Same-sex marriage
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| + | ==What Is Same-Sex Marriage?== | ||
| + | '''Marriage''', of course, is the religious sacrament that joins two persons upon the (sometimes pretextual)<ref>European family politics in the Middle Ages.</ref> basis of love<ref>Or there being a baby on the way: a "shotgun marriage".</ref>, to constitute a new family. In common law, certain rights and privileges attach to marriage: the right to inherit property flows to one spouse, as does the right of hospital visitation, the right to sue under wrongful death statutes, etc., etc. Thus, marriage encapsulates more than a poetic union. Rights and responsibilities attach as well. | ||
| + | |||
| + | '''Same-sex marriage''' is the union of two individuals of the same sex in a marital relationship, with the legal incidents and trappings allotted to this union. Same-sex marriage is rare indeed; more common is a "civil union" between partners of the same sex, which includes these all-important legal trappings, without the titled "marriage" and the religious overtones so indicated. Since the news media and partisan groups treat both of these topics as a single issue, ''this article will do the same.'' Let us acknowledge at the outset, though, that conflating civil unions with marriage, and the rights allotted by marriage with the institution of marriage, is erroneous, and a common rhetorical trick used by far-right commentators. This fallacy will be treated in "Characterizing the Opposition," [[Same-sex_marriage#Characterizing_the_Opposition|below]]. | ||
| + | |||
| + | ==Status Update== | ||
| + | Gay marriage is a contentious issue in the [[United States]], with only one state, [[Massachusetts]], allowing actual marriages, and several others allowing legal unions under various other names which carry the same effect as marriage. Other states have explicitly banned gay marriage, while the issue remains open in others. Canada, by contrast, legalized gay marriage in the province of Ontario in 2003.<ref>It should be noted that Canada has not yet been destroyed by God as an example unto others.</ref> Other provinces shortly followed suit, and it was legalized across the country in 2005, surviving a second vote called by the Conservative government of Stephen Harper in 2006, who following the vote declared that the he "<nowiki>[doesn't]</nowiki> see reopening this question in the future."<ref>[http://www.theglobeandmail.com/servlet/story/RTGAM.20061208.wxsamesex08/BNStory/National/home The Globe and Mail], on gay marriage referendum.</ref> | ||
| + | |||
| + | Several other countries have legalized gay marriage, including The Netherlands, Belgium, South Africa and Spain, with a number of others allowing civil unions to varying degrees. | ||
| + | |||
| + | Some churches perform ceremonies joining persons of the same sex in some kind of union; in [[Unitarian Universalist Church|some]] of them, these can be explicitly called "marriages" while [[Episcopal Church|others]] use language such as "service to give blessings to God for their relationship"<ref>http://www.cnn.com/2007/US/05/10/gay.bishop.reut/</ref>. | ||
| + | |||
| + | ==Arguments For Same-Sex Marriage== | ||
| + | Please see [[Fourteenth_Amendment#Basic_Overview|our Fourteenth Amendment]] article for a primer on types of discrimination, and methods of fighting discrimination. Both are referred to in some of the sections below. | ||
| + | |||
| + | ===Possible Equal Protection Arguments=== | ||
| + | The easiest, most open-and-shut case for gay marriage goes like this: "prohibiting gay marriage classifies on the basis of sexual orientation. Sexual orientation is repugnant to the Constitution. Please allow gay marriage, or allow civil unions that confer the same benefits." This makes the most sense, and is the easiest formulation to state. However, the issue is a little harder... | ||
| + | |||
| + | The preceding argument is an equal protection argument. However gay rights have, thus far, only been advocated on [[substantive due process]] grounds (building from the due process clause), as in [[Lawrence v. Texas]].<ref>In [[Romer v. Evans]], the Supreme Court ''did'' address discrimination against homosexuals, and struck it down on equal protection grounds... however, this did not ''add'' any new rights to couples, or remove existing barriers. Instead, it merely prevented the state of Colorado from erecting (tee hee) new barriers.</ref> The same case ardently refused to address gay rights as an equal protection issue, and refused especially to suggest that gay rights deserve any special protection under the equal protection clause. Without this special protection ([[strict scrutiny]], hopefully at some point) such rights can be removed or abridged with a merely pretextual reason, effectively preventing an equal protection argument for gay marriage from succeeding. | ||
| + | |||
| + | Some hope may be had, though; by way of implication in [[Romer v. Evans]] the Supreme Court intimated that homosexuality may be entitled to a higher form of protection, noting that "animus laid bare" is not enough to justify discrimination. This suggestion at least leaves the door open for an equal protection argument. | ||
| + | |||
| + | ===Substantive Due Process & the Race Analogy=== | ||
| + | The Supreme Court has once before tackled the right to marry. In [[Loving v. Virginia]],<ref>Case citations redacted for cases already fully explained in their linked RationalWiki article. Sorry!</ref> the Supreme Court invalidated a Virginia statute which voided and forbade any marriage between members of different races (miscegenation). The aptly-named Lovings successfully sued Virginia to invalidate the law, although it took until the Supreme Court to win a favorable verdict. | ||
| + | |||
| + | In the opinion, the Supreme Court struck the statute largely on equal protection grounds, finding that the statute improperly set up a racial hierarchy and perpetuated repression and discrimination against African-Americans. Virginia had defended against this argument on the basis that the statute was "formally equal"; it did not hurt African-Americans any more than Caucasians. Neither could marry the other. This ''formal equality'', Virginia argued, was dispositive of any discrimination claim. In finding against Virginia, the Supreme Court employed its rarely-used "Get Real!" technique; regardless of formal equality, said the Court, everyone knew the real impetus behind the law, and couching its defense in legal formalities would not allow the court to overlook this great inequity. This case was a great victory for the civil rights movement.<ref>See more on the case at [[Loving v. Virginia|RationalWiki's]] article on it.</ref> | ||
| + | |||
| + | This was the ''holding'' of the case - or, its primary legal significance. Importantly, though, as an afterthought, the Court tossed in one comment at the very end of the opinion, saying that the Court ''had no need to reach the argument that the due process clause could protect, as fundamental to the American way of life, the right to marry''. Although merely one line of ''dicta''<ref>"Dicta" is by-the-way argumentation presented in an opinion, not necessary to the underlying holding or the critical legal issue being resolved. An example would be, in an opinion holding a defendant liable for tort damages, the court discussing a theory of tort recovery not relied upon in the case. ''Dicta'' have no precedential value; they are, however, illuminating and can be used to form a persuasive case, if not relied upon as the entirety of that case.</ref>, this line suggests that the Court at one point recognized a fundamental right to marry. | ||
| + | |||
| + | A theoretical argument for same-sex marriage could make use of this ''dicta'', defining marriage as a "fundamental right" which is "deeply rooted" in the nation's history, implicit in the concept of "ordered liberty," and the restriction of this right should be struck down upon [[strict scrutiny]] unless it is "narrowly tailored to a compelling state interest." <ref>Washington v. Glucksberg, 521 U.S. 702 (defining the standard for substantive due process claims, and stating that fundamental rights are due [[strict scrutiny]]).</ref> The Supreme Court has consistently held that such rights are due protection.<ref>''Id.''</ref> Opponents will rebut, exclaiming that ''gay'' marriage is not a fundamental right - and therefore should be subject to the comparatively lighter form of judicial review, [[rational basis review]]. The dicta in [[Loving v. Virginia|''Loving'']], proponents can argue, suggests otherwise. | ||
| + | |||
| + | Even if evaluating gay marriage under substantive due process triggers only [[rational basis review]], though, restrictions on gay marriage arguably fail even ''this'' moderate test. Persuasive authority, found in ''Goodridge v. Dep’t of Public Health''<ref>400 Mass. 309 (Marshall, Chief Justice, for the Court).</ref>, suggests that restrictions on gay marriage do fail rational basis review, finding such restrictions are arbitrary and capricious, since: | ||
| + | * There is no showing that restricting marriage to heterosexual couples will further any state interest: no state actor can prove damage to heterosexual marriages if gays are allowed to marry, | ||
| + | * Discrimination based on immorality fails, since this is impermissible in the wake of [[Lawrence v. Texas]], and, | ||
| + | * The state (here, Massachusetts) conceded that gay parents are good parents. | ||
| + | |||
| + | However, any substantive due process argument for same-sex marriage would have to establish, as a predicate, that same-sex marriage is a type of ''conduct'', since substantive due process generally protects only conduct. | ||
| + | |||
| + | ===Objections to the Race Analogy=== | ||
| + | Conservatives object strongly to any attempt to analogize between racism and homophobia, and discrimination against gays and discrimination against non-white races.<ref>"Prominent" homophobe Andrew Schlafly complains about just that [http://www.conservapedia.com/index.php?title=Essay:Liberal_Intellectualism&oldid=290066#motivation here]. Viewers advised to read anything by Schlafly while wearing protective anti-brain-explosion goggles.</ref> The objection is based upon the assumption by said conservatives that sexual preference, ''unlike race'', is not inborn (immutable). The obvious objection is that, in fact, sexual preference ''is'' immutable,<ref>Although debate goes on. See [http://en.wikipedia.org/wiki/Biology_and_sexual_orientation Wikipedia's] coverage of the issue.</ref> or, if not immutable, is so highly correlative with personal identity that it defies classification as a "choice," and should still be legally protected. A more appropriate analogy than race, in this case, would be religion - religion is a choice... although a deeply personal choice... and therefore, the law protects (and should protect) individuals from discrimination on the basis of such deep choices (and it does, in the case of religion). | ||
| + | |||
| + | ===Conduct or Status?=== | ||
| + | Although marriage has traditionally been described as a ''status'' - a quality that inheres as a result of a legal ''imprimatur'' - gay rights activists have increasingly sought to characterize marriage as a type of conduct. This characterization is a deliberate legal and rhetorical strategy that builds upon the fact that, although marriage fits more neatly within the description of a "status," certain aspects of marriage - the fact of the couple's presentment to the community as a joined entity, as well as the personal expression qualities of engaging in a marital relationship - suggest that marriage can be defined at least partially as a type of conduct.<ref>Forthcoming article from the NYU Review of Law & Social Change: will update upon publication.</ref> | ||
| + | |||
| + | This new characterization has important ramifications for the law of same-sex marriage. As discussed in [[Lawrence v. Texas]], homosexual conduct is protected at a high level - somewhere between [[rational basis review]] and [[strict scrutiny]]. Status, though, is protected at a low level. Although this distinction itself may fade before the law comes to conceive of homosexual relationships as "conduct," this plan of attack is yet another potentially successful legal strategy.<ref>Forthcoming article from the NYU Review of Law & Social Change: will update upon publication.</ref> | ||
| + | |||
| + | ===Happiness=== | ||
| + | Being married to the partner of your preferred gender allows participants a much happier domestic life, and better sex. Or at least, sex with a gender you're not desperately unattracted to. | ||
| + | |||
| + | ==Arguments Against Same-Sex Marriage== | ||
| + | ===Characterizing the Opposition=== | ||
| + | Most arguments against gay marriage suggest that allowing persons of the same sex to marry will somehow destroy the family, destroy marriage, or destroy both at once. At least one court has found such argumentation to be ridiculous... and many normal, non-judge people agree.<ref>Goodridge v. Dep’t of Public Health (400 Mass. 309).</ref> | ||
| + | |||
| + | A real problem with arguing for same-sex marriage is that allowing same-sex ''marriage'' is much more contentious than allowing same-sex ''civil unions'' with all the same rights as marriages.<ref>According to [http://www.pollingreport.com/civil.htm several polls], around 45% of Americans oppose any recognition of gay unions. Around 25% support full marriage rights, and calling it "marriage." 27% support, at least, "civil unions." Thus, a plurality of Americans prefer some sort of civil union.</ref> The religious right often attempts to argue against gay marriage by conflating gay marriage with civil unions, and deliberately trying to whitewash over the possibility of civil unions as an intermediate step between no-rights and marriage. Since the religious right has a lot to gain from this deliberate mischaracterization, we should not expect it to cease. However, it is critically important to remember that, when talking about the right to same-sex marriages, few people are talking about forcing churches to marry homosexual couples. This would, in fact, be illegal.<ref>Remember the First Amendment?</ref> After all, churches will - and should - do what they want, and some churches have already started to ''marry'' gay couples. What most people are talking about are the ''federal benefits'' that flow from marriage - inheritance, veterans benefits, etc. | ||
| + | |||
| + | It's about equal rights. Not forcing Christian churches to marry gay couples. Just rights. And the idea of equal rights is - or should be - an American tradition. Always remember this point. | ||
| + | |||
| + | ===Happiness - for whom?=== | ||
| + | As discussed above, in a community allowing same-sex marriage, the two partners in the union experience greater personal happiness. However, when same-sex marriage is banned, those who experience greater happiness are those ''uninvolved'' with the relationship, for example, Bible-thumping preachers, right-wing moralists, busybodies, etc. These people gain tremendous personal pleasure from the unhappiness of others. | ||
| + | |||
| + | ===Is Religious Opposition Somehow More Credible and Salient?=== | ||
| + | Many Christians attempt to argue that, since their opposition to gay marriage is based on religious grounds, allowing gay marriage or prohibiting discrimination against gays is somehow infringing upon their religious liberty.<ref>Conservapedia's [[cp:user:Ed_Poor|Ed Poor]] takes this approach.]]</ref> | ||
| + | |||
| + | The short answer is, "Tough." | ||
| + | |||
| + | The long answer is that describing hatred or discrimination as religiously-motivated is not curative: it ''does not make it any less evil.'' Discrimination against women and people of different races has also been justified on the basis of religion... but it is still wrong. Mass murder has been justified on the basis of religion. That doesn't make it right, though. This is a basic underpinning of a pluralist society. Where there are multiple versions of "reality" and "morality," the one that should be used to form laws is the one that doesn't hurt people. That simple. | ||
| + | |||
| + | The legal answer is that, regardless of religion, when a discriminatory action is identified, Congress has the power by the [[Fourteenth Amendment]] to eradicate that evil. Further, free exercise does not include hate crimes.{{fact}} And finally, speech against homosexuality - like all hate speech - is protected by the First Amendment, to a degree.<ref>''See, e.g.'', Gooding v. Wilson (405 U.S. 518) (applying the First Amendment to strike down statutes that prohibit "abusive" language, and protecting such language so long as it does not present a clear and present danger).</ref> So religious freedom is unharmed, so long as does not infringe upon another's freedom. John Stuart Mill would be proud. | ||
| + | |||
| + | ==Conflict of Laws== | ||
| + | Same-sex marriage presents an interesting difficulty in the American federal system. Where some states may allow gay marriage, others may not, and pursuant to the [[Defense of Marriage Act]], states may even refuse to honor the rights that come with a same-sex marriage (such as the right to sue, the right to inherit, etc.). This proposes a problem in three different ways. | ||
| + | #Suppose a couple runs to Massachusetts, gets married, and returns to their home state, which forbids gay marriage. Should the home state nonetheless honor the duly executed marriage from Massachusetts? | ||
| + | #Suppose a couple lives and is married in Massachusetts, but then moves to an intolerant state. Should the new state recognize the marriage? | ||
| + | #Suppose a couple lives in Massachusetts, is married, and travels on a brief vacation to an intolerant state, where for some reason their marriage becomes a legal issue. How should the new state treat the marriage? | ||
| + | |||
| + | Professor Linda Silberman proposes a solution: a same-sex marriage should be evaluated under the law of the domicile of the married couple, not the law where the marriage was solemnified (as was the common law custom).<ref>Silberman, Same-Sex Marriage: Refining the Conflict of Laws Analysis, 153 U. Penn. L. Rev. 2195 (2004-05).</ref> Thus, in situations (2) and (3), the same-sex marriage should be honored, even by a reluctant state. In situation (1), which can best be characterized as an attempt to evade the law of the home state, the marriage should not be honored. This solution best preserves a state's interest in protecting its morality (somehow), but also preserves the rights of the married couple. | ||
| + | |||
| + | This approach presumes that the Defense of Marriage Act - which ''permits'' states to completely ignore a same-sex marriage where convenient - will not (or should not) be taken advantage of by states to spitefully nullify legitimate out-of-state same-sex marriages. However, many states (Nevada, Georgia, etc.) have declined Professor Silberman's persuasive analysis. | ||
| + | |||
| + | This issue is extremely important, since marriage creates such real and beneficial legal effects. Under the Defense of Marriage Act, states like Nevada and Georgia can prevent the widow of a gay marriage from receiving ''anything'' from his or her partner's estate... for no reason other than intolerance and spitefulness. At a less dramatic level, there are many situations where being "family" provides vital legal rights, such as hospital visitation, approval of care, etc., and the only way for two unrelated people who share their life to be "family" is for them to marry. | ||
| + | |||
| + | ==See Also== | ||
| + | * [[Gay rights]] | ||
| + | * [[Lawrence v. Texas]] | ||
| + | * [[Romer v. Evans]] | ||
| + | |||
| + | ==References== | ||
| + | <references/> | ||
| + | |||
| + | [[Category:Culture]] | ||
| + | [[Category:Human Sexuality]] | ||
Revision as of 16:41, 12 November 2007
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Contents |
What Is Same-Sex Marriage?
Marriage, of course, is the religious sacrament that joins two persons upon the (sometimes pretextual)[1] basis of love[2], to constitute a new family. In common law, certain rights and privileges attach to marriage: the right to inherit property flows to one spouse, as does the right of hospital visitation, the right to sue under wrongful death statutes, etc., etc. Thus, marriage encapsulates more than a poetic union. Rights and responsibilities attach as well.
Same-sex marriage is the union of two individuals of the same sex in a marital relationship, with the legal incidents and trappings allotted to this union. Same-sex marriage is rare indeed; more common is a "civil union" between partners of the same sex, which includes these all-important legal trappings, without the titled "marriage" and the religious overtones so indicated. Since the news media and partisan groups treat both of these topics as a single issue, this article will do the same. Let us acknowledge at the outset, though, that conflating civil unions with marriage, and the rights allotted by marriage with the institution of marriage, is erroneous, and a common rhetorical trick used by far-right commentators. This fallacy will be treated in "Characterizing the Opposition," below.
Status Update
Gay marriage is a contentious issue in the United States, with only one state, Massachusetts, allowing actual marriages, and several others allowing legal unions under various other names which carry the same effect as marriage. Other states have explicitly banned gay marriage, while the issue remains open in others. Canada, by contrast, legalized gay marriage in the province of Ontario in 2003.[3] Other provinces shortly followed suit, and it was legalized across the country in 2005, surviving a second vote called by the Conservative government of Stephen Harper in 2006, who following the vote declared that the he "[doesn't] see reopening this question in the future."[4]
Several other countries have legalized gay marriage, including The Netherlands, Belgium, South Africa and Spain, with a number of others allowing civil unions to varying degrees.
Some churches perform ceremonies joining persons of the same sex in some kind of union; in some of them, these can be explicitly called "marriages" while others use language such as "service to give blessings to God for their relationship"[5].
Arguments For Same-Sex Marriage
Please see our Fourteenth Amendment article for a primer on types of discrimination, and methods of fighting discrimination. Both are referred to in some of the sections below.
Possible Equal Protection Arguments
The easiest, most open-and-shut case for gay marriage goes like this: "prohibiting gay marriage classifies on the basis of sexual orientation. Sexual orientation is repugnant to the Constitution. Please allow gay marriage, or allow civil unions that confer the same benefits." This makes the most sense, and is the easiest formulation to state. However, the issue is a little harder...
The preceding argument is an equal protection argument. However gay rights have, thus far, only been advocated on substantive due process grounds (building from the due process clause), as in Lawrence v. Texas.[6] The same case ardently refused to address gay rights as an equal protection issue, and refused especially to suggest that gay rights deserve any special protection under the equal protection clause. Without this special protection (strict scrutiny, hopefully at some point) such rights can be removed or abridged with a merely pretextual reason, effectively preventing an equal protection argument for gay marriage from succeeding.
Some hope may be had, though; by way of implication in Romer v. Evans the Supreme Court intimated that homosexuality may be entitled to a higher form of protection, noting that "animus laid bare" is not enough to justify discrimination. This suggestion at least leaves the door open for an equal protection argument.
Substantive Due Process & the Race Analogy
The Supreme Court has once before tackled the right to marry. In Loving v. Virginia,[7] the Supreme Court invalidated a Virginia statute which voided and forbade any marriage between members of different races (miscegenation). The aptly-named Lovings successfully sued Virginia to invalidate the law, although it took until the Supreme Court to win a favorable verdict.
In the opinion, the Supreme Court struck the statute largely on equal protection grounds, finding that the statute improperly set up a racial hierarchy and perpetuated repression and discrimination against African-Americans. Virginia had defended against this argument on the basis that the statute was "formally equal"; it did not hurt African-Americans any more than Caucasians. Neither could marry the other. This formal equality, Virginia argued, was dispositive of any discrimination claim. In finding against Virginia, the Supreme Court employed its rarely-used "Get Real!" technique; regardless of formal equality, said the Court, everyone knew the real impetus behind the law, and couching its defense in legal formalities would not allow the court to overlook this great inequity. This case was a great victory for the civil rights movement.[8]
This was the holding of the case - or, its primary legal significance. Importantly, though, as an afterthought, the Court tossed in one comment at the very end of the opinion, saying that the Court had no need to reach the argument that the due process clause could protect, as fundamental to the American way of life, the right to marry. Although merely one line of dicta[9], this line suggests that the Court at one point recognized a fundamental right to marry.
A theoretical argument for same-sex marriage could make use of this dicta, defining marriage as a "fundamental right" which is "deeply rooted" in the nation's history, implicit in the concept of "ordered liberty," and the restriction of this right should be struck down upon strict scrutiny unless it is "narrowly tailored to a compelling state interest." [10] The Supreme Court has consistently held that such rights are due protection.[11] Opponents will rebut, exclaiming that gay marriage is not a fundamental right - and therefore should be subject to the comparatively lighter form of judicial review, rational basis review. The dicta in Loving, proponents can argue, suggests otherwise.
Even if evaluating gay marriage under substantive due process triggers only rational basis review, though, restrictions on gay marriage arguably fail even this moderate test. Persuasive authority, found in Goodridge v. Dep’t of Public Health[12], suggests that restrictions on gay marriage do fail rational basis review, finding such restrictions are arbitrary and capricious, since:
- There is no showing that restricting marriage to heterosexual couples will further any state interest: no state actor can prove damage to heterosexual marriages if gays are allowed to marry,
- Discrimination based on immorality fails, since this is impermissible in the wake of Lawrence v. Texas, and,
- The state (here, Massachusetts) conceded that gay parents are good parents.
However, any substantive due process argument for same-sex marriage would have to establish, as a predicate, that same-sex marriage is a type of conduct, since substantive due process generally protects only conduct.
Objections to the Race Analogy
Conservatives object strongly to any attempt to analogize between racism and homophobia, and discrimination against gays and discrimination against non-white races.[13] The objection is based upon the assumption by said conservatives that sexual preference, unlike race, is not inborn (immutable). The obvious objection is that, in fact, sexual preference is immutable,[14] or, if not immutable, is so highly correlative with personal identity that it defies classification as a "choice," and should still be legally protected. A more appropriate analogy than race, in this case, would be religion - religion is a choice... although a deeply personal choice... and therefore, the law protects (and should protect) individuals from discrimination on the basis of such deep choices (and it does, in the case of religion).
Conduct or Status?
Although marriage has traditionally been described as a status - a quality that inheres as a result of a legal imprimatur - gay rights activists have increasingly sought to characterize marriage as a type of conduct. This characterization is a deliberate legal and rhetorical strategy that builds upon the fact that, although marriage fits more neatly within the description of a "status," certain aspects of marriage - the fact of the couple's presentment to the community as a joined entity, as well as the personal expression qualities of engaging in a marital relationship - suggest that marriage can be defined at least partially as a type of conduct.[15]
This new characterization has important ramifications for the law of same-sex marriage. As discussed in Lawrence v. Texas, homosexual conduct is protected at a high level - somewhere between rational basis review and strict scrutiny. Status, though, is protected at a low level. Although this distinction itself may fade before the law comes to conceive of homosexual relationships as "conduct," this plan of attack is yet another potentially successful legal strategy.[16]
Happiness
Being married to the partner of your preferred gender allows participants a much happier domestic life, and better sex. Or at least, sex with a gender you're not desperately unattracted to.
Arguments Against Same-Sex Marriage
Characterizing the Opposition
Most arguments against gay marriage suggest that allowing persons of the same sex to marry will somehow destroy the family, destroy marriage, or destroy both at once. At least one court has found such argumentation to be ridiculous... and many normal, non-judge people agree.[17]
A real problem with arguing for same-sex marriage is that allowing same-sex marriage is much more contentious than allowing same-sex civil unions with all the same rights as marriages.[18] The religious right often attempts to argue against gay marriage by conflating gay marriage with civil unions, and deliberately trying to whitewash over the possibility of civil unions as an intermediate step between no-rights and marriage. Since the religious right has a lot to gain from this deliberate mischaracterization, we should not expect it to cease. However, it is critically important to remember that, when talking about the right to same-sex marriages, few people are talking about forcing churches to marry homosexual couples. This would, in fact, be illegal.[19] After all, churches will - and should - do what they want, and some churches have already started to marry gay couples. What most people are talking about are the federal benefits that flow from marriage - inheritance, veterans benefits, etc.
It's about equal rights. Not forcing Christian churches to marry gay couples. Just rights. And the idea of equal rights is - or should be - an American tradition. Always remember this point.
Happiness - for whom?
As discussed above, in a community allowing same-sex marriage, the two partners in the union experience greater personal happiness. However, when same-sex marriage is banned, those who experience greater happiness are those uninvolved with the relationship, for example, Bible-thumping preachers, right-wing moralists, busybodies, etc. These people gain tremendous personal pleasure from the unhappiness of others.
Is Religious Opposition Somehow More Credible and Salient?
Many Christians attempt to argue that, since their opposition to gay marriage is based on religious grounds, allowing gay marriage or prohibiting discrimination against gays is somehow infringing upon their religious liberty.[20]
The short answer is, "Tough."
The long answer is that describing hatred or discrimination as religiously-motivated is not curative: it does not make it any less evil. Discrimination against women and people of different races has also been justified on the basis of religion... but it is still wrong. Mass murder has been justified on the basis of religion. That doesn't make it right, though. This is a basic underpinning of a pluralist society. Where there are multiple versions of "reality" and "morality," the one that should be used to form laws is the one that doesn't hurt people. That simple.
The legal answer is that, regardless of religion, when a discriminatory action is identified, Congress has the power by the Fourteenth Amendment to eradicate that evil. Further, free exercise does not include hate crimes.[citation needed] And finally, speech against homosexuality - like all hate speech - is protected by the First Amendment, to a degree.[21] So religious freedom is unharmed, so long as does not infringe upon another's freedom. John Stuart Mill would be proud.
Conflict of Laws
Same-sex marriage presents an interesting difficulty in the American federal system. Where some states may allow gay marriage, others may not, and pursuant to the Defense of Marriage Act, states may even refuse to honor the rights that come with a same-sex marriage (such as the right to sue, the right to inherit, etc.). This proposes a problem in three different ways.
- Suppose a couple runs to Massachusetts, gets married, and returns to their home state, which forbids gay marriage. Should the home state nonetheless honor the duly executed marriage from Massachusetts?
- Suppose a couple lives and is married in Massachusetts, but then moves to an intolerant state. Should the new state recognize the marriage?
- Suppose a couple lives in Massachusetts, is married, and travels on a brief vacation to an intolerant state, where for some reason their marriage becomes a legal issue. How should the new state treat the marriage?
Professor Linda Silberman proposes a solution: a same-sex marriage should be evaluated under the law of the domicile of the married couple, not the law where the marriage was solemnified (as was the common law custom).[22] Thus, in situations (2) and (3), the same-sex marriage should be honored, even by a reluctant state. In situation (1), which can best be characterized as an attempt to evade the law of the home state, the marriage should not be honored. This solution best preserves a state's interest in protecting its morality (somehow), but also preserves the rights of the married couple.
This approach presumes that the Defense of Marriage Act - which permits states to completely ignore a same-sex marriage where convenient - will not (or should not) be taken advantage of by states to spitefully nullify legitimate out-of-state same-sex marriages. However, many states (Nevada, Georgia, etc.) have declined Professor Silberman's persuasive analysis.
This issue is extremely important, since marriage creates such real and beneficial legal effects. Under the Defense of Marriage Act, states like Nevada and Georgia can prevent the widow of a gay marriage from receiving anything from his or her partner's estate... for no reason other than intolerance and spitefulness. At a less dramatic level, there are many situations where being "family" provides vital legal rights, such as hospital visitation, approval of care, etc., and the only way for two unrelated people who share their life to be "family" is for them to marry.
See Also
References
- ↑ European family politics in the Middle Ages.
- ↑ Or there being a baby on the way: a "shotgun marriage".
- ↑ It should be noted that Canada has not yet been destroyed by God as an example unto others.
- ↑ The Globe and Mail, on gay marriage referendum.
- ↑ http://www.cnn.com/2007/US/05/10/gay.bishop.reut/
- ↑ In Romer v. Evans, the Supreme Court did address discrimination against homosexuals, and struck it down on equal protection grounds... however, this did not add any new rights to couples, or remove existing barriers. Instead, it merely prevented the state of Colorado from erecting (tee hee) new barriers.
- ↑ Case citations redacted for cases already fully explained in their linked RationalWiki article. Sorry!
- ↑ See more on the case at RationalWiki's article on it.
- ↑ "Dicta" is by-the-way argumentation presented in an opinion, not necessary to the underlying holding or the critical legal issue being resolved. An example would be, in an opinion holding a defendant liable for tort damages, the court discussing a theory of tort recovery not relied upon in the case. Dicta have no precedential value; they are, however, illuminating and can be used to form a persuasive case, if not relied upon as the entirety of that case.
- ↑ Washington v. Glucksberg, 521 U.S. 702 (defining the standard for substantive due process claims, and stating that fundamental rights are due strict scrutiny).
- ↑ Id.
- ↑ 400 Mass. 309 (Marshall, Chief Justice, for the Court).
- ↑ "Prominent" homophobe Andrew Schlafly complains about just that here. Viewers advised to read anything by Schlafly while wearing protective anti-brain-explosion goggles.
- ↑ Although debate goes on. See Wikipedia's coverage of the issue.
- ↑ Forthcoming article from the NYU Review of Law & Social Change: will update upon publication.
- ↑ Forthcoming article from the NYU Review of Law & Social Change: will update upon publication.
- ↑ Goodridge v. Dep’t of Public Health (400 Mass. 309).
- ↑ According to several polls, around 45% of Americans oppose any recognition of gay unions. Around 25% support full marriage rights, and calling it "marriage." 27% support, at least, "civil unions." Thus, a plurality of Americans prefer some sort of civil union.
- ↑ Remember the First Amendment?
- ↑ Conservapedia's Ed Poor takes this approach.]]
- ↑ See, e.g., Gooding v. Wilson (405 U.S. 518) (applying the First Amendment to strike down statutes that prohibit "abusive" language, and protecting such language so long as it does not present a clear and present danger).
- ↑ Silberman, Same-Sex Marriage: Refining the Conflict of Laws Analysis, 153 U. Penn. L. Rev. 2195 (2004-05).