitution only allows the Federal Government certain powers such as: regulate interstate commerce. However.

U. I. P. S.com/login. M.ebscohost. L. 39(3).S. (2014). Minnesota Law Review.com/login. Employee Relations Law Journal. (2014). F. http://search.ebscohost... 1171-1209. C.aspx?direct=true&db=lft&AN=95740878&site =ehost-live . 10(1). http://search. 9-13. 98(3).aspx?direct=true&db=s3h&AN=91640071&sit e=ehost-live Nelson.ebscohost. Supreme Court Rules Defense of Marriage Act Unconstitutional--What Does this Mean for Plan Sponsors?. THE DEMISE OF THE DEFENSE OF MARRIAGE ACT: TIME OF DEATH STILL TO BE DETERMINED. (2013).aspx?direct=true&db=lft&AN=94256813&site =ehost-live Schneider.com/login. NAELA Journal. 121-138. & Pietrzak. & Obsitnik.SAME-SEX MARRIAGE 7 References LaFleur. Recognition of Civil Unions and Domestic Partnerships as Marriages in Same-Sex Marriage States. http://search. L.

25(2).. T.law. A.cornell. (2012). http://search. R.com/login. http://www. Efforts to Repeal the Defense of Marriage Act..aspx?direct=true&db=buh&AN=75074199&sit e=ehost-live Thomas.ebscohost.edu/constitution/tenth_amendment http://search.aspx?direct=true&db=lft&AN=89013525&site=e host-live 8 . J. Tenth Amendment. 35-41.ebscohost..com/login. & Tiemann. Legal Information Institute. (1992). & Martin. 1-27. Benefits Law Journal. B. B. W.SAME-SEX MARRIAGE Solomon. P.