Gay Marriage: Another Take on the Debate

So, we’ve all heard the typical pro-gay marriage arguments. Separation of church and state, equal protection of the laws, there’s nothing wrong with being gay, and the list goes on.

Let’s take a look at a new argument, a fresh angle with which to tackle the whole marriage debate.

Freedom of Contract (also known as Freedom to Contract).

The legal definition of the term is this:

That men and women have the liberty of contracting as they see fit with the expectation that those contracts will be judicially enforced if necessary, subject only to public policy (source: http://duhaime.org/LegalDictionary/F/FreedomofContract.aspx).

This dictates that all people (let’s narrow it down to citizens) have freedom to contract as they please as long as they are not committing a felony. Furthermore, due to the Due Process Clause of the Fourteenth Amendment, no State, without due process of law, can infringe upon a person’s freedom of contract. This was upheld by a rather unfortunate case in which a New York baker sued the State for disallowing him to ‘freely contract’ with his workers (in terms of working hours). Of course, keep in mind that this is a rather simple take of the legalities. And don’t worry, we’ll get back to that ‘public policy’ bit soon.

The definition of contract is this:

An agreement between two or more competent parties in which an offer is made and accepted, and each party benefits. The agreement can be formal, informal, written, oral or just plain understood (source: http://www.lectlaw.com/def/c123.htm).

Under this definition of contract, marriage is ultimately none other than a contract. Marriage is between two parties in which an offer is made and accepted. In marriage, each party benefits (there are medical and monetary benefits). In terms of marriage, the agreement is formal and is written out on paper.

So, under this logic, since all people have the freedom to contract, and marriage is a contract, all people have the freedom to marry, regardless of sex. Furthermore, no State possesses the right to infringe upon this freedom. Thus, it is unconstitutional for the State to ban gay marriage.

Now, don’t think I’ve forgotten about the public policy part of the definition concerning the freedom to contract. As per the definition, public policy can get in the way of freedom to contract. So what is the public policy?

The definition is this:

A principle that no person or government official can legally perform an act that tends to injure the public (source: http://legal-dictionary.thefreedictionary.com/Public+Policy).

Fortunately, I don’t believe I need to expand as to why this does not extend to gay marriage. Ted Boies, pro-gay marriage lawyer of the Prop 8 Trial, portrayed this to a more than satisfactory degree: gay marriage does not injure the public in any way. Banning gay marriage, however, does injure the public.

Here, I’ve presented to you a rather fresh take on the gay marriage debate.

Enjoy.