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Difference between revisions of "Same-sex marriage"

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'''Same-sex marriage''' is the union of two individuals of the same sex in a [[marriage|marital relationship]], with the legal incidents and trappings allotted to this union.  Legally defined marriage of [[homosexual]] couples is rare indeed; more common is a "civil union", which includes many of the all-important legal trappings, without the title "marriage", and the religious overtones some think are implied by the word.
<big><big>'''Ewwwwww,''' BUMSEX!</big></big><p>
That's just not right, poo comes from in there.
Since the news media and partisan groups tend to 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.  Let us further acknowledge that this conflation (or lack there of) is precisely the reason for modern US Court rulings about equality of gay citizens if they must have a "separate but equal" union.
==Status updates==
Gay marriage is a contentious issue in the [[United States]], with only five states, [[Massachusetts]],<ref>As of May 17 2004, due to a court decision.  Attempts to override the decisions by ballot initiative were blocked in the state legislature.</ref>, [[Connecticut]]<ref>October 10 2008: "The Connecticut Supreme Court ruled Friday that gay and lesbian couples have the right to get married."[]</ref>, [[Iowa]]<ref>, Court decision will legalize gay marriage after April 23, 2009</ref>, (Iowa??? Yes, Iowa), [[Vermont]]<ref> </ref>, and [[Maine]]<ref></ref> allowing actual marriages, and several others allowing legal unions under various other names which carry the same effect as marriage. 
Such states include [[New Hampshire]], and [[New Jersey]], all of which have [[civil union]]s, which give all the benefits of marriage without the word "marriage." Oregon (and California, before the In Re Marriage cases) offers domestic partnerships that give all the benefits of marriage as well. [[Washington]], [[Maine]], and [[Washington, D.C.]] offer limited benefits through domestic partnerships, and [[Hawaii]] offers an even more limited amount of benefits. Other states have explicitly banned gay marriage, and through various laws (e.g. the [[Defense of Marriage Act]]), at both the federal and state levels, do not recognize any marriages consecrated outside of their jurisdiction, if it violates their own laws or public discretion - [[New Mexico]] is unique in recognizing all foreign marriages. [[Rhode Island]] and [[New York]] have also recognized some "foreign" marriages.  In other states where gay marriage hasn't been banned outright, the issue remains open. 
The issue is often used by American conservative demagogues to attempt to increase voter turnout among those thought to be likely to support [[Republican Party]] candidates - it is one third of the "God, Guns, and Gays" trifecta.
[[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 soon 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>[ The Globe and Mail], on gay marriage referendum.</ref>
Several other countries have legalized gay marriage, including the Netherlands, Belgium, South Africa, Spain, Norway<ref>On June 12 2008, Norway legalized same-sex marriage (effective January 1, 2009).  They also made adoption easier for same-sex couples, and made lesbian couples eligible for state-funded fertility drugs.[]</ref>, and Sweden, with a number of others allowing civil unions to varying degrees. Some other countries, including Germany, require all marriages to receive a civil union in order to gain legal recognition, and a religious marriage ceremony on its own is not legally recognized.
Some churches perform ceremonies joining persons of the same sex in some kind of union; in some of them, such as the [[Unitarian Universalist Church|Unitarian Universalist Church]], these can be explicitly called "marriages" while others, such as the [[Episcopal Church|Episcopal Church]], use language such as "service to give blessings to God for their relationship"<ref></ref>.
==American legal arguments for same-sex marriage==
Please see our [[Fourteenth_Amendment#Basic_Overview|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 discrimination 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 and 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'' don't provide precedent; 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 [ 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 [ 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 [[tradition|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>
==Other arguments for same-sex marriage==
The argument for equality is the most compelling and obvious for allowing same-sex marriage. Most laws in the western world are designed to be inclusive and protective of ''all'' so it makes little sense to deny a group of people the legal protection and support that a legal marriage provides.
One of the definitions of modern marriage<ref>In the past, marriage has mostly been about securing family connections.</ref> states that it must be between two people who ''love'' each other. If two people love each other, it would be outright hypocrisy to deny them marriage on any grounds, especially sexual orientation.
===Basic human rights===
It can be argued that it's a basic human right to marry whoever one wants to, regardless of gender or status, if it increases one's potential. There is no evidence, outside the opinions of [[conservative talk radio|right-wing commentators]] and [[conservapedia|trusworthy]] websites, that a marriage between two women or two men is less productive to society than a heterosexual one. A human right, by definition, extends to ''all'' humans.
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-judgmental 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 [ 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>  Because the word "marriage" is considered inherently better than the word "civil union," allowing for same-sex civil unions would still let opponents of same-sex marriage hold what they consider to be a position of superiority over homosexuals, due to the implication that the government holds heterosexuals in higher regard than homosexuals.<ref></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,<ref>Though homosexual veterans presumably would not be able to fill in a form including their partner in their benefits, because of [[Don't Ask Don't Tell]]</ref> 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.
===It's yucky===
Some people will seriously consider this as a genuine reason for banning gay marriage. An individual being uncomfortable with a subject, however, shouldn't be the basis for a discriminatory law.
The general thinking will be thus: "Seriously, have you ever seen two guys kiss? Unpleasant. And the feelings it stirs up, the twin repulsion and attraction... UNCOMFORTABLE. Clearly, such activities must be banned! Not letting them get married is a good first step."
In a bizarre twist which could be considered irony, people who are squeamish about gay men may well approve of two girls getting it on, especially if there's a cup involved.<ref>This can be proved with ''extremely'' bad statistics; There's a lot of lesbian porn out there, there are lots of homophobes out there. Ergo, the two groups must overlap ''somewhere''.</ref>
===Comparison with interracial marriage===
Some people used to (and some still do) feel that interracial marriage was wrong, and that a black man kissing a white girl, or vice versa, was creepy and uncomfortable.  Simply being uncomfortable with it is not a reason to ban it.  Two people speaking Spanish between themselves in front of you on the bus may make you uncomfortable, but is it really a good idea to say that speaking Spanish (in, say, a predominantly English speaking country) should be illegal?
As laws are founded on objective proof and logical discourse, one person's squeamish reaction to two people of the same sex, different race or different social classes getting close should not and cannot be used as a ''legal'' argument against them marrying.
===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 and there have been cases where anti-gay/homophobic t-shirt slogans were prohibited in schools, but the action was fought on grounds of religious expression.]]</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. This is the essential thinking behind laws such as the [[establishment clause]] or any law that separates church and state.
In the US specifically, every citizen has the right to "life, liberty, and the pursuit of happiness", any such activity that could interfere with those basic rights is prohibited: the whole "''your right to swing your fist ends where my face begins''" idea. 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}} 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 - American and European perspectives==
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.)  One group of people most likely effected by DOMA are children who are safe with two parents in one state, but find themselves orphans in another, should the biological parent die while on vacation, or should the couple move. This proposes a problem in many different ways.
#Suppose a couple runs to Massachusetts or Connecticut, gets married, and returns to their home state, which forbids gay marriage.  Should the home state nonetheless honor the duly executed marriage?
#Suppose a couple lives and is married in a state where it is legal, but then moves to an intolerant state.  Should the new state recognize the marriage?
#Suppose a couple lives and gets married where it is legal, 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?
#A gay couple married in Massachusetts actually tried to get ''divorced'' in [[Rhode Island]], where such a move has been declared illegal.<ref></ref>  You'd think they'd be eager to untie ''that'' knot!
#Federal definition of marriage has always (and necessarily so) allowed the states to individually define marriage, which is then applied across the board to Federal matters.  That is, if one state says a couple is married at 16 years of age, the US government recognizes the marriage for any taxation, immigration or other federal issues.  But, if a different state does not allow marriages until 18, that state's rules are followed for residents in that state.
#Full Faith and Credit becomes problematic if one state can say "I do not recognize your marriage, or your children's rights under that marriage" should you visit our state, move to our state, or just fly over our state and wreck.
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 {{c|quantifying closedmindedness|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.
Apparently, "[[family values]]" have even reached into the Universal Declaration of Human Rights.  Article 16, part 3 says: "The family is the natural and fundamental group unit of society and is entitled to protection by society and the State."<ref>This is right before the "Think of the Children!!!" article.</ref>  Yes, let's protect the family... but what is a "family"?<ref>[[User:Eira|I]] suppose a state gets to define it themselves right?  Like how the USSR was democratic because it allowed all citizens to vote.</ref>
==See also==
* [[Gay rights]]
* [[Lawrence v. Texas]]
* [[Romer v. Evans]]
* [[template:discrimlaw|U.S. Discrimination Law]]
* [[California Proposition 8]]
* [[Moral panic]]
[[Category:Moral panics]]

Revision as of 19:32, 6 May 2009

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