Essay: Same Sex Marriage and Policy

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[. . .] " Kepner then quoted Marnie Jacobs, who also argued, "now that a few heterosexuals are beginning to throw off their chains, the homosexuals come in demanding an equal share of the old slavery. How crazy can we get?" Pat Arrowsmith, a British lesbian activist and peace promoter, famously married to claim her inheritance left to her under her father's condition that she take a husband. Arrowsmith told the British press that "marriage is a foolish institution' and she will be glad to make a mockery of it."[footnoteRef:2] After her marriage to a man who had married another woman to get her citizenship, Arrowsmith planned to donate her inheritance to various causes. [2: "Lesbian Marries for Money," Body Politic, 47 (Oct. 78), 16.]

The opposition to same-sex marriage is not only from religious groups, but there are some other hostile groups who are quite open about their dislike of homosexual individuals let alone the issue of same-sex marriage. These individuals are often perceived as homophobic, and they rarely gather open sympathy or support. Apart from the hostile outside opponents, there is also opposition within the supporters of same-sex marriage. These opponents seem to be wary of their assimilation into mainstream society via state regulation marriage, arguing that the extension of rights to marry can mask the problem underlying the same-sex marriage debate, e.g., the heteronormative nature of society (Lehr, 1999, p. 14; Warner, 1999, p. 88). Some lesbians and gay individuals are even puzzled over the popularity of same-sex marriage debate. To these individuals, the pursuit of same-sex marriage is frivolous, compared to other urgent issues. Other opponents within the lesbian and gay community argue that the extension of marriage to same-sex couples would only benefit certain groups, namely professionals, white, middle-class, able-bodied lesbians and gays whose families look very like the traditional heterosexual ideal (Donovan, 2004, p. 25).

Supporting Arguments

Human Rights/Civil Liberties

On the other hand, the support for same-sex marriage is as diverse as the reasons offered to oppose it. However, the most cited argument seems to be embedded within the human rights context. The Charter of Rights and Freedom prohibits discrimination based on sexual orientation. Therefore, many supporters feel that extending the right to marry is the only rightful action. The creation of civil partnerships addresses the problem of discrimination at the cost of creating an apartheid system of state-recognized relationships: marriage, which is open only to opposite sex couples, and partnership registration, which is open only to same-sex couples. (Kitzinger & Wilkinson, 2004, p. 133)

The arguments offered by both opponents and supporters of same-sex marriage are well grounded and appealing. However, it is probably reasonable to assume that as people get used to the idea of same-sex marriage the opposition will decrease overtime. It will be interesting to see how the attitudes towards same-sex marriage will change over the next decade and beyond. For example, the opposition to same-sex marriage could decrease over time as the population at large grows comfortable with the notion of same-sex marriage; thereafter, a change in people's attitude could come at much slower rate.

Liberty

A discussion of liberty must deal directly with a citizen's fundamental rights, regardless of any benefits proven to be associated with exercising that right. Two main questions related to the topic of my essay that I am discussing here are as follow: Do same-sex couples have a constitutional right to marry? Does case law of the constitution support such valid unions?

The Supreme Court decided in Loving v. Virginia (1967) that marriage is a fundamental right that cannot be barred based on race. But the Court did not just invalidate interracial marriage bans; they also stated that marriage is a "basic civil right fundamental to our very and existence and survival... A fundamental freedom" that cannot be infringed upon by the state due to "discrimination" (Loving v. Virginia, 1967). This is broader and more inclusive of other groups which the U.S. society discriminates. This suggests that the U.S. Supreme Court, carrying Loving v. Virginia to its logical conclusions, invalidates the ban against any class of marriages solely dependent upon discrimination in the society. Ronner (2005) makes a compelling argument that society, the courts, and legislation have discriminated against gay men and lesbians throughout the history of the United States. Just as with interracial marriage, tradition and continued discrimination argue for a ban against same-sex marriage, but the constitution at its basis protects citizens against unlawful infringement upon their rights.

The Supreme Court in 1967 used the Equal Protection clause of the Fourteenth Amendment in their decision (U.S. Constitution, 1788). It states that no citizen shall be denied equal protection of the laws. So the question becomes is the state protecting heterosexual couples but not same-sex couples? The answer is resounding yes. All of the benefits like protection for the health, financial well being, and mental health of heterosexual couples, but are not afforded to same-sex couples. This directly concerns liberty because it is a choice allowed to opposite-sex couples that are not allowed to same-sex couples.

The 14th amendment of the U.S. Constitution (1788) and Loving v. Virginia (1967) work in concert to validate the necessity of same-sex marriages.

Pursuit of Happiness

Pursuit of happiness can be operational zed as mental health benefits that relate to the state of being happy and not being distress. Marriage, as declared by the U.S. Supreme Court in 1967 and supported by modern psychological research, is integral to the pursuit of happiness. Pursuit of happiness is mentioned specifically in the Loving v. Virginia (1967) case that declared miscegenation laws unconstitutional and is clearly important in the consideration of equal protection under the constitution.

Conclusion

McConnell believed "that homosexuals should enjoy the same rights that heterosexuals do" including inheritance rights, property privileges, and tax benefits. Baker elaborated later that year that "As long as society can get away with depriving rights to a certain group, that group will always be second class citizens . . . And besides, Mike and I really do want to get married."64 Legally, Baker and McConnell cited "redress under wrongful death statutes," "alienation of affections statutes," and" one form of joint property ownership which in Minnesota is available only to wedded couples, providing advantages against creditors."65 Many of these rights, notably, were grounded in the leftover dredges of the 19th century legal system of coverture. This strategy on Baker and McConnell's part was deliberate; they argued that their marriage bid would "force the legislature to take a fresh look at a lot of statutes on the books" including the property rights embedded in marriage and the "laws that treat[ed] wives and husband unequally."

One significant argument in favour of inclusion of same sex marriage into legal marriage is based on long-standing prejudice of a minority group, homosexuals, and in part on a faulty understanding of the purpose of legal marriage. Proponents of this exclusion argue that the inclusion of same-sex couples will be damaging to legitimacy of the union. There is no evidence that this is the case. There is, however, substantial evidence that despite significant changes in history of marriage, it remains a common life choice. In addition, the psychological, financial and health benefits conferred by marriage relatively stable the relationship despite past changes in the institution.

A second argument made against the inclusion of same-sex couples in the institution of marriage is that marriage is for childbearing. This is not borne out by judicial precedent, which allows for childbearing to be a choice within marriage. This argument also assumes that gay and lesbian couples do not become mothers and fathers, both within homosexual and heterosexual unions. This is simply not the case.

A third argument is that children of same-sex unions are at increased risk for dysfunction that children of heterosexual unions. This argument is faulty on two levels. First, research does not support this claim. Children of lesbians and gays are as psychologically healthy as other children. Second, the prevention of legal marriage does not prevent the conception of these children; the prevention of the legal marriage of their parents serves to stigmatize them.

Finally after considering the alternatives, it appears that marital rights would be the only institution that meets the constitutional rights to life, liberty and the pursuit of happiness, as well as equal protection under the law, and the case law that ruled marriage is a fundamental right. Therefore, this is the policy recommendation made by this author, as supported by psychological and medical research and constitutional analysis.

References

Ball, Carlos A. (2003). The Morality of Gay Rights. New York: Routledge

Blasius, Mark. (1992). "An Ethos of Lesbian and Gay Existence." Political Theory: 642-671

Cain, Patrica. (2000). Rainbow Rights: The Role of Lawyers and Courts in the Lesbian and Gay Rights Movements. Boulder, CO: Westview Press

Charlotte Versagi, "Matings: How Do We Cement Our Relationships," The Advocate (Nov 25, 1982), 27.

Duberman, Martin B.(1993) Stonewall. New… [END OF PREVIEW]

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