Homosexual marriage has been a contentious, divisive topic that has played into race, politics and elections. Into race: when the campaign for homosexual marriage is pegged with the plight of racial minorities and the civil rights movement; into politics: when representatives propose legislation to redefine or protect marriage; and into elections: when candidates state their opposition or support for electoral gain. By any measure, it is an issue that could forever stain or adorn one who dares to take a stand. Nevertheless cries of discrimination and challenges similar to the argument presented before the California Supreme Court which led to an overturn of the state’s ban on homosexual marriage, continue to resonate in federal courts throughout the 50 states.
The stance taken by proponents of homosexual marriage as presented to the California Supreme Court was based on the U.S. Supreme Court’s ruling on Loving vs. Virginia, where the U.S. Supreme Court ruled the statues that limited marriage by race was unsupportable, steeped in prejudice and enacted to perpetuate white supremacy; furthermore, the statues were subversive of the principles of equality at the heart of the Fourteenth Amendment, was not grounds to limit a basic right of man to marry, and that Virginia only prohibited interracial marriages involving white persons. Nevertheless, the California Supreme Court weighed heavily on the constitutionally guaranteed civil protections that protect persons from discriminatory exclusionary factors, which not only includes race, but also includes sexual orientation.
Therefore, the California Supreme Court took a relatively linear approach to the U.S. Supreme Court decision in deciding that just as in the Loving vs. Virginia decision, where persons cannot be denied participation on the basis of race, likewise a person could not be denied on the basis of sexual orientation.
However, in the case of Loving vs. Virginia, blacks and whites where not allowed to marry as they choose. To expand, blacks and whites were denied the right to gain a marriage license, rather, were denied the right to engage in a contract between one man and one woman. More specifically, was denied access on the basis of race to freely take part in a state-sanctioned institution that has always [traditionally] been defined to be between one man and one woman, without prejudice to race. It was not something new, as in to invent the practice interracial marriage, but rather a fundamental right that has been present with mankind and sanctioned prior to the statues that constrained blacks and whites from marrying. Moreover reinstituting the right of blacks and whites to participate in marriage, would not affect the institution of marriage in principle. The institution remains intact.
It is not the case with homosexuals. Homosexuals are not denied the right to marry, to gain a marriage license, to participate in a contract between one man and one woman. A declared homosexual can still marry, as the institution of marriage has been defined. Furthermore, there is no married couple of man and woman, in which one is a homosexual threatened legally of their right to their marriage license; neither does any man [generally, mankind in American society] have the right to marry — to gain a marriage license in which the contract is equal to that of a standard marriage license between one man and one woman including all the blessings and rights entailed in such a marriage license, to enter into a contract that entails one man and one man. Frankly, there is no institution that is equivalent to marriage between one man and one woman that is same-sex and denied to homosexuals.
Marriage is essentially a state sanctioned contract by which its participants receive a license. For the sake of simplicity, define the process of obtaining the license as an institution. To determine if there is discrimination, the process to gaining that license must comply with law as to not deny participation on the basis of any of the constitutional guaranteed rights – sexual orientation, race, religion, sex, age, nationality, etc. Furthermore, the fundamental purpose of the institution must be upheld in principle, as to preserve the intent of the institution and all its blessings and rights.
More specifically examine contracts that allow persons to become a legally recognized business. Though all contracts form businesses that are legally recognized by the state, there are a variety of contracts persons can enter by which businesses can define, organize, structure and protect themselves. Each contract persons choose to enter is subjected to stipulations; they require different structures, rules, regulations, liabilities, disclosures, tax exemptions, and manner by which assets are collected, accounted and dispersed – to name a few. Each contract is tiered by requirement and responsibility to the state.
To continue with simplicity, compare and contrast a limited liability company (LLC) to a partnership, both of which are contracts that form a legally recognized and state sanctioned business.
Limited liability companies, according to residual-rewards.com, are “a relatively new type of hybrid business structure that is now permissible in most states. It is designed to provide the limited liability features of a corporation and the tax efficiencies and operational flexibility of a partnership. Formation is more complex and formal than that of a general partnership. The owners are members, and the duration of the LLC is usually determined when the organization papers are filed. The time limit can be continued if desired by a vote of the members at the time of expiration. LLC’s must not have more than two of the four characteristics that define corporations: Limited liability to the extent of assets; continuity of life; centralization of management; and free transferability of ownership interests.”
Partnerships on the hand, as defined by residual-rewards.com, are “two or more people share ownership of a single business. Like sole proprietorships, the laws do not distinguish between the business and its owners. The Partners should have a legal agreement that sets forth how decisions will be made, profits will be shared, disputes will be resolved, how future partners will be admitted to the partnership, how partners can be bought out, or what steps will be taken to dissolve the partnership when needed;. Its difficult to think about a “break-up” when the business is just getting started, but many partnerships split up at crisis times and unless there is a defined process, there will be problems. They also must decide up front how much time and capital each will contribute.”
Clearly, these contracts grant participants the license to become a business, yet they are different in role, responsibility and duty. Because an LLC in general, not in principle, goes through a similar process as well as enjoys some of the benefits, duties, and responsibilities of a partnership, it does not give the LLC the right to act in all powers of a partnership, even though the partnership has most of the rights of an LLC.
Is it discrimination if the LLC where to claim the rights and powers of the partnership? Or does the LLC want to redefine the role and responsibility of an LLC/partnership simply because they are both businesses and the roles of the partnership and LLC as well as the process by which they become businesses are similar. An LLC is not denied the right to reorganize as a partnership; but rather the LLC, in its claim to the rights of a partnership, wants the benefits granted to partnerships without the responsibility of being a partnership, nor does the LLC want to abide by the stipulations that sets a partnership apart from being an LLC; responsibility which includes a standard that is much more demanding than that of a LLC. Though there is good reason for an LLC to act as a partnership, they are two different institutions and are established to serve different roles within society and business.
Likewise, homosexuals are not denied access to the institution of marriage, but want to redefine the role of an established institution to encompass a principle that it was not established to accomplish. Institutions must across the line be fair and open, however the institution does not, in most cases, have to change the longstanding principle of its founding. When discussing marriage one must erase prejudices whether religious or cultural, and discuss the matter in its purest form, in terms of licenses and contracts; black and white. Treating it as such will allow oneself to evaluate the process objectively and determine if discrimination is truly being delegated to any person. My analysis is clear. There is no discrimination.
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