Gay Marriage is Legal
When Massachusetts legalized Gay Marriage as a right stating, by Chief Justice Margaret H. Marshall, "Marriage is a vital social institution. The exclusive commitment of two individuals to each other nurtures love and mutual support; it brings stability to our society. For those who choose to marry, and for their children, marriage provides an abundance of legal, financial and social benefits. In return it imposes weighty legal, financial, and social obligations,"(1) it provided a Constitutional basis for the establishment of Gay Marriage in all 50 states.
Hawaiian Courts are also debating the issue as did Massachusetts and the Supreme Court there has all but given its blessing to same-sex marriage.
Equal Protection Clause Language
United States Constitution, Amendment XIV, Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
The Massachusetts decision did limit gay marriage to its citizens but the Full Faith & Credit Clause of the United States Constitution extended it to all 50 states: "Article IV, Section 1. Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. And the Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof."
In Loving v. Virginia, the Supreme Court stated, "that voting is a "fundamental right" on the same plane as marriage." (2) This case was in 1967 under Chief Justice Warren. The case was about voting rights but established a Constitutional Precedent for Gay Marriage; however, it does establish a basis for a U.S. Supreme Court case.
The simple legal fact is that the Civil Rights Acts have charmed the issue to point that Gay Marriage that may have not been intended by Congress but was interpreted as such by the Warren Court.
The Defense of Marriage Act (DOMA)
The Defense of Marriage Act, or DOMA, is the commonly-used name of a federal law of the United States that is officially known as Pub. L. No. 104-199, 110 Stat. 2419 (Sept. 21, 1996) and codified at 1 U.S.C. 7 and 28 U.S.C. 1738C. The law has two effects.(2)
1. No state (or other political subdivision within the United States) need recognize a marriage between persons of the same sex, even if the marriage was concluded or recognized in another state.
Unfortunately for the DOMA, the law is not on its side as the Warren Court benefited Gay Marriage with its opinion on Voting Rights.
2. The Federal Government may not recognize same-sex or polygamous marriages for any purpose, even if concluded or recognized by one of the states.
The bill was passed by Congress by a vote of 85-14 in the Senate and a vote of 342-67 in the House of Representatives, and was signed by President Bill Clinton on September 21, 1996. (2)
The DOMA relied on the States Rights Doctrine of the United States Constitution; however, the law is flawed since, in every case, a Right established by Congress and/or the U.S. Supreme Court has always conferred upon all states said Right. Hence, the DOMA is unconstitutional.
Final Opinion
Since the Warren verdict in 1967, Gay Marriage has been explicitly allowed by the U.S. Supreme Court invalidating the DOMA. One should note the DOMA was passed during an election year. As a matter of law, a Gay Marriage Demand for Righthood should be filed in Federal Court relying on the Massachusetts decision and the U.S. Supreme Court decision. The U.S. Supreme Court could NOT refuse to hear the case, once it filters through the federal courts, due to Loving v. Virginia. It also could not refuse to state the DOMA is Unconstitutional and Gay Marriage is a right in all 50 states.
How to Establish Gay Marriage as the Law of the Land
A case would have to be brought in Federal District Court against a state that does not allow Civil Unions. Only 20 states have them so it would be easy to do for a championing couple. The complaint (pleading) would mainly cite the following: the refusal of a marriage license for the Gay Couple, the Equal Protection Clause, the Full Faith & Credit Clause, the Loving v. Virgina U.S. Supreme Court Decision of the Warren Court Case, Violation of Due Process, and allege the Defense of Marriage Act is Unconstitutional. Arguably, the federal court would deny the suit so it would have to be appealed to the Appellate Courts such as the 9th Circuit Court of Appeals. In variably, a challenge would come by the Attorney General of the affected state to a more favorable court that would stay the decision then overturn it. Then a petition to the U.S. Supreme Court would have to be made by the Plaintiff. Citing the Warren Decision and the aforementioned, the U.S. Supreme Court would be required to accept the case to its docket. The Supreme Court rarely overturns a precedent so the Roberts Court (current Chief Justice) would have to rule Gay Marriage Legal in all 50 states and require their recognition under the Full Faith & Credit Clause in all 50 states.
While this is a legal opinion and does not provide the significance of Religious Doctrine in Marriage. Henceforth, due to the 1st Amendment, no Church would have to provide Gay Marriage services unless they elect to do so. That is the legal opinion on the Free Exercise of Religion aspect of Gay Marriage. In other words, one right should impose on another.
Side Bar - Personally, I'm opposed to Gay Marriage and agree Civil Unions solves the issue without the mass anger it would create among those ardently opposed. Civil Unions would give society time to digest the issue before moving toward Gay Marriage.
(1) Mass. Law Quote Source: http://lesbianlife.about.com/cs/wedding/a/MassMarria ge.htm
(2) Court Opinion Source, Law Source, and Congressional Vote: http://en.wikipedia.org/wiki/Defense_of_Marriage_Act