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The Universal Right To Family Essay

2048 words - 8 pages

Although most Americans have particular positions on what constitutes the ideal family, it is vital for policy engage all members of society equally without regard to cultural, religious, or political factors. The idea that all Americans have the right to a family via substantive due process (which is slightly different than due process ) relies upon a judicial review process blind to appeals of pathos and responsive only to rational approaches. However, as noted by the Harvard Law Review, in reality, “substantive due process is at least partially culturally and politically driven” (2791). In recent years, the rights of gay families have come to the forefront of American cultural discourse as more gay families and individuals have demanded universal access to a legally recognized family structure. It is essential for the public to realize the extent of damage inflicted upon gay American families by unclear and discriminatory policies. Rather than impose greater difficulty for these families by supporting unconstitutional statutes that proscribe same-sex adoption or further limit Full Faith and Credit and marriage rights to gays, all Americans have an obligation to speak out against prejudices that create an atmosphere of inequality, fear, and uncertainly for gay families.
As illustrated by the Defense of Marriage Act, whether or not it ought to, Congress often acts beyond the scope of its enumerated and implied constitutional powers to the lasting harm of families throughout the country (1 USC Sec. 7; 28 USC Sec.1738C). The DOMA ostensibly makes it possible for states to deny gays the right to Full Faith and Credit. Or, in simple parlance, if a gay couple gets married in Massachusetts but they live in California, California has recourse to not recognize their marriage as valid (although a straight couple could do the same without complication). Although this concept directly contravenes the both Amendments 10 and 14 of the US Constitution, the Supreme Court has never directly addressed it partially because of the cultural volatility surrounding the debate on gay marriage. However, in their relaxed silence on DOMA, the Supreme Court tacitly condones hundreds of state statutes and state constitutional amendments that irreparably impair gay families everyday.
For instance, DOMA curtails the right to adopt and the rights of gay adoptive parents even in states without express laws about universal adoption rights. Although most people would say the right to a family is fundamental, currently seven states have laws expressly banning gay adoption. Although states like Massachusetts and California have laws specifically protecting universal adoption rights, 25 states have vague laws that are also harmful under the purview of DOMA (“Human Rights Campaign”). According to legal scholar Mark Strasser, this vagueness represents a monumental issue when a same-sex family moves to a state that does not recognize adoption by non-married parents or when the...

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