Tomorrow, April 28, 2015, Justices at the U.S. Supreme Court will hear oral arguments as to whether marriage between the same sex is a constitutional right. At stake is whether the 14th Amendment to the U.S. Constitution requires states to recognize marriages from other states and whether it requires states to allow same-sex marriages. Many feel the federal government should not be involved in the issue and it should remain a state issue. One of the many problems with that scenario is there are many federal tax and benefits implications that may outweigh 10th Amendment concerns.
The case centers on a Ohio same-sex couple, whereas Jim Obergefell could not be considered a surviving spouse of his partner who was dying of Lou Gehrig’s disease. At the same time, the court is hearing similar cases from Michigan, Kentucky and Tennessee. It is expected to be argued, Obergefell should be considered the surviving spouse under the equal protection clause of the U.S. Constitution and also the due process clause. If ruled in favor of Obergefell, it would force states that do not recognize same-sex marriage, like Ohio, to do so. In 2013, the U.S. Supreme Court ruled the Defense of Marriage Act (DOMA), which was precisely one of the Libertarian Party’s objectives – to end the federal ban on same-sex marriages.
In 2009, Libertarian Party’s Gay and Lesbian Adviser, Catherine Sumner said, “The Obama administration extends their hand for donations from the LGBT community, and then slaps us in the face with the other hand with the defense of DOMA.” Sumner was speaking of the Obama administration legally defending DOMA in court at the time. Libertarians had voiced their disappointment over a legal brief filed by the Obama administration asking a federal court to uphold the 1996 Defense of Marriage Act, which allowed states to refuse to recognize same-sex marriages. During the 2008 presidential election, Barack Obama voiced his opposition to same-sex marriage and though stating he would repeal DOMA, once in office, he did the opposite.
At the time, both the Democratic Party and the Republican Party were not supportive of this level of LGBT support. In 2009, a CBS News poll showed only 46 percent of Democrats were supportive of same-sex marriage. It was not until 2012, the Democratic Party officially called for DOMA’s demise and the Republican Party remains non-supportive of same-sex marriage — both well behind the Libertarian Party.
Even when found unpopular, the Libertarian Party was ahead of the curve on this and most serious issues facing America. In 2000, its platform was unabashedly calling for the repeal of all laws against homosexuality. The Democratic and Republican parties were silent or supported measures discriminatory against homosexuals. Libertarians are not so much in favor of specialized rights for LGBT Americans, but are strongly in favor of individual rights and not having Americans discriminated against.
Public opinion is on Obergefell’s side on the matter as well as “evolving” opinions by elected officials. 2012 Libertarian Party presidential nominee, Gary Johnson, did not need to evolve and often called for same-sex marriage to be a constitutional right. During the election, Johnson said, “The Constitution requires that all citizens be treated equally and makes no reference to gender in assuring those equal rights. By any fair measure, equal access to marriage for all Americans is a right – guaranteed by the Constitution.” From the onset, Libertarians feel Americans should not have to ask the government permission to marry; however, for so long as they must for a wide range of reasons, it should not be discriminatory. During the 2012 presidential election, Barack Obama took Gary Johnson’s lead and radically changed his stance on the issue — though not going so far as Johnson calling it a constitutional right of Americans. Last week an ABC News/Washington Post poll showed 61 percent of Americans feel same-sex couples should be allowed to legally marry and in 2004, 62 percent had opposed it.
In Florida, the ban on same-sex marriage was legally struck down and same-sex marriage licenses have been issued since January 6, 2015. Florida also now recognizes same-sex marriages from other states. The Republican-controlled Florida legislature is considering a bill to end the state’s ban on same-sex adoption of children though is not likely to pass since the state’s House and Senate are preparing to adjourn until 2016.