Same-sex marriage

Same-sex marriage is a term for a legally or socially recognized marriage between two people of the same sex. "Same-sex marriage" and "gay marriage" are the most common terms used in news media and politics. Other terms used are included below.

Debates over terminology

Proponents of same-sex marriage use the term "equal marriage" to stress that they seek equality as opposed to special rights.^[1] Opponents argue that equating same-sex and opposite-sex marriage changes the meaning of marriage and its traditions.^[2] Furthermore they frequently use the term "homosexual marriage," and some surveys have suggested that the word "homosexual" is more stigmatizing than the word "gay."^[3]

Some 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. Harvard Law professor Alan Dershowitz, for instance, writes that such an arrangement would "strengthen the wall of separation between church and state by placing a sacred institution entirely in the hands of the church while placing a secular institution under state control."^[5] Some proponents and opponents of same-sex marriage on both sides find such a suggestion impractical. "Why do we suddenly have to throw out the entire system, invent some whole new thing, just because gay people want to get married?," asks Evan Wolfson of Freedom to Marry and a contributor to the landmark cases in Vermont and Massachusetts that led to the legalization of same-sex civil unions and marriages, respectively. "I don’t actually see Alan Dershowitz doing anything about this, other than writing an article, because he probably rightly understands it would be an immense project to go around the country and convince 200 million plus people to trade in their marriage for something new and explain why we are doing this when we actually have a legal system that already clearly distinguishes between civil and religious marriage."^[6] Conservative critics in the US like National Review's Jennifer Morse contend that the conflation of marriage with contractual agreements is itself a threat to marriage that "has undermined more heterosexual marriages than anything, with the possible exception of adultery."^[7]

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 largely abandoned this practice. The last major U.S. print daily to employ this editorial style was The Washington Times, which abandoned the policy in February 2008 at the behest of newly appointed editor John Solomon.^[8]

Some online publications such as WorldNetDaily and Baptist Press still follow the practice. Cliff Kincaid, editor of the conservative American media-watchdog group Accuracy in Media and president of an anti-United Nations group called America's Survival, agrees with this method, arguing that "marriage" is a legal status denied same-sex couples by most state governments.^[9] Same-sex marriage supporters argue that the use of scare quotes is an editorialization that implies inferiority, and point out that the quotes are even used when referring to same-sex marriages in states where such unions are legal.^[10]

Associated Press style, which professional journalists in the United States generally adopt, recommends the usages marriage for gays and lesbians or in space-limited headlines gay marriage with no hyphen and no scare quotes. It should be noted 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

Main article: History of same-sex unions

The first recorded use of the word "marriage" for same-sex couples occurs during the Roman Empire. A number of marriages are recorded to have taken place during this period.^[11] In the year 342, the Christian emperors Constantius and Constans declared same-sex marriage to be illegal.^[12]

Current status

Main article: Status of same-sex marriage

Status of same-sex partnerships in Europe.      Same sex marriage recognized      Civil unions recognised      Unregistered cohabitation recognised      Issue under political consideration      Unrecognised or unknown      Same sex marriage banned

Status of same-sex partnerships in the United States      Same-sex marriages      Unions granting rights similar to marriage      Unions granting limited/enumerated rights      Foreign same-sex marriages recognized      Statute bans same-sex marriage      Constitution bans same-sex marriage      Constitution bans same-sex marriage and other kinds of same-sex unions

Marriage, as defined by civil law, is currently available to same-sex couples in seven countries. In the United States, same-sex couples can marry in some jurisdictions, but their unions are not recognized nationally. The Netherlands was the first country to legalize same-sex marriage in 2001. Same-sex marriages are also legal in Belgium, Spain, Canada, South Africa, and Norway, along with the states of Massachusetts and Connecticut in the United States.^[13] From June 2008 until November 2008, California allowed for same sex marriages, but Proposition 8 overturned that right. This is the second time that California's voters passed a proposal to ban same sex marriage. They did so before with Proposal 22 in 2000. In 2005, Spain became the first country in the world to recognize same-sex marriage, including adoption rights, on equal terms and under the same law.

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.^[14] As of November 2008, twenty-nine states have passed constitutional amendments explicitly barring the recognition of same-sex marriage.^[15], nineteen of which prohibit the legal recognition of any same-sex union. Nineteen additional states have legal statutes that define "marriage" as a union of two persons of the opposite-sex.^[16] The territory of Puerto Rico ratified a similar statute in 1998. Nonetheless, some states are beginning to offer legal recognition to same-sex couples, whether in the form of marriage or as civil unions or domestic partnerships. American constitutional scholars have debated whether DOMA violates the Full Faith and Credit Clause of the U.S. Constitution^[17] and whether the federal government has the power to regulate marriage at all, since marriage law has been reserved to the states since the formation of the US. President-elect Barack Obama's political platform includes full repeal of the DOMA.^[18]

The 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 federal Australian Labor Party government favours synchronised state and territory registered partnership legislation (as in Tasmania) although the Australian Capital Territory favours the introduction of civil unions with official ceremonies. By stark contrast, same-sex marriage in Canada was preserved when a proposed repeal bill failed at its first reading in 2006, while New Zealand's Parliament similarly heavily defeated a private members bill that would have prohibited same-sex marriage in New Zealand in December 2005. However, as far as current jurisprudence goes, New Zealand's Marriage Act 1955 still recognises only opposite-sex couples as marriageable (although it has also included transsexuals who have undergone reassignment surgery as the 'opposite sex' for these purposes, since Family Court and High Court of New Zealand decisions in 1995.

Global recognition of same sex relationships.      Same Sex Marriage      Civil Unions/Domestic Partnerships      Foreign Marriage      Recognition Debated No combination colors are needed because each country/state/territories color is over written with the highest form of relationship recognition escalating to same sex marriage. The accuracy of this image is subject to change rapidly due to current events taking place.

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. (This makes the practice of same-sex marriage, as far as Israel is concerned, like the performance of a Reform or Conservative Jewish wedding.)

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.” ^[19]

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 LGBTI rights. Based on its recommendation the government will introduce a same-sex marriage bill.^{[20][21][22][23]} Thus, the laws legalising same-sex marriage or civil unions will be enacted in the near future.

Civil unions and partnerships

Main article: Civil union

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 (unregistered co-habitation since 1996; registered partnership from 2009), 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.).

The notion of civil unions is rejected by some gays and lesbians, such as this protester at a large demonstration in New York City against California Proposition 8.^[24] Same-sex marriage movement founder Evan Wolfson does not feel civil unions are a replacement for full marriage equality.^[4]

In the United Kingdom, civil partnerships have 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. 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 cohabitating 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.^[25] 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.^[26]

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.^[27]

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.^[28] The World Health Organization has recently banned the recruitment of cigarette smokers.^[29] Agencies of the United Nations coordinate some human resource policies amongst themselves.

Despite their relative independence, few organizations currently recognise 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.^[30]

Transgender and intersex persons

Main article: Legal aspects of transsexualism

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.

An example of the problem with chromosomal definition would be a woman with Complete Androgen Insensitivity Syndrome (CAIS), who would have a 46,XY karyotype, which is typically male. Although she may have been legally registered as female on her birth certificate, been raised as a female her entire life, have engaged in heterosexual female relationships, and may even have married before the status of her condition was known, using the chromosomal definition of sex could prevent or annul the marriage of a woman with this condition to a man, and similarly allow her to legally marry another woman. These same issues were faced by the IOC to determine who qualified as a female for the women's competitions.^[31]

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. Although it has not been exhaustively stated by a court, it is possible that a court could find that if a person has their gonads removed (not limited to a sex-change but also for medical disorder, such as testicular cancer or removing sexual ambiguity), they would enter a sexual limbo status and fail to meet either set of criteria, thus excluding them from any allowance to marriage. This situation could easily occur through exclusionary findings by separate courts in a state that already does not recognize transsexual marriages to people of the same sex as their birth-sex, as in the case of Linda Kantaras vs. Michael Kantaras. Basing the distinction on genital appearance is complicated by available surgery converting typically male genitalia to typically female genitalia, which has advanced to the point where, even were a genital inspection necessary, many transgendered women would pass this inspection without question.

Requiring a surgical reassignment for definition of gender for the purpose of declaring a marriage valid comes with further problems. The female-to-male sex reassignment surgery is expensive and does not provide results as satisfactory as its counterpart; therefore many female-to-male transsexuals choose not to undergo this procedure. In a situation where genitalia legally defines gender and same-sex marriage is not permitted, the transsexual man would therefore only be allowed to legally marry another man if he wished to marry.

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.^[32]

In any legal jurisdiction where marriages are defined without distinction of a requirement of a male and female, these complications do not occur, and some legal jurisdictions may recognize a legal and official change of gender, which would allow one to satisfy the requirement of either "male" or "female" according to their gender-identity within their legal definition of marriage. Although some legal jurisdictions continue to only recognize the "immutable traits determined at birth." (Linda Kantaras vs. Michael Kantaras)

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, the person must dissolve their marriage or civil partnership before they can get their gender recognition certificate. They are then free to enter into a civil partnership or a marriage again with their former wife, husband, or civil partner.

In countries with legal systems based on the Napoleonic codes, being legally recognized as one's transitioned gender may require conditions of infertility, where if a transsexual were ever found to have had a child, it would result in a reversal of a legal sex change and spontaneous annulment of the marriage if that country does not recognize same-sex marriages.

In the United States, transsexual and intersexual marriages typically run into the complications detailed above. As definitions and enforcement of marriage is defined by the state, these complications will vary from state to state. In Massachusetts no problem should arise in seeking to get a marriage, or enforcing that marriage, however marriage in states that have more prohibitive definitions, any marriage with a transsexual could face challenge in a court based on any number of criteria.

Controversy

Map showing the status of homosexuality laws of the world.      No information Homosexuality legal      Same sex marriages      Same sex unions      No same sex unions      International marriage licenses recognized Homosexuality illegal      Minimal penalty      Large penalty      Life in prison      Death penalty      No info on penalty

While there are few instances of societies recognizing same-sex unions as marriage, the historical and anthropological record reveals a remarkable variety of treatment of same-sex unions ranging from sympathetic toleration to indifference to prohibition. Many organizations opposed to gay marriage, such as the Alliance Defense Fund have argued that same-sex marriages are not marriages,^[33] that legalization of same-sex marriage will open the door for the legalization of polygamy,^[34] that legalization of same-sex marriage would erode religious freedoms,^[35] and that same-sex marriage deprives children of either a mother or a father.^[36] On the other hand, 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."^[37] Further, some supporters of same-sex marriage take the view that the government should have no role in regulating personal relationships,^[38] while others argue that same-sex marriage would provide social benefits to same-sex couples.^[39]

The debate regarding same-sex marriage includes debate based upon social viewpoints as well as debate based on religious convictions, economic arguments, health-related concerns, and a variety of other issues.

Religious arguments

Historian John Boswell claims the 4th century Christian martyrs Saint Sergius and Saint Bacchus were united in the rite of adelphopoesis, or brother-making, which he calls an early form of religious same-sex marriage^[40]

Religious opposition

Many objections to same-sex marriage are on religious grounds. Opponents sometimes claim that extending marriage rights to same-sex couples could undercut the conventional purpose of marriage as interpreted by their personal religious understanding.^[41] Other opponents of same-sex marriage hold that same-sex marriage is contrary to God's will,^[42][43] that it is unnatural,^[44] and that it encourages what they view as unhealthy behavior.^[45] Still others argue that same-sex marriage would encourage individuals to act upon homosexual urges, when they desire that these individuals ought to instead seek help to overcome their orientation.^[43] James Dobson, in Marriage Under Fire and elsewhere, argues that legalization for or passive tolerance of same-sex marriage would widen the definition of families.

The Roman Catholic Church argues from a theological perspective against recognizing same-sex unions. In their view acts of sexual intimacy are only proper between a man and a woman within wedlock. Secular government recognition of any other union within the definition of "marriage" would therefore reflect a belief in the moral equivalence of acts between a husband and wife and acts between two men or two women; this belief is contrary to Catholic doctrinal teaching.

Catholic opponents also argue that inclusion of same-sex unions within the definition of marriage would also evidence rejection of the idea that, in general, it is best that children be raised by their biological mother and father, and that it is the community's interest in ensuring the well-being of children is the sole basis for the government's licensure and involvement in marriage.^[46]

Conservatives and some moderate Christians argue that the book of Leviticus contains a prohibition against male-male sexuality. Some Biblical scholars interpret Genesis 19:5 as indicating that homosexual behavior led to the destruction of the ancient cities of Sodom and Gomorrah.^[47] Other passages sometimes interpreted as condemning homosexuality are Leviticus 18:22, Leviticus 20:13, and in the New Testament of the Bible, I Corinthians 6:8-10 and Romans 1:24-27.^[48] While these passages do not define the institution of marriage, Genesis 2:22-24 reads as follows: "Then the Lord God made a woman from the rib he had taken out of the man, and he brought her to the man. The man said, 'This is now bone of my bones and flesh of my flesh; she shall be called 'woman,' for she was taken out of man.' For this reason a man will leave his father and mother and be united to his wife, and they will become one flesh."^[49] This passage is referred to by Jesus in the New Testament Gospel of Matthew.^[50] Furthermore, many Christians hold the belief that Romans 1 proscribes all homosexual behavior, regardless of its relational context.^[51]

Religious support

Some moderate and liberal Christians such as the Metropolitan Community Church, the United Church of Christ and progressive congregations within the mainline denominations interpret the passage in Romans as relating to specific instances of Graeco-Roman temple sex acts and idolatrous worship lacking relevance to contemporary same-sex relationships.^[52]

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", as affirmed by the United Church of Canada's 37th General Council.^[53]

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).

At the 1996 UU General Assembly, delegates voted overwhelmingly that they would perform same-sex marriage ceremonies, and the church has been performing weddings with and without state sanction ever since.^[54][55] The United Church of Christ's General Synod passed a resolution affirming "equal marriage rights for all people regardless of gender" in 2005. The church allows but does not require pastors to perform same-sex weddings.^[56]

The United Church of Canada was active in the campaign that led to legal recognition of same-sex marriages in Canada. The United Church now allows individual congregations to decide whether or not to perform these marriages.^[57] Likewise, in the Protestant Church of the Netherlands, where same-sex marriages have been legal since 2001, individual congregations decide if they will perform them.^[58]

Judaism

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. The Orthodox Union in the United States supports a Constitutional amendment banning same-sex marriage.^[59] Some Conservative Jews reject recognition of same-sex unions as marriage, but permit celebration of commitment ceremonies, in part as an expression their belief that scripture requires monogamy of all sexually active couples.^[60] Members of Reform Judaism support the inclusion of same-sex unions within the definition of marriage.^[61] The Jewish Reconstructionist Federation leaves the choice to individual rabbis.^[62]

Arguments concerning children and the family

Main article: LGBT parenting

Some opponents of same-sex marriage argue that a child should be raised by only a father and a mother.^[63][64] The Church of Jesus Christ of Latter-day Saints argues for traditional gender roles in parenting, claiming they are foundational to parenting.^[65] 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.^{[66][67][68][69][70][71]} Another study showed being without a resident father from infancy does not seem to have negative consequences for children.^[72]

Research has found no major differences in parenting or child development between families headed by two mothers and other fatherless families.^[73][74][72] Like children raised by single mothers, children raised by two mothers perceived themselves to be less cognitively and physically competent than their peers from father-present families.^[74] 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.^[72] 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 inter-sexed families.^[74]

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.^[75] 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.^[76] Noted Harvard political philosopher and legal scholar John Rawls supports gay marriage and did not believe that it would undermine the welfare of children.^[77]

Arguments concerning divorce rates

One of four newly wedded same-sex couples (in this case, a bridal couple) in a public wedding at Taiwan Pride 2006.

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 (later part of a book), 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.^[78]

However, a study on short-term same-sex marriages 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.^[79] 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" as well as differing motivations for getting married.^[79]

Reproduction

See also: Same-sex marriage and procreation

Those who advocate that marriage should be defined exclusively as the union of one man and one woman argue that inter-sexed 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 as much as jobs. "Government does not create marriage any more than government creates jobs."^[80] 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. Opponents of same-sex marriage quote Bertrand Russell who said "it is through children alone that sexual relations become important to society, and worthy to be taken cognizance of by a legal institution."^[81]

Based on research showing that, on average, children do best when raised by their biological parents in a low-conflict marriage,^[82] some argue that legal marriage is a way of encouraging monogamy and commitment by those who may create children through their sexual coupling.^[83][84] One prominent supporter of this viewpoint, syndicated columnist Maggie Gallagher, argues that "marriage as a universal social institution is grounded in certain universal features of human nature. When men and women have sex, they make babies. Reproduction may be optional for individuals, but it is not optional for societies. Societies that fail to have “enough” babies fail to survive. And babies are most likely to grow to functioning adulthood when they have the care and attention of both their mother and their father."^[83]

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 in which several same-sex couples argued that the state of Washington's version of the Defense of Marriage Act (DOMA) was unconstitutional, the Washington Supreme Court ruled 5 to 4 that the law was constitutional. Writing in the majority opinion, Justice Barbara Madsen wrote in 2006:^[85]

The Legislature was entitled to believe that limiting marriage to opposite-sex couples furthers procreation, essential to the survival of the human race and furthers the well-being of children by encouraging families where children are brought up in homes headed by children's biological parents.

Some proponents of same-sex marriage also 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 Maryland Supreme Court ruled that "the fundamental right to marriage and its ensuing benefits are conferred on opposite-sex couples not because of a distinction between whether various opposite-sex couples actually procreate, but rather because of the possibility of procreation."^[86]

Social arguments

Another school of thought regarding social arguments against 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 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."^[87]

Advocates of same-sex marriage oppose these social arguments. 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.^[39]

Prenuptial and postnuptial agreements arise among those holding this view.^[38]

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.^[88]

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.^[89] In Conaway v. Deane et al, the Maryland Supreme Court ruled that the State has a legitimate interest in encouraging the traditional family structure in which children are born.^[86]

Arguments concerning equality

2004 San Francisco march in support of same-sex marriage

Some opponents of same-sex marriage (including some so-called ex-gay organizations) argue that sexual behavior is not genetic or unchangeable, reasoning that if homosexuality is not genetic or unchangeable, it is not unjust for government to define marriage as the union of one woman and one man.^{[90][91][92][43][93]} Same-sex marriage opponents support this position with research as well as anecdotal evidence regarding efforts to overcome unwanted same-sex attractions.^[94] They point to the American Psychiatric Association's statement which reads "some people believe that sexual orientation is innate and fixed; however, sexual orientation develops across a person’s lifetime."^[95]

In Deane & Polyak v. Conaway, the Maryland Supreme Court ruled "There is no fundamental right to marry a person of your own sex".^[86] 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.^[96]

Newlywed male same-sex couple at Gaypride 2006 in Reykjavik.

In a 2003 case titled Lawrence v. Texas, the Supreme Court held that the right to private consensual sexual conduct was protected under the Fourteenth Amendment. The Maryland Supreme Court ruled that the case did not establish the right to same-sex marriage.^[86]

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 don't go as far as to use the word "marriage" that's used for opposite-sex couples. An opposing argument, used by the Massachusetts Supreme Judicial Court in Goodridge v. Department of Public Health, is the following: "the dissimilitude between the terms "civil marriage" and "civil union" is not innocuous; it is a considered choice of language that reflects a demonstrable assigning of same-sex, largely homosexual, couples to second-class status" and also that "The history of our nation has demonstrated that separate is seldom, if ever, equal." There is, however, a bill pending in the United States Congress since 2000, called Uniting American Families Act pertaining to this alleged discrimination.

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 -- 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, and Hawaii Constitutional Amendment 2 (1998)).^[97]

Some opponents of same-sex marriage argue that a state’s decision to define marriage as a relationship between one woman and one man does not discriminate against anyone. Courts in Maryland, for example, ruled that discrimination does not take place nor are constitutional rights denied in their laws that prohibit same-gender marriage, but rather protect the state's interest to have and protect children.^[98] According to this view, the 47 states in the United States that do not allow same-sex marriage^[99] confer identical rights upon adult, unmarried persons: the right to marry any consenting, unrelated, unmarried adult of the opposite sex.^[100]

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.^[101] Louisiana State University law professor Katherine Spaht has characterized 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. There is an inherent difference between interracial marriage and same-sex “marriage” because homosexuals cannot procreate."

Proponents of same-sex marriage make a comparison between racial segregation and segregation of homosexual and heterosexual marriage classifications in civil law.^[103] 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.

It is unclear whether Baker v. Nelson remains as a potential bar to the federal courts from hearing cases regarding same-sex marriage. The federal Defense of Marriage Act of 1996 (DOMA) simultaneously created (1) a federal definition of marriage, 1 U.S.C. § 7, and (2) a new rule under the Full Faith and Credit Act (passed pursuant to Congress's authority under the federal Constitution's Full Faith and Credit Clause), 28 U.S.C. § 1738C, purporting to limit mandatory interstate recognition of same-sex marriages. By "federalizing" marriage with statutes that are susceptible to judicial scrutiny, Congress effectively — albeit perhaps unintentionally — expanded the subject-matter jurisdiction of the federal courts, seemingly superseding Baker's dismissal "for want of a substantial federal question."

This loophole in jurisdiction recently came to light when a same-sex couple was granted standing to sue in federal district court on a claim that DOMA is unconstitutional under the federal Constitution. See Smelt v. County of Orange, 374 F. Supp. 2d 861 (C.D. Cal., 2005), aff'd in part and rev'd in part, 447 F.3d 673 (9th Cir. 2006), cert. denied, 127 S. Ct. 396 (2006). In Smelt, the district court applied Pullman abstention to one part of the claim, but it proceeded to the merits on another part, finding DOMA to be constitutional. The United States Court of Appeals for the Ninth Circuit affirmed the district court on the abstention question, but it reversed the district court on the merits, holding that the couple lacked standing to sue. The Ninth Circuit raised the standing question sua sponte, but only because the couple had not demonstrated the requisite injury. The Ninth Circuit left open the possibility that another couple with a demonstrable injury could bring the same suit in the future. Importantly, Baker v. Nelson is mentioned nowhere in the Ninth Circuit's opinion; its continuing relevance is therefore highly suspect.

Beginning in 2003, members of Congress have annually introduced a "court-stripping" provision that would prevent all federal courts from hearing claims challenging the constitutionality of DOMA. See, e.g., Marriage Protection Act of 2003, H.R. 3313 (108th Cong., 1st Sess.). This proposed court-stripping provision has itself been challenged as being of dubious constitutionality. See Jason J. Salvo, Comment, Naked Came I: Jurisdiction-Stripping and the Constitutionality of House Bill 3313, 29 Seattle U. L. Rev. 963 (Summer 2006); Maxim O. Mayer-Cesiano, On Jurisdiction-Stripping: The Proper Scope of Inferior Federal Courts' Independence from Congress, 8 U. Pa. J. Const. L. 559 (May 2006); J. Spencer Jenkins, Note, 'Til Congress Do Us Part: The Marriage Protection Act, Federal Court-Stripping, and Same-Sex Marriage, 40 New Eng. L. Rev. 619 (Winter 2006); Sarah Kroll-Rosenbaum, Note, The Marriage Protection Act: A Lesson in Congressional Over-Reaching, 50 N.Y. L. Sch. L. Rev. 809 (2005-2006); Michael J. Gerhardt, The Constitutional Limits to Court-Stripping, 9 Lewis & Clark L. Rev. 347 (Summer 2005); Theodore J. Weiman, Comment, Jurisdiction Stripping, Constitutional Supremacy, and the Implications of Ex Parte Young, 153 U. Pa. L. Rev. 1677 (2005).

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.'"^[104] 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. For example, after the 2006 death of former Massachusetts Congressman Gerry Studds (D), the first openly gay member of Congress, his legal spouse Dean Hara was denied the estimated $114,337 annual pension to which Hara would have been eligible if their Massachusetts marriage was recognized on the federal level. 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 more 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.^[104] In terms of specific programs' spending the report states:

Recognizing same-sex marriages would increase outlays for Social Security and for the Federal Employees Health Benefits (FEHB) program, CBO estimates, but would reduce spending for Supplemental Security Income (SSI), Medicaid, and Medicare. Effects on other programs would be negligible. Altogether, CBO concludes, recognizing same-sex marriages would affect outlays by less than $50 million a year in either direction through 2009 and reduce them by about $100 million to $200 million annually from 2010 through 2014.^[104]

The CBO study counters the economic argument by some U.S. critics of same-sex marriage against governmental recognition on the grounds that the public should not have to shoulder the burden of increased taxes and insurance premiums to cover the associated costs.^[105]

Other arguments opposing same-sex marriage

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 family forms such as polygamy; some are concerned that the same arguments used to advocate for same-sex marriage legislation could be used to advocate for other legally recognized arrangements that would have unknown (and possibly detrimental) effects on children.^[33][106] 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.^[107]

• Polyamory. Defined as the practice whereby a person has more than one long term loving relationship in their life, with the knowledge and acceptance of others they are involved with, in whatever form is chosen by those involved. This can include long term stable group marriages, or stable couples who have external partners as well as their 'primary' partner. A cohabitation contract in the Netherlands in 2005 sparked many comparisons with gay marriage on American conservative blogs.^[108] Cohabitation contracts are neither "marriage" or "registered partnerships" under Dutch law.[7]
• Marriages of convenience for tax or other reasons.

See also

Documentaries and literature

• A Union in Wait
• Why You Should Give A Damn About Gay Marriage
• Freedom to Marry
• Pursuit of Equality
• Tying the Knot
• MTV's True Life: I'm Gay and I'm Getting Married

Footnotes

References

External links

• Where Can Gays Wed? Newsweek's Interactive Map on same-sex marriage legislation in the United States by Marc Bain, Alicia Parlapiano and Xaquín G.V.
• LA Weekly feature, "California Supreme Court Set to Consider Gay Marriage," Feb. 2008 by Matthew Fleischer
• Today is Freedom to Marry Day - Just Don't Say "Gay Marriage"!, Evan Wolfson, Huffington Post, February 12, 2008.
• Lockyer v. City and County of San Francisco California Supreme Court Opinion overturning ban on same-sex unions, May 15, 2008
• American Courts on Marriage: Is Marriage Discriminatory? 1998-2008, Joshua Baker, Institute for Marriage and Public Policy, May 2008.
• Address by Prime Minister Paul Martin on Bill C-38 (The Civil Marriage Act) , Prime Minister Paul Martin, Canadian House of Commons, Canada, February 2005. (On Tegan and Saras MySpace-Blog)

Bibliography

LGBT and Queer studies Gender and sexual identities Lesbian · Gay · Bisexual · Transgender · Queer · Third sex / third gender · Transsexual · Two-spirit Sexual orientation Bisexuality · Homosexuality · Biology and sexual orientation · Environment and sexual orientation · Homosexuality and psychology · Demographics · Kinsey scale · Klein Grid History Timeline · Social movements · Gays in the Holocaust · Gay Liberation · Stonewall riots · History of lesbianism · Adelphopoiesis · Pederasty LGBT community and culture Coming out · Drag king · Drag queen · Gay bar · Gay village · Gay icon · Lesbian utopia · Pride · Pride parade · Same-sex relationship · Slang · Slogans · Symbols · Tourism Legal issues Homosexuality laws of the world · Adoption · Parenting · Civil unions and partnerships · Same-sex marriage · Sodomy law · Violence · Military service · Hate crimes · LGBT rights groups · LGBT rights activists Attitudes and discrimination Biphobia · Gay bashing · Heterosexism · Homophobia · Lesbophobia · LGBT rights opposition · Religious perspectives · Transphobia Category:LGBT · Category:Queer studies