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THE TRUTH ABOUT SAME-SEX MARRIAGE
Millions of people in many countries are entering a new era in which committed same-sex couples are for the first time being granted the legal rights and responsibilities of civil marriage. This has become a very contentious issue in many places, as activists have lined up on both sides to do battle. Unfortunately, said activists on both sides have used overheated rhetoric to hijack an honest debate on the merits of the idea, and especially in the United States, voices of moderation go unheard. In this essay, I will lay out the facts necessary to grasp the concept of same-sex marriage.
The most basic fact to consider is that long-term committed same-sex couples are legally at a disadvantage when it comes to many matters of property rights, inheritance, hospital visitation, state and federal income taxes, pension or Social Security benefits, health coverage, and auto insurance, just to name a few. To a certain extent, same-sex couples can write up contracts and living wills to simulate the arrangements opposite-sex couples are automatically granted, but as you can see from the list of things I named, many of these things are beyond the couple’s control. On top of that, at least one state (Virginia) has outlawed the practice of using contractual agreements to simulate the rights of marriage, though that law will very likely be found unconstitutional if and when it is challenged.
A total of six states (Vermont, Massachusetts, California, Connecticut, New Hampshire, and New Jersey) have taken steps to rectify this injustice, with two more (New York and Rhode Island) taking the partial step of recognizing their gay residents’ Massachusetts and California marriages. In 1999, Vermont created “civil unions,” which grant same-sex couples all of the same legal rights afforded by Vermont law to opposite-sex couples. In 2003, the Massachusetts Supreme Judicial Court ruled 4-3 that the opposite-sex requirement in Massachusetts marriage law was unconstitutional; the SJC ordered that a legal remedy be crafted within six months. No such measure was passed by the legislature, and town clerks were ordered to begin issuing marriage licenses to same-sex couples on May 17, 2004. Couples who were married in Massachusetts will be treated equally with respect to all matters covered in Massachusetts marriage law.
On May 15, 2008, California became the second state to permit full-fledged same-sex marriage, when the state Supreme Court declared California’s opposite-sex requirement for marriage unconstitutional. Marriages began to be performed on June 17, but a proposed constitutional amendment to be voted upon in the November 2008 election threatens those rights. Connecticut, New Hampshire, and New Jersey have legalized civil unions for same-sex couples, fully equivalent to marriage in all matters of taxation and law; Connecticut was the first state to do this without a court order. Note that none of these — Vermont, Connecticut, New Hampshire, or New Jersey civil unions, nor California or Massachusetts marriage licenses — provide the benefits of marriage spelled out in federal law; for example, same-sex couples residing in Massachusetts are able to file their state income tax returns as “married filing jointly,” but doing so on the federal forms will result in a nasty visit from the IRS.
At the same time, many other states and the federal government seem to be moving in the opposite direction. Eleven states, many of them in the South, voted in November 2004 to amend their constitutions to prohibit all legal recognition of same-sex couples; the smallest margin of victory among these amendments was the 58%-42% vote in Oregon. Seven more states passed similar amendment referenda in the November 2006 election cycle, although voters did make Arizona the first state to reject one of these amendments in that same cycle.
As mentioned above, Virginia’s General Assembly passed HB 751 (the “Affirmation of Marriage Act”) in April 2004; this law not only prohibited same-sex unions in Virginia and recognition of same from elsewhere, but also took an unprecedented (and frankly unconstitutional) step of nullifying and voiding any contracts between two persons of the same sex that would seek to approximate the legal rights of marriage. Same-sex Virginia couples’ wills that leave property to the surviving partner can now be challenged by family members that may have refused to speak to the deceased for 50 years or more; and perhaps most disturbingly, if one member of an out-of-state couple visiting Virginia suffers an incapacitating injury or illness whilst in the Commonwealth, the other partner will be denied hospital visitation rights and will not be allowed to consent to any course of treatment!
The Federal Marriage Amendment was introduced into Congress by Rep. Marilyn Musgrave (R-Colorado) in 2003. It was during the 2004 portion of the 108th Congressional session that this amendment came to a vote. Fortunately, the bill failed to even attain a majority vote in the Senate; while the House of Representatives did vote in favor of it, the margin was well short of the required two-thirds vote. (Note: Since the original writing of this essay, the FMA came up again in Congress in 2006, meeting almost the same fate as in 2004.) The vast majority of the FMA’s most rabid supporters have been Republicans, such as Sen. Wayne Allard (Colorado), former Sen. Rick Santorum (Pennsylvania), and the aforementioned Musgrave. Supporters claim that a federal constitutional amendment is needed to prevent court challenges of existing marriage laws, and keep arguing that “activist liberal judges” are “redefining the ‘institution of marriage’” by ruling in favor of extending equal rights to gay and lesbian citizens.
Among these existing laws is the so-called “Defense of Marriage Act” of 1996, which was signed into law by then-President Bill Clinton. DoMA spells out over one thousand federal legal rights and responsibilities of marriage, and contravenes the Fourteenth Amendment to the U.S. Constitution by explicitly reserving said rights for opposite-sex couples. Fearing that DoMA and its 45 state-level equivalents will be struck down by courts, gay-hating conservatives at all levels of government have sought to place the marriage issue beyond the jurisdiction of said courts by using constitutions to bypass an honest debate. As I mentioned above, they were successful in 11 states in the 2004 election cycle and seven more in 2006, and in total have inserted legally-sanctioned homophobia into 26 state constitutions; at the same time, they have failed twice on the federal level, and some other states’ legislatures failed to approve proposed amendments.
While the actions of these gay-haters are unconscionable, immoral, and un-American, one must give them credit for being astute enough to recognize that at their core, all state and federal DoMAs violate the U.S. Constitution. The Fourteenth Amendment, ratified in 1865 in the wake of the Civil War, states that all U.S. citizens are entitled to the equal protection of the law. In many tangible ways, marriages provide legal protection to couples; married couples can realize significant financial advantages with respect to their federal and state tax burdens, their life insurance and auto insurance rates, their health-care costs, and their payouts from federal entitlement programs such as Social Security and Medicare. The Fourteenth Amendment didn’t say that gay and lesbian Americans are unworthy of these legal protections; in fact, it stated explicitly that they are entitled to receive such protections. Any law, such as the state and federal DoMAs, that states otherwise does not pass the test of the Fourteenth Amendment, and therefore must be struck down by the relevant court.
Additionally, the push to prohibit same-sex legal marriage goes against the spirit, if not the letter, of the First Amendment. Among many other things, the First Amendment states that “Congress shall make no laws respecting an establishment of religion, nor prohibiting the free exercise thereof.” While hypocritical, deluded so-called “Christians” can claim that allowing same-sex legal marriage “prohibits” the free exercise of their un-Christian hatred, they ignore the first half of that statement — no law is permitted to be made that enforces their beliefs on everybody else. The vast majority of arguments against same-sex legal marriage are of a religious nature, and as such, they are legally and constitutionally invalid.
While I’m on the topic of religion, I’m going to pause the “flow” of the rest of this essay to make a critical fact crystal-clear. In no case are same-sex couples attempting to force any unwilling religious institutions to sanction, bless, recognize, or solemnize their relationships. Religious institutions will still retain every right to refuse to perform ceremonies for same-sex couples that would run counter to their beliefs. Many people incorrectly conjure up the image of two men taking vows in front of a priest (and those who hate gays openly encourage such thinking, because it adds to the perceived shock value), but this is absolutely untrue. The entire effort to secure marriage rights for same-sex couples is aimed at obtaining the same legal and civil (i.e., law-based) benefits for same-sex couples as for opposite-sex couples.
(Note: As if to prove my point, the Supreme Court of Canada handed down an advisory opinion in December 2004 that agrees completely with what I have just said. The Court ruled that while Parliament maintains jurisdiction over civil marriage, and is free to recognize same-sex relationships regardless of Canadians’ religious objections, religious institutions are free to either perform or refuse to perform ceremonies as they see fit. This opinion paved the way for Parliament’s July 2005 passage of a full marriage equality bill.)
As I said above, many people who oppose same-sex legal marriage base their opposition on religious or other traditional grounds. Some people believe that homosexuality is a “sinful,” chosen “lifestyle” (a view which is thoroughly proven wrong in my essay “How to Out-Argue a Fundamentalist”) of which God disapproves; others claim that marriage has existed in its current form for thousands of years, and that time has “proven” that marriage ought to be reserved for opposite-sex couples. While such objections are valid within the religious sphere (that is to say, everybody is entitled to believe whatever they choose to believe), 228-plus years of American history would argue otherwise.
For example, the right to vote was held only by land-owning white males in 1787; but later constitutional changes afforded this basic right to penniless white men, then black men, and eventually women. More to the point, the U.S. Supreme Court’s 1965 Loving v. Virginia decision struck down many states’ prohibitions of interracial marriage; it should be quite telling that 1960s conservatives cited very similar arguments (“God intended the races to remain separate” or “It’s this country’s tradition to oppress black people”) to the ones being used today against the extension of legal marriage rights to same-sex couples. If such arguments were shown to be constitutionally invalid in 1965, what makes people think that they are valid today?
Some people raise objections to same-sex legal marriage on public-health grounds; they cite highly suspicious (if not totally false) and controversial “research” that claims to show that the greater public health is damaged by same-sex relationships. For example, some people claim that extreme promiscuity is part of the nature of homosexuality, and that gay men, in particular, are just dying left and right from HIV/AIDS. (These “studies” actually consisted of nothing more than reading the obituaries in local gay-run newsletters and informational magazines during the height of the AIDS epidemic in the 1980s, and extrapolating from that tiny amount of data to reach the conclusion that almost all gay men will eventually die from AIDS.) They claim that allowing same-sex marriage will impose a burden upon corporations by forcing them to provide coverage for same-sex partners; honestly, many large companies already provide such benefits on their own, unless doing so would be illegal in their state. Alternatively, some people claim that extending the legal status of marriage to same-sex couples harms the mental health of children by denying them a mother and a father, or by “causing” them to become gay as adults; most absurdly, these people also claim that children will be exposed to up to 20 partners if custody is granted to a gay parent!
All of these arguments are ridiculous and easily disprovable. Single parents and some trail-blazing gay couples with children are proving that love, not two parents of opposite genders, is the very definition of family (and “families” based solely upon physical intimacy between a man and a woman, without a basis in true love, keep falling apart). As I proved in my essay “How to Out-Argue a Fundamentalist”, homosexuality is not a choice. No child is going to choose to be gay just because he/she had two parents of the same sex; and same-sex parents, already knowing about the condemnation that a hateful, bigoted society directs at gays and lesbians, would never wish a homosexual orientation upon the child that they so dearly love. Finally, the promiscuity argument relies on circular logic; people argue that gay men, specifically, are more promiscuous because they can’t legally marry, but that whole argument rests on the very fact that gay people cannot marry. If anything, allowing same-sex marriage would help to foster a stronger culture of monogamy and long-term, “‘til death do us part” commitment among gays and lesbians; this renders the promiscuity argument moot.
There are some people who bring up absolutely idiotic objections to the concept of same-sex legal marriage. All of these are based upon the “slippery slope” type of logical fallacy. That is to say, such people claim that allowing same-sex couples to marry will inevitably have to lead to the legal recognition of polygamous or incestuous relationships, or pedophilia or bestiality. These people are blind to one simple fact of American law: polygamy, incest, pedophilia, and bestiality are activities that are explicitly prohibited for all persons. On the other hand, engaging in same-gender sexual activities is perfectly legal, at least since the U.S. Supreme Court’s 2003 Lawrence v. Texas decision (and even prior to that, same-gender sex was already not criminally punishable in 37 states) — and it would be impossible to criminalize the mere state of being homosexual (i.e., the natural attraction to the same sex).
In light of legal precedent, and also these two truths, even a majority’s moral disapproval of homosexuality or same-sex marriage is not a proper constitutional reason to deny the benefits of marriage to same-sex couples. At the same time, there still would exist valid constitutional reasons to deny marriage rights to groups involving close relatives, children, animals, or more than two persons, because laws prohibiting sexual acts among these groups exist in the laws of all 50 states and the federal government.
In any case, marriage in the legal sense is not about having sex, or having government sanction to do so; it is about obtaining tangible legal and financial benefits, and it is unconstitutional to grant those benefits to certain adult couples while denying them to other adult couples. Even if the possibility of legal challenges from polygamists, et al. were an issue, a simple re-wording of marriage laws would take care of that problem: “Marriage is the union of two non-consanguinous adults, to the exclusion of all other unions.” (That is to say, marriages will only be recognized as valid if there are exactly two parties, both parties are legal adults in their state of residence, and the parties are not closely related to each other; the word “consanguinous” derives from Latin roots that mean “common blood.”)
Finally, some people use arguments that may seem compelling on the surface, but are really meaningless to the issue of same-sex marriage. They say that marriage ought to be reserved for opposite-sex couples because it is “a framework for having and raising children.” This argument is false for several reasons. Heterosexual intercourse (which in some cases may involve opposite-sex marriage) is actually the necessary framework for procreation; millions of teenagers and out-of-wedlock men and women prove this every year. (Quite honestly, gay couples don’t even need to have one partner “hold his/her nose,” figuratively speaking, by engaging in heterosexual intercourse once; other methods such as surrogate-mother arrangements — for gay male couples, at least — and in vitro fertilization can be employed.) Once the egg is fertilized and conception has occurred, the necessity for both genders’ involvement in the process is gone.
From birth forward, a loving, nurturing environment in which to grow is far more important to a child’s development than anything else; countless studies have come to this conclusion. Same-sex couples are no less capable of providing the most basic needs of children — it should be obvious that the ability to properly love and nurture a child is an emotional and psychological gift that does not disappear just because a person is attracted to his/her own gender. If we were to assume for a minute that the “opposite-sex only, because it’s the right way to raise children” argument were valid, it would by extension condone any form of child abuse, so long as one man and one woman were the persons committing such atrocities. (“Hey, it’s more important that the child have a mother and a father than that he actually be loved and not beaten!”) On top of that, holding this argument to be valid could easily be construed to authorize ripping children out of healthy, loving single-parent homes, simply for lack of both a man and a woman.
Of course, the people who hate gays and lesbians couch their evil hatred in much more innocuous-looking rhetoric; many of the proposals they have made advance such positive-sounding goals as “the protection of marriage,” “the preservation of the family,” and the aforementioned “Defense of Marriage Act.” If any defense of marriage or preservation of families is needed in today’s American society, it is most desperately needed within the heterosexual community. A true “defense” or “protection” of marriage would involve stiffening of divorce laws; currently, over 50% of opposite-sex marriages end in divorce within seven years. All too frequently, children are involved in the process; the separation of the two parents they love is painful enough to them, even without an acrimonious custody battle and “parent-swapping” arrangement (e.g., every other weekend with the father, the rest of the time with the mother) that invariably follows. This is destructive to families — in fact, more than half of opposite-sex “families” are destroyed. There is a name for this type of argument (i.e., arguing that denying legal marriage rights to same-sex couples “protects” marriage): it’s called hypocrisy. These people are so blinded by their rabid hatred for gays and lesbians that they fail to see the sorry state that so many of their beloved opposite-sex marriages are in.
There are many people — a two-thirds majority of Americans, in fact, according to a recent poll — who support the extension of the legal rights of marriage to same-sex couples, but take issue with the application of the word “marriage” to such a union. This is an understandable position; the word “marriage” is fraught with at least three millenia of cultural significance, and during this time, “marriage” has been understood to mean a relationship consisting of one man and one woman. Even the staunchest gay-rights advocates must understand that it will be nearly impossible to dispose of this long-lasting baggage associated with the word “marriage.”
My personal position, which I feel is the most appropriate one for patriotic Americans to take, is that the name of a same-sex legal union does not matter as long as it is totally equivalent to opposite-sex marriage in the legal sense. Gay-rights advocates may scream, “civil unions are less than marriage,” but this is only true if the current definitions of “civil union” (Vermont’s legal status that grants state, but not federal, rights of marriage) and “marriage” (the legal status in federal and state laws that grants rights to opposite-sex couples) are used. If some kind of a “federal civil union” concept is crafted that provides for all of the same federal legal rights, responsibilities, and benefits of opposite-sex marriage to be extended to same-sex couples, and requires the private sector to treat same-sex unions equally for employee-benefit purposes, that will be completely consistent with the Constitution while still respecting the cultural mores of many Americans.
Should the United States continue along its current path of official non-recognition of same-sex marriage, the nation that has long billed itself as the great “beacon of freedom” will fall farther and farther behind the rest of the civilized world. As of July 2005, Belgium, the Netherlands, Spain, our northern neighbor Canada, and even the formerly apartheid nation of South Africa, have laws allowing for the full recognition of same-sex marriage. There are several other countries in western and northern Europe, including all of the Scandinavian countries, Germany, Portugal, Hungary, France, and the United Kingdom, that either already extend some limited rights similar to marriage to same-sex couples, or are considering doing so. A nation that purports to be so dedicated to democracy and freedom in Iraq, an expanse of desert halfway around the world, surely ought to show similar dedication to the pursuit of full equality and freedom back home.
While the topic of same-sex marriage is an emotionally charged one for many people, it is an issue whose resolution is long overdue. The United States has always overcome the forces that would discriminate against unpopular minority classes, and in the end, this situation will be no different. To paraphrase the great Dr. Martin Luther King, Jr., I have a dream that one day I and any children I might have/adopt/etc. will live in a world where people are judged not on whom they love (sexually or otherwise) in private, but on how frequently and completely they demonstrate compassion, respect, tolerance, and care for their fellow human beings in public. If that day can ever be reached, the world will be a far better place.
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