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Same-sex marriage
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Same-sex marriage and gay marriage are terms for a legally or socially recognized marriage between two people of the same sex.
While state-sanctioned same-sex marriage is a relatively new phenomenon in the modern world, same-sex unions have been documented throughout human history. The first country to legalize same-sex marriage was the Netherlands, effective in 2001. Since then, six other countries have followed suit.
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Encyclopedia
Same-sex marriage and gay marriage are terms for a legally or socially recognized marriage between two people of the same sex.
While state-sanctioned same-sex marriage is a relatively new phenomenon in the modern world, same-sex unions have been documented throughout human history. The first country to legalize same-sex marriage was the Netherlands, effective in 2001. Since then, six other countries have followed suit. Proponents of same-sex marriage regard it as a human right to have the benefits of marriage regardless of sexual orientation. Those who oppose same-sex marriage often base their opposition on tradition, religious grounds, parenting concerns, or concerns about unintended consequences of same-sex marriage. Civil unions between same-sex couples are recognized in sixteen countries.
Debates over terminology
Some proponents of same-sex marriage use the term "equal marriage" to stress that they seek equality as opposed to special rights. Some opponents argue that equating same-sex and opposite-sex marriage changes the meaning of marriage and its traditions. Some frequently use the term "homosexual marriage".
Alan Dershowitz and others have suggested reserving the word "marriage" for religious contexts as part of privatizing marriage, and in civil and legal contexts using a uniform concept of civil unions, in part to strengthen the separation between church and state." Conservative critics claim that the conflation of marriage with contractual agreements is itself a threat to marriage.
Use of scare quotes in print and online media
Some publications that oppose same-sex marriage adopt an editorial style policy of placing the word marriage in scare quotes ("marriage") when it is used in reference to same-sex couples. In the United States, the mainstream press has generally abandoned this practice. Some online publications, such as WorldNetDaily and Baptist Press, still follow the practice. Cliff Kincaid argues for use of scare quotes on the grounds that marriage is a legal status denied same-sex couples by most state governments. Same-sex marriage supporters argue that the use of scare quotes is an editorialization that implies illegitimacy.
Associated Press style recommends the usages marriage for gays and lesbians or in space-limited headlines gay marriage with no hyphen and no scare quotes. AP warns that the construct gay marriage can imply that marriage licenses offered to gay and lesbian couples are somehow legally different, as such it should be avoided as much as possible in favor of marriage for gays and lesbians.
History
Although state-recognized same-sex marriage is a relatively new phenomenon in Western society, there is a long history of same-sex unions around the world. Various types of same-sex unions have existed, ranging from informal, unsanctioned relationships to highly ritualized unions.
In the southern Chinese province of Fujian, through the Ming dynasty period, females would bind themselves in contracts to younger females in elaborate ceremonies. Males also entered similar arrangements. In Japan, Shudo (?? shudo), the Japanese tradition of age-structured homosexuality was prevalent in samurai society from the medieval period until the end of the 19th century. Shudo is analogous to the ancient Greek tradition of pederasty (paiderastia). A law in the Theodosian Code (C. Th. 9.7.3) issued in 342 CE prohibited same-sex marriage in ancient Rome, but the exact intent of the law and its relation to social practice is unclear, as only a few examples of same-sex marriage in that culture exist. Suetonius mentioned (in the context of Nero's vices) that Nero married a slave boy, and also a male friend; Martial also mentions same sex marriages taking place.
Current status
The Netherlands was the first modern nation to legalize same-sex marriage in 2001. Same-sex marriages are also legal in Belgium, Spain, Canada, South Africa, and Norway. In Nepal, their authorization has been judicially mandated but not yet legislated. In the United States, same-sex couples can marry in Massachusetts and Connecticut, but their unions are not recognized nationally. From June 2008 until November 2008, California also authorized same-sex marriages, until voters enacted Proposition 8, which banned same-sex marriage.
In 1996, the United States Congress passed the Defense of Marriage Act (DOMA) defining marriage as a union between a man and a woman amongst other stipulations. As of November 2008, twenty-nine states had passed constitutional amendments explicitly barring the recognition of same-sex marriage, nineteen of which prohibit the legal recognition of any same-sex union. Nineteen additional states, and the territory of Puerto Rico have legal statutes that define "marriage" as a union of two persons of the opposite-sex. President Barack Obama's political platform includes full repeal of the DOMA.
The U.S. states of Vermont, New Jersey and New Hampshire offer civil unions. Also, Oregon has domestic partnership laws that grant some of the rights and responsibilities of marriage. Maine, Washington, Maryland, and the District of Columbia grant certain limited benefits through domestic partnerships, and Hawaii has reciprocal beneficiary laws.
At the federal level, Australia bans recognition of same-sex marriage, but the current Australian Labor Party government favors synchronized state and territory registered partnership legislation (as in Tasmania). The Australian Capital Territory favors the introduction of civil unions with official ceremonies.
A bill proposing the repeal of same-sex marriage in Canada failed at its first reading in 2006, hence same sex marriage is recognized throughout Canada.
New Zealand's Parliament rejected a bill that would have prohibited same-sex marriage in New Zealand in December 2005. However, New Zealand's Marriage Act 1955 still only recognizes marriage rights for opposite-sex couples; New Zealand's marriage laws consider transsexuals who have undergone reassignment surgery as having changed sex for these purposes, following Family Court and High Court of New Zealand decisions in 1995).
Israel's High Court of Justice ruled to recognize same-sex marriages performed in other countries, although it is still illegal to perform them within the country. A bill was raised in Knesset to rescind the Israeli High Court's ruling, but the Knesset has not advanced the bill since December 2006.
A 30 member parliamentary commission of the French National Assembly published a 453 page Report on the Family and the rights of Children, which rejected same-sex marriage. In the report, the commission says that “the child represents the future of society.” The commission asks legislators to make sure that “children, confronted with mutations in family models, be fully taken into account and not suffer from situations imposed upon them by adults.” It adds: “The interest of the child must take precedence over adults’ exercise of their freedom (…) including with regards to parents’ lifestyle choices.”
The Netherlands, Belgium, Canada, Spain and Norway are the only countries where the legal status of same-sex marriage is exactly the same as that of opposite-sex marriage, though South Africa is due to fully harmonize its marriage laws. Nepal's highest court, in November 2008, issued final judgment on matters related to LGBT rights. Based on the court recommendation the government announced its intention to introduce a same-sex marriage bill.
Civil unions and partnerships
The first same-sex union in modern history with government recognition was obtained in Denmark in 1989.
Civil unions, civil partnership, domestic partnership, unregistered partnership/unregistered co-habitation or registered partnerships offer varying amounts of the benefits of marriage and are available in: Andorra, Australia, Colombia, Croatia, Czech Republic, Denmark, Finland, France, Germany, Hungary, Iceland, Israel, Luxembourg, New Zealand, Portugal, Slovenia, Sweden, Switzerland, the United Kingdom and Uruguay. They are also available in some parts of Argentina, Brazil (Rio Grande do Sul), Mexico (Federal District and Coahuila), the U.S. states of California, Hawaii, Maine, Maryland, New Hampshire, New Jersey, Oregon, Vermont, Washington, and the District of Columbia (Washington, D.C.).
In the United Kingdom, civil partnerships were introduced in 2006. The law gives civil partners identical legal status to a marriage, and partners gain all the same benefits and associated legal rights; ranging from tax exemptions and joint property rights, to next-of-kin status and shared parenting responsibilities. Partnership ceremonies are performed by a marriage registrar in exactly the same manner as a secular civil marriage. In the first year 16,100 ceremonies took place.
Civil unions in New Zealand are identical to British civil partnerships in their association with equivalent spousal rights and responsibilities to full-fledged opposite-sex marriage.
In Australia, Commonwealth law prohibits the recognition of same-sex marriage. However, all states and territories provide a range of rights to same-sex cohabiting couples, equal to those afforded to heterosexual de facto couples. These rights are gained without registration. Furthermore, formal domestic partnership registries exist in Tasmania, Victoria and the Australian Capital Territory. Since November 2008, same-sex couples are recognised as de facto partners in a wide range of Commonwealth legislation, including superannuation, social security, health care and taxation. In 2007, Grace Abrams and Fiona Power became Australia's first legally recognised same sex married couple after Grace Abrams had gender modification surgery and was later officially granted a passport with female status.
A registered partnership in Scandinavia is nearly equal to marriage, including legal adoption rights in Sweden, Norway and Iceland. These partnership laws are short laws that state that wherever the word "marriage" appears in the country's law will now also be construed to mean "registered partnership" and wherever the word "spouse" appears will now also be construed to mean "registered partner" - thereby transferring the body of marriage laws onto same-sex couples in registered partnerships.
In some countries with legal recognition the actual benefits are minimal. Many people consider civil unions, even those which grant equal rights, inadequate, as they create a separate status, and think they should be replaced by gender-neutral marriage.
International organizations
The terms of employment of the staff of international organizations (not businesses) are not, in most cases, governed by the laws of the country in which their offices are located. Agreements with the host country safeguard these organizations' impartiality with regard to the host and member countries. Hiring and firing practices, working hours and environment, holiday time, pension plans, health insurance and life insurance, salaries, expatriation benefits and general conditions of employment are managed according to rules and regulations proper to each organization. The independence of these organizations gives them the freedom to implement human resource policies which are even contrary to the laws of their host and member countries. A person who is otherwise eligible for employment in Belgium may not become an employee of NATO unless he or she is a citizen of a NATO member state. The World Health Organization has recently banned the recruitment of cigarette smokers. Agencies of the United Nations coordinate some human resource policies amongst themselves.
Despite their relative independence, few organizations currently recognize same-sex partnerships without condition. The Organization for Economic Co-operation and Development (OECD) and the agencies of the United Nations voluntarily discriminate between opposite-sex marriages and same-sex marriages, as well as discriminating between employees on the basis of nationality. These organizations recognize same-sex marriages only if the country of citizenship of the employees in question recognizes the marriage. In some cases, these organizations do offer a limited selection of the benefits normally provided to opposite-sex married couples to de facto partners or domestic partners of their staff, but even individuals who have entered into an opposite-sex civil union in their home country are not guaranteed full recognition of this union in all organizations. However, the World Bank does recognize domestic partners.
Transgender and intersex persons
When sex is defined legally, it may be defined by any one of several criteria: the XY sex-determination system, the type of gonads, or the type of external sexual features. Consequently, both transsexuals and intersexed individuals may be legally categorized into confusing gray areas, and could be prohibited from marrying partners of the "opposite" sex or permitted to marry partners of the "same" sex due to arbitrary legal distinctions. This could result in long-term marriages, as well as recent same-sex marriages, being overturned.
The problems of defining gender by the existence/non-existence of gonads or certain sexual features is complicated by the existence of surgical methods to alter these features. These complications are probably more likely than one would think at first glance; according to the highest estimates (Fausto-Sterling et al., 2000) perhaps 1 percent of live births exhibit some degree of sexual ambiguity, and between 0.1% and 0.2% of live births are ambiguous enough to become the subject of specialist medical attention, including sometimes involuntary surgery to address their sexual ambiguity.
In any legal jurisdiction where marriages are defined without distinction of a requirement of a male and female, these complications do not occur. In addition, some legal jurisdictions may recognize a legal and official change of gender, which would allow a transsexual to be legally married in accordance his or her adopted gender identity.
In the United Kingdom, recent legislation (Gender Recognition Act 2004) allows a person who has lived in their chosen gender for at least two years to receive a gender recognition certificate officially recognizing their new gender. Because in the UK marriage is for mixed-sex couples and civil partnership is for same-sex couples, a person must dissolve his/her marriage or civil partnership before obtaining a gender recognition certificate. Such persons are then free to enter or re-enter civil partnerships or marriages in accordance with their newly recognized gender identity.
In the United States, transsexual and intersexual marriages typically run into the complications detailed above. As definitions and enforcement of marriage are defined by the states, these complications vary from state to state.
Controversy
While few societies have recognized same-sex unions as marriage, the historical and anthropological record reveals a large range of attitudes towards same-sex unions ranging from sympathetic toleration to indifference to prohibition. Organizations opposed to gay marriage have argued that same-sex marriages are not marriages, that legalization of same-sex marriage will open the door for the legalization of polygamy, that legalization of same-sex marriage would erode religious freedoms, and that same-sex marriage deprives children of either a mother or a father. Other advocates of traditional marriage hold that same-sex marriage is unnatural and that it encourages unhealthy behavior.
Some opponents of same-sex marriage also argue that the alleged historical precedence of their definition of marriage - its enshrinement in "tradition" - justifies the need to protect it from the changes sought by advocates of same-sex marriage. Other opponents contend that the legalization of same-sex marriage, by altering the traditional definition of marriage, would harm families and society as a whole.
Some supporters of same-sex marriage take the view that the government should have no role in regulating personal relationships, while others argue that same-sex marriage would provide social benefits to same-sex couples. A 2004 Statement by the American Anthropological Association states that there is no evidence that society needs to maintain "marriage as an exclusively heterosexual institution", and, further, that same-sex unions can "contribute to stable and humane societies." Jonathan Rauch has argued that marriage is good for all men, whether homosexual or heterosexual, because engaging in its social roles reduces men's aggression and promiscuity. After reviewing current psychological and other social science studies on same-sex marriage in comparison to heterosexual marriage, Gregory M. Herek claims that the data indicate that same-sex and heterosexual relationships do not differ in their essential psychosocial dimensions; that a parent's sexual orientation is unrelated to her or his ability to provide a healthy and nurturing family environment; and that marriage bestows substantial psychological, social, and health benefits. Herek concludes that same-sex couples and their children are likely to benefit in numerous ways from legal recognition of their families, and providing such recognition through marriage will bestow greater benefit than civil unions or domestic partnerships.
The debate regarding same-sex marriage includes debate based upon social viewpoints as well as debate based on majority rules (or will of the people), religious convictions, economic arguments, health-related concerns, and a variety of other issues.
Majority Rules
A "majority rules" position is that gay marriage should only be deemed a right if it is accepted by a majority of voters through a general election ballot. A civil-rights view, in contrast, holds that the judiciary should decide on the legality of same-sex marriage.
The California Supreme Court held in May 2008 that the state's opposite-sex definition of marriage to be unconstitutional, reasoning that certain fundamental rights should be placed "beyond the reach" of popular votes and elected officials. The court's decision was later overturned in part by the passage of Proposition 8 in November 2008; however, the proposition's constitutionality is under judicial review, as of December 2008. California's Attorney General, Jerry Brown, has urged the California Supreme Court to overturn Proposition 8 as unconstitutional due to the "fundamental liberty interest" cited in the California Constitution.
Religious arguments
Arguments both in opposition to and in favor of same-sex marriage are often made on religious grounds and/or formulated in terms of religious doctrine.
Many objections to same-sex marriage are based upon religious grounds. Religious opponents of same-sex marriage sometimes claim that extending marriage rights to same-sex couples could undercut the conventional purpose of marriage, or would be contrary to God's will. Some religious advocates of "traditional marriage" contend that to call same-sex relationships "marriages" is a misnomer, because marriage necessarily involves the uniting of two members of the opposite sex. Other religious opponents argue that same-sex marriage would encourage individuals to act upon homosexual urges, rather than seeking help to overcome same-sex attraction.
Within the Judeo-Christian tradition, religious objections to same-sex marriage are often based upon biblical passages at Genesis 19:5 Leviticus 18:22, and Leviticus 20:13. Within the Christian tradition, such objections are often based on Romans 1, I Corinthians 6:8-10, and Jude 1:7. Religious organizations that oppose same-sex marriage include the Church of God in Christ,, The Church of Jesus Christ of Latter-day Saints the Conservative Congregational Christian Conference, the Conservative Mennonite Conference, the
Convocation of Anglicans in North America, the
Hutterite Brethren, the Orthodox Church in America, the Seventh-day Adventist Church, the Roman Catholic Church, the Southern Baptist Convention, and the
Union of Orthodox Jewish Congregations of America (OU).
Some moderate and liberal Christians such as the Metropolitan Community Church, the United Church of Christ and progressive congregations within the mainline denominations believe that biblical texts refer only to specific sex acts and idolatrous worship lacking relevance to contemporary same-sex relationships. Some Christians support religious and legal recognition of same-sex marriage based on a moral commitment to equality, or a belief that "human sexual orientations, whether heterosexual or homosexual, are a gift from God." Several Christian denominations support same-sex marriage and perform same-sex weddings. The three largest are Unitarian Universalists, the United Church of Canada and the United Church of Christ (UCC).
Judaism, like Christianity, reflects differing views between conservative and liberal adherents. Orthodox Judaism maintains the traditional Jewish bans on both sexual acts and marriage amongst members of the same sex. Some Conservative Jews reject recognition of same-sex unions as marriage, but permit celebration of commitment ceremonies. Members of Reform Judaism support the inclusion of same-sex unions within the definition of marriage. The Jewish Reconstructionist Federation leaves the choice to individual rabbis.
Due to the ambivalent language about homosexuality in Buddhist teachings, there has been no official stance put forth regarding the issue of same-sex marriage.
There are both conservative and liberal views about homosexuality and same-sex marriage in Hinduism, similar to many other religions.
In an American context, supporters of same-sex marriage such as Americans United for Separation of Church and State argue that by defining marriage as an opposite-sex institution, the state infringes upon the constitutional right to freedom of religion.
Arguments concerning children and the family
Some opponents of same-sex marriage argue that a child should be raised by only a father and a mother. The Church of Jesus Christ of Latter-day Saints argues for traditional gender roles in parenting, claiming they are foundational to parenting. Based on research showing that, on average, children do best when raised by their biological parents in a low-conflict marriage, some argue that legal marriage is a way of encouraging monogamy and commitment by those who may create children through their sexual coupling. One prominent supporter of this viewpoint, syndicated columnist Maggie Gallagher, argues that "babies are most likely to grow to functioning adulthood when they have the care and attention of both their mother and their father." Focus on the Family points to academic studies which state that children raised with both parents, as opposed to children raised by single mothers, increase children's cognitive and verbal skills, academic performance, involvement in or avoidance of high-risk behaviors and crime, and emotional and psychological health. However, another study has held that being without a resident father from infancy does not seem to have negative consequences for children.
Research has found no major differences in parenting or child development between families headed by two mothers and other fatherless families. However research has also shown children raised by single mothers or children raised by two mothers perceived themselves to be less cognitively and physically competent than their peers from father-present families. Children without fathers had more interactions, severe disputes and depended more on their mothers. Sons showed more feminine but no less masculine characteristics of gender role behavior. Compared with young adults who had single mothers, men and women raised by two mothers were slightly more likely to consider the possibility of having a same-sex partner, and more of them had been involved in at least a brief same-sex relationship, but there was no statistical difference in sexual identity of children compared to children of opposite-sex parents.
A number of health and child-welfare organizations "support the parenting of children by lesbians and gay men, and condemn attempts to restrict competent, caring adults from serving as foster and/or adoptive parents." Such organizations include the Child Welfare League of America, North American Council on Adoptable Children, American Academy of Pediatrics, American Psychiatric Association, American Psychological Association, and the National Association of Social Workers. On July 28, 2004, the American Psychological Association's Council of Representatives adopted a resolution supporting legalization of same-sex civil marriages and opposes discrimination against lesbian and gay parents.
Noted Harvard political philosopher and legal scholar John Rawls supports gay marriage and does not believe that it would undermine the welfare of children.
Same-sex marriage opponents argue that mainstream health and mental health organizations have, in many cases, taken public positions on homosexuality and same-sex marriage that are based on their own social and political views rather than the available science.
Arguments concerning divorce rates
Internationally, the most comprehensive study to date on the effect of same-sex marriage / partnership on heterosexual marriage and divorce rates was conducted looking at over 15 years of data from the Scandinavian countries. The study by researcher Darren Spedale found that 15 years after Denmark had granted same-sex couples the rights of marriage, rates of heterosexual marriage in those countries had gone up, and rates of heterosexual divorce had gone down -- contradicting the concept that same-sex marriage would have a negative effect on traditional marriage.
However, a study on short-term same-sex marriages/partnerships in Norway and Sweden found that divorce risks are higher in same-sex marriages than in opposite-sex marriages, and that unions of lesbians are considerably less stable, or more dynamic, than unions of gay men. The authors cited that this may be due to same-sex couples' "non-
involvement in joint parenthood," "lower exposure to normative pressure about the necessity of life-long unions," and differing motivations for getting married. Another study regarding Swedish same-sex couples found that same-sex unions -- even when legally recognized -- tended to be of shorter duration than opposite-sex unions.
A multi-method, multi-informant comparison of community samples of committed gay male and lesbian (30 participants each) couples with both committed (50 young engaged and 40 older married participants) and non-committed (109 exclusively dating) heterosexual pairs was conducted in 2008. Specifically, in this study the quality of same- and opposite-sex relationships was examined at multiple levels of analysis via self-reports and partner reports, laboratory observations, and measures of physiological reactivity during dyadic interactions. Additionally, individuals in same-sex, engaged, and marital relationships were compared with one another on adult attachment security as assessed through the coherence of participants' narratives about their childhood experiences. Results indicated that individuals in committed same-sex relationships were generally not distinguishable from their committed heterosexual counterparts.
Reproduction
Those who advocate that marriage should be defined exclusively as the union of one man and one woman argue that opposite-sex couples provide the procreative foundation that is the chief building block of civilization. Social conservatives and others may see marriage not as a legal construct of the state, but as a naturally occurring "pre-political institution" that the state must recognize just as the government recognizes employment relationships; one such conservative voice reasons that "government does not create marriage any more than government creates jobs." They argue that the definition proposed by same-sex marriage advocates changes the social importance of marriage from its natural function of reproduction into a mere legality or freedom to have sex.
In the United States, a common argument in various states' courts against allowing same-sex marriage has been the use of legal marriage to foster the state's interest in human reproduction. In Anderson et al. v. King County, a case that challenged Washington's Defense of Marriage Act, the Washington Supreme Court ruled 5 to 4 that the law was constitutional. The majority concluded that the legislature was entitled to believe that only allowing opposite-sex marriage "furthers procreation." The Maryland Supreme Court similarly ruled that it was permissible to confer the benefits of marriage only on opposite-sex couples because of their possibility of procreation."
Some proponents of same-sex marriage argue that because the law does not prohibit marriage between sterile heterosexual couples or to women past menopause, the procreation argument cannot reasonably be used against same-sex marriage.
The California Supreme Court ruled on May 15, 2008 that under California's constitution, gays and lesbians cannot be deprived of marriage rights due on grounds that marriage is solely for procreation; this decision was overturned in part by the passage of Proposition 8 on November 5, 2008,
which, in turn, has been challenged in court.
Arguments about tradition
Stanley Kurtz from the Hoover Institution said that same-sex marriage separates the ideas of marriage and parenthood, thereby accelerating marital decline. He cites studies showing a substantial rise in the out-of-wedlock birthrates, for both firstborn and subsequent children in areas where same-sex unions are legal. In Conaway v. Deane, the Maryland Supreme Court ruled that the State has a legitimate interest in encouraging the traditional family structure in which children are born.
Arguments concerning equality
Some opponents of same-sex marriage (including some ex-gay organizations) argue that the opposite-sex definition of marriage is not unequal, unjust, or exclusionary because homosexuality is not genetic or unchangeable. Same-sex marriage opponents support this position with research as well as anecdotal evidence regarding efforts to overcome unwanted same-sex attractions. However, several analyses of such studies have argued that they contain statistical and methodological flaws.
Many courts, including the New York Court of Appeals and the Maryland Supreme Court, have held an opposite-sex definition of marriage to be constitutional. The Maryland Supreme Court ruled that discrimination does not take place nor are constitutional rights denied in their laws that prohibit same-gender marriage; the court held that these laws protect the state's interest to have and protect children
and that "there is no fundamental right to marry a person of your own sex".
Others argue that an opposite-sex definition of marriage is inherently unequal. For instance, a heterosexual U.S. citizen who marries a foreign partner immediately qualifies to bring that person to the United States, while long-term gay and lesbian binational partners who have spent decades together are denied the same rights, forcing foreign gay partners to seek expensive temporary employer or school-sponsored visas or face separation. In the court cases leading up to the legalization of same-sex marriage in Canada, the restriction of legal marriage to opposite-sex couples was overturned because it was found to discriminate on the basis of sexual orientation, in violation of the equality guarantees of section 15 of the Canadian Charter of Rights and Freedoms.
Some opponents of extending marriage to same-sex couples claim that equality can be achieved with civil unions or other forms of legal recognition that do not go as far as to use the word "marriage" that is used for opposite-sex couples. The Massachusetts Supreme Judicial Court in Goodridge v. Department of Public Health held, in contrast, that there is a fundamental dissimilitude between "civil marriage" and "civil union" indicated in the very choice of language.
Of all of the state supreme courts that have considered cases alleging that an opposite-sex definition of marriage is unconstitutional and discriminatory, only five -- the high courts of Hawaii (later reversed by constitutional amendment), Vermont, Massachusetts, New Jersey, and California (later reversed by constitutional amendment) -- have found such a definition to be unconstitutional and discriminatory (see Same-sex marriage in the United States, Same-sex marriage status in the United States by state, Proposition 8, and Hawaii Constitutional Amendment 2 (1998)).
Parallels to interracial marriage
Opponents of same-sex marriage argue that men and women are fundamentally different from one another, whereas interracial couples still fit within the "one man and one woman" definition of marriage. Louisiana State University law professor Katherine Spaht holds that there is an inherent difference between interracial marriage and same-sex marriage because same-sex couples cannot procreate; Prof. Spaht characterizes the debate as follows: “The fundamental understanding of marriage has always been, by definition, a man and a woman. Never did Webster’s Dictionary define the term marriage in terms of the races." Proponents of same-sex marriage make a comparison between racial segregation and segregation of homosexual and heterosexual marriage classifications in civil law. They argue that dividing the concept of same-sex marriage and different-sex marriage is tantamount to "separate but equal" policies (like that overturned in the U.S. Supreme Court case Brown v. Board of Education), or anti-miscegenation laws that were also overturned by the Supreme Court in 1967 in Loving v. Virginia.
In 1972, after the Minnesota Supreme Court's ruling in Baker v. Nelson specifically distinguished Loving as not being applicable to the same-sex marriage debate, the United States Supreme Court dismissed the appeal "for want of a substantial federal question." This type of dismissal usually constitutes a decision on the merits of the case; as such, Baker appeared — at least for a time — to be binding precedent on all lower federal courts.
Economic arguments
Dr. M. V. Lee Badgett, an economist and associate professor at the University of Massachusetts Amherst, has studied the impact of same-sex legal marriage on four groups.
Impact on same-sex couples: Badgett finds that exclusion from legal marriage has an economic impact on same-sex couples. According to a 1997 General Accounting Office study requested by Rep. Henry Hyde (R), at least 1,049 U.S. Federal laws and regulations include reference to marital status. A later 2004 study by the Congressional Budget Office finds 1,138 statutory provisions "in which marital status is a factor in determining or receiving 'benefits, rights, and privileges.'" Many of these laws govern property rights, benefits, and taxation. Same-sex couples are ineligible for spousal and survivor Social Security benefits. Badgett's research finds the resulting difference in Social Security income for same-sex couples compared to opposite-sex married couples is US$5,588 per year. The federal ban on same-sex marriage and benefits through the 1996 Defense of Marriage Act (DOMA) extends to federal government employee benefits. According to Badgett's work, same-sex couples face other financial challenges against which legal marriage at least partially shields opposite-sex couples:
- potential loss of couple's home from medical expenses of one partner caring for another gravely ill one
- costs of supporting two households, travel, or emigration out of the U.S. for an American citizen unable to legally marry a non-US citizen
- higher cost of purchasing private insurance for partner and children if company is not one of 18% that offer domestic partner benefits
- higher taxes: unlike a company's contribution to an employee's spouse's health insurance, domestic partner benefits are taxed as additional compensation
- legal costs associated with obtaining domestic partner documents to gain some of the power of attorney, health care decision-making, and inheritance rights granted through legal marriage
- higher health costs associated with lack of insurance and preventative care: 20% of same-sex couples have a member who is uninsured compared to 10% of married opposite-sex couples
- current tax law allows a spouse to inherit an unlimited amount from the deceased without incurring an estate tax but an unmarried partner would have to pay the estate tax on the inheritance from her/his partner
- same-sex couples are not eligible to file jointly or separately as a married couple and thus cannot take the advantages of lower tax rates when the individual income of the partners differs significantly
While state laws grant full marriage rights (Massachusetts) or some or all of the benefits under another name (Vermont, New Jersey, California, etc.), these state laws do not extend the benefits of marriage on the Federal level, and most states do not currently recognize same-sex marriages or civil unions from other states.
One often overlooked aspect of same-sex marriage are the potential negative effects on same-sex couples. While the legal benefits of marriage are numerous, same-sex couples would face the same financial constraints of legal marriage as opposite-sex married couples. Such potential effects include the marriage penalty in taxation. Similarly, while social service providers usually do not count one partner's assets toward the income means test for welfare and disability assistance for the other partner, a legally married couple's joint assets are normally used in calculating whether a married individual qualifies for assistance.
Impact on businesses: Dr. M. V. Lee Badgett's research estimates the potential impact on businesses of same-sex marriage legalization to be $2 billion to the wedding industry alone. Badgett derives this estimate by calculating the amount spent on weddings if a) half of same-sex couples marry and b) each couple spends 1/4 the average amount spent on an opposite-sex wedding (US$27,600 average wedding cost / 4 = US$6,900 per same-sex couple).
Impact on employers: In terms of employers where marriage opponents fear higher benefit costs, Badgett and Mercer Human Resources Consulting separately find less than 1% of employees with a same-sex partner sign up for domestic partner benefits when a company offers them. Badgett finds less than 0.3% of Massachusetts firms' employees signed up for spousal benefits when that state legalized same-sex marriage.
Impact on governments: A 2004 Congressional Budget Office (CBO) report examines the impact of allowing the 1.2 million Americans in same-sex domestic partnerships in the 2000 Census to marry and finds the impact to be comparatively small in terms of the huge Federal budget. While some spending on Federal programs would increase, these outlays would be offset by savings in other spending areas. The report predicts that if same-sex marriage was legalized in all 50 states and on the Federal level, the U.S. government would bring in a net surplus of US$1 billion per year over the next 10 years.
Impacts on Mental Health
Recently, several psychological studies have shown that an increase in exposure to negative conversations and media messages about same-sex marriage creates a harmful environment for the LGBT population that may affect their health and well-being.
One study surveyed more than 1,500 lesbian, gay and bisexual adults across the nation and found that respondents from the 25 states that have outlawed same-sex marriage had the highest reports of "minority stress" — the chronic social stress that results from minority-group stigmatization — as well as general psychological distress. According to the study, the negative campaigning that comes with a ban is directly responsible for the increased stress. Past research has shown that minority stress is linked to health risks such as risky sexual behavior and substance abuse.
Two other studies examined personal reports from LGBT adults and their families living in Memphis, Tennessee, immediately after a successful 2006 ballot campaign banned same-sex marriage. Most respondents reported feeling alienated from their communities, afraid that they would lose custody of their children and that they might become victims of violence. The studies also found that families experienced a kind of secondary minority stress, says Jennifer Arm, a counseling graduate student at the University of Memphis.
In the wake of the recent passage of same-sex marriage-banning legislation in Arizona, California and Florida, Rotosky says she expects similar trends to emerge. In California, which overturned its same-sex marriage ban in June only to have that decision reversed in November, the LGBT community is reportedly experiencing minority stress.
Other arguments
Another school of thought regarding same-sex marriage holds that same-sex marriage is a red herring designed to create legal principles under which sexual orientation will be treated as an immutable characteristic like race, and that, in the words of Maggie Gallagher of the National Review, same-sex marriage advocates seek to use the law to "stigmatize, marginalize, and repress those who disagree with the government’s new views on marriage and sexual orientation."
Advocates for recognition of same-sex unions argue that there is no difference in the ability of same-sex and opposite-sex couples to make commitments and care for each other, and therefore the law of marriage should apply to both.
Dissidents to the same-sex marriage movement within the gay community argue that the pursuit of social recognition and legal benefits by means of marriage reinforces marriage as an institution of exclusion, because it extends rights and benefits to people on the basis of their relationship status.
Some same-sex marriage opponents take the view that legalization of same-sex marriage will open the door to the redefinition of marriage to include other legally recognized arrangements (such as polygamy) that would have unknown (and possibly detrimental) effects on children. The Weekly Standard commentator Stanley Kurtz argues allowing same-sex marriage blurs other common law precedents and will lead to the legalization of a variety of non-traditional relationships. One such non-traditional relationship is polyamory. Polyamory may be defined as a practice whereby a person has multiple simultaneous long-term loving relationships, in whatever form is chosen by those involved, with the knowledge and acceptance of their partners. This can include long-term stable group marriages, or stable couples who have external partners as well as their 'primary' partners. Another example of a non-traditional relationship is a cohabitation contract; one such contract in the Netherlands sparked many comparisons with gay marriage on American conservative blogs in 2005.
See also
Marriage, unions and partnerships by country
Documentaries and literature
Footnotes
External links
- , Evan Wolfson, Huffington Post, February 12, 2008.
- California Supreme Court Opinion overturning ban on same-sex unions, May 15, 2008
- , Joshua Baker, Institute for Marriage and Public Policy, May 2008.
- , Emily Doskow, NOLO, 2008.
- Newsweek Web Exclusive, December 16, 2008.
- by David Blankenhorn and Jonathan Rauch
Bibliography
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