Sharon Kowalski and
Karen Thompson were
in love. They had bought a home together in
Minnesota, exchanged rings as a symbol of their
commitment to one another, and enjoyed a normal, happy life together until November 13, 1983, when a
drunk driver smashed into Sharon's car. When Karen got to the hospital, she was denied permission to see Sharon or even to know what condition she was in on the basis that she was not family; she was
just a friend. It turned out that Sharon had suffered a serious brain injury, leaving her unable to walk and in need of constant care--care that the
courts would not let Karen provide. Sharon's parents had run to court upon learning that the two women were
lovers to ensure that Karen would not have any contact with or authority to act for her incapacitated partner. It took Karen seven years and thousands of dollars in legal costs to win the right to visit, care for, and finally bring Sharon home.
Cases such as these plague this country as every day, in every state, same-sex couples are denied the right to marry. In the United States, marriage confers many legal and practical rights, protections, and benefits. Among these are:
Currently in 48 states and the
District of Columbia, most or all of these rights and benefits are withheld from
homosexual couples who want to marry. Withholding this fundamental human right from homosexuals is
hypocritical, blatantly
discriminatory, and only serves to fuel prejudice and
homophobia.
Conflict with federal precedents
Denying homosexuals the right to marry is entirely contrary to
federal precedents established in the
Supreme Court over the last 30 years. In the 1970's, the Supreme Court ruled in the case of
Loving v. Virginia that a state law banning
interracial marriage was unconstitutional. Because the state treated black-white couples differently than white-white or black-black couples, it was
discriminating because of the race of one of the partners. Furthermore, in 1988, two federal judges ruled that
sexual orientation is like
race for
equal protection purposes: it is part of one's "hard-to-change"
identity that has been "unfairly penalized" by the state in the past. A logical extension of the Court's reasoning would say that same-sex marriage bans are also
unconstitutional: since female-female and male-male couples are treated differently than male-female couples, it is discriminating based on the sex of one of the partners. As race was the regulatory variable in the case of
Loving v. Virginia, so is sex the regulatory variable in banning same-sex marriage.
This rationale was used in the decision of the Hawaii Supreme Court in the 1993 case of Baehr v. Lewin, when Justice Steven Levinson ruled that a state law forbidding same-sex unions was unconstitutional on the basis of sex discrimination and invasion of the constitutionally-granted right to privacy, as determined in cases like Loving and the 1978 case of Zablocki v. Redhail. In Zablocki, the Supreme Court ruled that "the right to marry is part of the fundamental 'right to privacy'" in the US Constitution, as well as declaring marriage to be "of fundamental importance to all individuals," "one of the basic rights of man," and "the most important relation in life."
The shortcomings of domestic partnership
However, the Hawaii State Legislature stopped short of granting gay marriage rights and compromised with the
Reciprocal Beneficiaries Act, which allowed homosexuals and unmarried couples only about a quarter of the benefits enjoyed by married couples. The more recent and better-known
Vermont state law authorizing
domestic partnerships between homosexuals grants couples more of the rights and privileges granted to married couples, but contains no mention of
commitment and reserves the term "marriage" for a union between a man and a woman. While domestic partnerships are certainly a step in the right direction, these compromises infantilize lesbian and gay couples, treating them as only interested in the goodies and not in the serious obligations of partnerships. Laws that refuse to grant homosexuals the same maritial status and rights as heterosexuals set homosexuals apart and validate the
bigotry against them. Representative Steve Hingtgen of Vermont said, "It institutionalizes bigotry and affirmatively creats an
apartheid system of family recognition." As it stands, even the most far-reaching state recognition of same-sex unions treats homosexuals as
inferiors.
Defense of Marriage Act (DOMA)
In 1996, in response to the Hawaiian decision in
Baehr v. Lewin, Congress passed a bill ironically named the "
Defense of Marriage Act," or DOMA. The bill defines the term "marriage" to mean "only a legal union between one man and one woman as husband and wife," bars Social Security, veterans', and other federal benefits in the event of a gay partner's death or disability, and disallows same-sex couples from filing joint income-tax returns. Most importantly, the bill allows states to pass their own mini-DOMA laws that exempt them from giving full faith and credit to "any public act, record, our judicial proceeding of any other State...respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State...or a right or claim arising from such relationship." In other words, if two men or two women who filed a domestic partnership agreement in Vermont and were, for all intents and purposes,
legally wed, tried to move to a state that did not recognize same-sex partnerships, their marriage would be rendered null and void. Currently, over 30 states have such laws. This is in complete and direct violation of the
Full Faith and Credit clause of the Constitution, which states that "Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State." In addition to being unconstitutional, DOMA is discriminatory on the basis of sex and sexual orientation.
Opposing arguments
One of the most oft-cited arguments of opponents of same-sex marriage is the idea that marriage exists for the purpose of
procreation, of having and raising children. Opponents point out the impossibility of gay couples producing a child together, and argue that the healthiest environment in which to raise a child is that of the traditional
nuclear family, with a
mother and a
father. These arguments have some fundamental logical flaws. Many married couples are
infertile, and still others simply choose not to have children at all; yet no one contests their right to marry. If the ability to procreate is to be regarded as a
prerequisite for marriage, a
fertility test as well as a blood test would be required. In addition, many lesbians can and do have children via
artificial insemination, just as a woman with an infertile husband might do, and many gay couples of both sexes adopt. Gay couples can be as fit and loving parents as non-gay men and women, and a plethora of scientific studies have shown that having gay parents is psychologically harmless. In addition, according to numerous Supreme Court decisions including
Zablocki v. Redhail and
Turner v. Safley, single parents who haven't paid the required child support,
state prisoners, and even known
child molesters are allowed to marry and raise children. Committed lesbian and gay couples surely have as much of a right to marry as convicted felons.
Opponents of same-sex marriage also argue that marriage is traditionally a heterosexual institution, and that allowing same-sex marriage would have "disruptive and unforseen consequences." Supporters of this argument would do well to remember the centuries for which slavery was a traditional institution. Concerns regarding "disruptive and unforseen consequences" were also raised by segregationist states opposing judicial remediation of apartheid in the 1950's and 60's. Those who claim that same-sex unions are immoral would do well to remember how recently it was considered immoral for two black people to marry, or for a black man to marry a white woman. The fact is, tradition is an artificial, man-made concept. An idea or practice only becomes tradition when people cling to it and refuse to accept change. Longstanding traditions and the way things have been has no bearing on what is right, just, and good. As the philosopher David Hume said, "You can't get ought from is." The fact that homosexuals currently cannot marry is an unconvincing and disturbingly narrow-minded defense for continuing to deny them their rights.
In a country that claims to be founded on equal opportunity, separate and unequal marriage laws for gays are unacceptable. Until we acknowledge equal marriage rights for persons of all genders and sexual orientations, we cannot call ourselves an equal society.
Sources:- Curry, Hayden, Denis Clifford, and Robin Leonard. A Legal Guide for Lesbian and Gay Couples, 7th ed. Berkeley, CA: Nolo Press, 1993.
- Eskridge, William N., Jr. Equality Practice: Civil Unions and the Future of Gay Rights. New York: Routledge, 2002.
-
Marriage Rights and Benefits. 2003. Nolo. May 29, 2003.
- Small, Fred, Reverend. “Why Gay Marriage Matters.” First Church Unitarian, Littleton. February 2, 2003.