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Sunday, July 18, 2010

Is Same-Sex Marriage a Political Issue?


The issue of same-sex marriage is a constitutional question that could create a fundamental social and legal change in the interpretation and understanding of marriage.  It is a political issue which under the Constitution is to be decided by the people in their sovereign capacity to make or amend the fundamental law hence, politically relevant. 
It is a universal practice of constitutional governments that the validity of a Constitution is fundamentally dependent on its acceptance by the majority of the people in a national plebiscite called for the purpose.  Without the imprimatur of the people in whom sovereignty resides, a Constitution is deemed not reflective of the people’s will.
Sovereignty resides in the people and all authority emanates from them. The powers of the three branches of government proceed from the Constitution whereas, the people in amending the Constitution, does not get their authority from the Constitution for they are the very source of all governmental powers including the Constitution itself.
Those who advocate same-sex marriage believe that denying the gays and lesbians of their rights to marry denies them their fundamental rights to equality before and under the law. They argue that statutes enacted to accord them protection are discriminatory, still distinguish homosexual relationship from heterosexual relationship.
It is an established principle in Constitutional law that the guaranty of the equal protection of the laws is not violated by a legislation based on reasonable classification, provided such classification is based on substantial distinction, must apply equally to all the members of the same class, appropriate or closely related to the purpose of the law and not limited to present condition only. 
Definitely there is a substantial distinction between heterosexual and homosexual relationships.  Natural differences exist; the first group is capable of procreation while the latter cannot
Fundamental rights are not absolute; equality regardless of sex is not inexpugnable.  The equal protection clause tolerates inequalities arising from a reasonable singling out of one particular class.  Moreover, the rule of uniformity does not call for perfect uniformity or perfect equality, because this is hardly attainable.     
Society still treasure the time-honored understanding of marriage, that of a union between a man and a woman. Sex is a vague term, not precisely limited, determined or distinguished in the Constitution.  It is left for the people to interpret it.
The Constitution does not expressly guarantee equality for same-sex marriages. Positive laws are founded on natural law, a true law.  Indeed there is a true law, agreeing with nature, the right law, unchanging, everlasting, cannot be altered, derogated or repealed. 
Law is the result of unconscious development and evolves by slow process in the same manner as language develops.  It is a growth, and finds its roots in the instinctive sense of right of the people.

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