Same Sex Marriage

In the U.S., married couples receive many legal benefits that couples who live together but are unmarried do not. More and more, gay couples are insisting that they receive the same legal rights that the traditional, heterosexual married couples receive. Gay rights advocates believe that it is inequitable and biased to refuse to give certain privileges to any couple, gay or not. For example, marriage enables spouses to receive insurance through their partners' employers. They are also allowed many other rights such as the ability to make decisions for their partner who is being hospitalized and have the right to sue on their behalf and cannot be forced to testify against them in court. Married couples also pay less in taxes and receive many other social and financial benefits.
Because gay couples are legally prevented from marrying, they are excluded from receiving the same considerations that married heterosexual couples enjoy (Eagle, 2006). This paper will more closely examine the benefits denied gay couples as well as the political and legal implications involved with the issue. It will conclude with a discussion involving one of the main non-religious based reasoning that those who oppose gay marriage espouse and the affect of this type of living arrangement on the children of the relationship.
Constitutional Responsibility
The U.S. Constitution guarantees a republican form of government in which elected officials are intended to set social policy for the nation. Legislators do this by representing their constituents' moral views when drafting laws. Because the Constitution bars the intertwining of state and religion, the only method of ensuring that moral and ethical codes are enforced throughout society is through acts of legislation. In fact, lawmakers draft laws that address moral issues constantly and not just in high profile matters such as abortion, pornography and gay rights. When courts determine morality issues, they counteract legislation meant to protect the moral fabric of society and break down the constitutionally guaranteed separation of powers within the government. "When judges erode the power of the people's representatives to set society's moral compass, they likewise undercut the authority of parents, schools, and other community groups to set the standards they would like to see their children and fellow citizens live by. Indeed, it is a frontal assault on community values writ large" (Raul, 2003).
Advocates of non-traditional marriage counter this argument by saying that there is no constitutional basis for denying legal matrimony to gay couples. They go further by arguing that the Constitution not only legitimizes gay marriage but implies that the government should never have considered a ban and actively pursue legalizing gay marriage. As citizens of the United States, all people are guaranteed the inalienable right to pursue happiness. It does not exclude on the basis of sexual preference. The government was originally formed as an entity meant to champion the rights of the individual whether they are on the majority or minority side of public opinion. Laws that were enacted in the South disallowed the marriage between black and white people but were struck down by the Supreme Court and in 1964 the Civil Rights Act followed the tenets of the Constitution by prohibiting discrimination. The opposition to gay marriage is based on prejudice and, as time passes, the concept will become more and more accepted. It, like racial prejudice, will become socially abhorrent. In addition, the disallowing of gay marriage by legislation violates the Due Process Clause of the Fifth Amendment. According to the American Civil Liberties Union, "The law [against same-sex marriage] discriminates on the basis of sex because it makes one's ability to marry depend on one's gender." The ACLU continues by saying, "Classifications which discriminate on the basis of gender must be substantially related to some important government purpose. Tradition by itself is not an important government purpose" (American Civil Liberties Union, 1996).
The Movement Toward Civil Unions
According to a Washington Post/ABC News poll, about 60 percent of Americans oppose gay marriage. However, the same poll found that 53 percent were against a constitutional amendment outlawing the lawful acknowledgment of same-sex unions ("Civil Unions", 2004). This sentiment has been reflected by some legislators such as those in the State of Connecticut who oppose same-sex marriage but support civil unions. Gay rights activists had heavily lobbied lawmakers in an effort to legalize gay marriage, but they compromised on a civil union bill when support for marriage was rejected by most. A Republican governor, M. Jodi Rell, signed the bill in 2005 making Connecticut the second state to offer gays and lesbians civil unions after Vermont. This law provided all the legal privileges of marriage. Other states, such as California, offer various rights under domestic-partnership laws but not full rights. Rell explained that she signed the bill because she was opposed to discrimination in any form. While Connecticut gay rights activist groups applauded state lawmakers, they expressed displeasure that the law fell short of offering a comprehensive equivalence of marriage and that they would persist in their efforts to "work toward the day when there are not two lines at town hall, one for them and one for us" (Simmons, 2005).
In Oregon, voters passed a constitutional amendment that banned gay marriage which reversed more than 3,000 marriage licenses issued to gay and lesbian couples. An Oregon Supreme Court ruling which upheld the amendment also left open the option of civil unions. The day prior to the ruling, a bipartisan group of state legislators drafted a bill that would allow civil unions, a measure which was backed by Governor Ted Kulongoski. The Governor admitted that the bill "may be a little ahead of its time," but also believed that progressive social change would "soon make legal protection for same-sex relationships a reality in Oregon, if not immediately through marriage" (Simmons, 2005). Although many couples who had their marriage annulled by the Supreme Court were disappointed, many were pragmatic about the situation and reluctantly accepted the idea of civil unions believing that, as did those in the Civil Rights Movement of the 1960's, 'separate but equal' will ultimately be rejected by the majority of the people. Many previously married gay couples admit however that social change doesn't happen overnight.
The City Council of Washington D.C. is has been struggling for years over how the city should acknowledge the union of gay couples. Councilman Jim Graham, a gay Democrat, is considering the introduction of a bill to legalize same-sex marriage. Although gay residents of the city were thankful for the intentions of the council, they feared the proposed actions would bring forth the wrath and subsequent retribution of the GOP-led Congress. The actions of the Washington D.C. City Council, unlike any other cities, are partially controlled by the U.S. Congress which maintains veto power over any bills passed by the Council. Congress would undoubtedly deny a bill legalizing gay marriage and may 'punish' the city by using their powers to further suppress this type of legislation.
Congress withheld funding for a decade that the city needed to implement a 1992 D.C. law which recognized domestic partnerships. In an attempt to adopt a practical rather than unworkable bill, Washington D.C. City Councilman David Catania put forth a bill that would provide a broader range of legal privileges to domestic partnerships. His bill would establish alimony provisions when partnerships have ended and grant powers of attorney and immunity from testifying against one another, the same as married couples. According to Catania, "We should be taking important steps forward that are sustainable and that do not generate a response that would eviscerate all our advances" (Heil, 2006).
Playing Politics with the Gay Marriage Issue
In 2006, the Senate rejected a Constitutional amendment that specifically banned gay marriage by a 49-48 vote. It was not expected to pass and would have certainly died in the House of Representatives. The vote had nothing to do with amending the Constitution. The proceedings were for purely political purposes. Republican Senator John McCain voted against the amendment, as did other Republicans. They evidently thought that it wasn't obligatory to pander to their conservative constituents. "Perhaps Sen. McCain could ignite the middle enough to really make a change. If nothing else, that might get both the Democrats and Republicans off their pandering to the extremes and start paying attention to the majority of us" (Tucker, 2006). Unfavorable polling numbers have Republicans trying to rally their base by showing public support for this emotional issue. In many presidential elections such as the improbable George Bush win of 2000, Republican strategists put forth the notion that their candidate was of higher moral character than the opponent. As proof, the GOP introduced amendment to the U.S. and strategic State Constitutions such as Ohio to ban gay marriage; a measure they knew was doomed to fail but was an effective emotional instigator for their base constituency (Jones, 2004). This successful strategy drew a clear line in the sand for voters which no true evangelical Christian dared to cross. "Even if Jesus set up a blogging cafe in the center of Rockport, Texas and extolled the virtues of a woman's right to choose while snapping pictures of gay weddings with his Nokia, it would have made no difference to this election" (Vance, 2004). The American press focused on the emotionally charged, sensationalistic 'moral values' aspect of the campaign which only intensified the conservatives resolve in their convictions. It was the Economist, a British publication, that bothered to check the facts when it reported that "the percentage of American voters citing moral and ethical values as their prime concern is actually down" from previous elections ("The Triumph", 2004). Percent of Survey Respondents Who Support Giving The Following Rights And Benefits To Same-Sex Couples:
All Adults Women Age 25-29 College Grads
Hospital visitation rights 71% 75% 86% 79%
Emergency Health-care Authority 66% 71% 76% 75%
Joint Property Rights 60% 66% 72% 66%
Estate Inheritance Rights 59% 63% 73% 66%
Social Security Survivor Benefits 48% 54% 64% 54%
Source: Fetto, 2002/2003
This strategy worked again for President Bush in the 2004 election and those trying to keep their jobs on the Hill have learned well from him. The Republican tactic was to put gay-marriage bans on the ballot in each state so as to get more conservative voters to the polls. In Ohio, the key state in Bush's victory, this strategy worked by drawing more voters to the polls even though the ban was entirely unnecessary because gay marriage was already banned by state law. Opponents of gay marriage claim that legalizing it will serve to endorse homosexuality however; the number of gay people will hardly change in either direction simply because of legislation (Tucker, 2006).
Benefits for gay partnerships
In 1997, the General Accounting Office reported that heterosexual married couples enjoyed more than 1000 benefits and protections. These marriage incentives range from survivor benefits through Social Security, the ability to take sick leave from work to care for a sick partner, federal and state tax breaks and veteran and insurance benefits. They also include things like "family discounts, obtaining family insurance through your employer, visiting your spouse in the hospital and making medical decisions if your partner is unable to" (Belge, 2006).
Following the enactment of the Defense of Marriage Acts (DOMA), an amendment added to many state's constitutional definition of marriage, many lawsuits have been filed all over the country against local and state governments whether or not they offer health insurance and other benefits to their employees' unmarried domestic partners. DOMA prohibits the state governments from providing benefits to a dependent in a relationship that does not comply with the state's constitutional definition of marriage. Both the American Civil Liberties Union (ACLU) and Gay-rights groups disagree with these amendments.
Shortly after Alaska adopted a similar marriage amendment in 1998, the Alaska ACLU took the State to court on behalf of several gay couples who had a partner employed by the state. The suit claimed that the government practiced institutional discrimination by disallowing benefits to employees' partners because those same benefits were offered to the heterosexual partners of state employees. The ACLU lost in trial court but in 2005, the state Supreme Court overturned the lower court's decision. The court ruled that "the benefit system is discriminatory because benefits are extended to employees' married partners and because same-sex couples are constitutionally barred in the state from marrying" (Gentile, 2006).
Hundreds of state workers and their partners lost their health benefit coverage when the Michigan legislature passed a marriage amendment in 2004. A September 2005 court trial decided that healthcare benefits for spouses are benefits of employment, not marriage, but a court of appeals issued an injunction on the ruling. "Hopefully the court of appeals will affirm that decision, but in the meantime, people who lost their health insurance still can't have it back," said Carrie Evans, state legislative director for the Human Rights Campaign based in Washington D.C. (Gentile, 2006).
Representing the other side of the issue, the Scottsdale, Arizona-based Alliance Defense Fund (ADF) has filed suits in an attempt to prevent domestic partnership benefits in many cities and states. "In general, we see domestic partnership benefits as a backdoor way to weaken marriage," said Chris Stovall, ADF senior legal council (Gentile, 2006). In September of 2005, the ADF went to court in opposition to an executive order by Salt Lake City Mayor Rocky Anderson which amended the city's health insurance contracts to include domestic partners of unmarried city employees. Utah's DOMA prohibits government from enacting any law that creates a legal status equivalent to marriage. "In that case, [Anderson's] actions were a direct effort to create a legal status that mirrors marriage," Stovall says, adding that "Anderson's actions violated the state constitution" (Gentile, 2006). Today, 13 states offer health insurance benefits to domestic partners of unmarried employees.
Gay Couples Raising Children
Those opposed to gay marriage believe that these relationships do not serve the best interest of the state. Since they cannot bear children that would ultimately add to the tax base of a community, there is no incentive for the state to recognize their union and provide them the benefits of marriage, an expensive burden to the state. Advocates of gay marriage have not been able to show what financial benefit their marriage would be to the state. "If sexual love alone becomes the primary purpose of marriage rather than procreation, the restriction of marriage to couples loses its logical basis, leading to marital chaos" (Kolasinksi, 2004). The marriage laws, established by the state, ensure that the couples who do get the benefits of marriage are those who benefit the state by having children.
Those that oppose gay marriage have yet to provide evidence that children of gay couples whether biological or adopted are harmed by this living arrangement. Some have expressed fears that these children will be more likely to become homosexuals suggesting that it would be appalling if that were the situation (Sullivan & Baques, 1999). In today's world, the fact is that most children do not live in 'Leave it to Beaver' type households with a housewife and a father who works at the office from nine to five. 25 percent of children are born out-of-wedlock to single women who are predominately young and impoverished according to Bureau of Census statistics. Half of all marriages end in divorce and 'traditional' married couples with children comprise just 26 percent of U.S. families. "It is unrealistic to pretend that children can only be successfully reared in an idealized concept of family, the product of nostalgia for a time long past" ("Social Norms", 1999).
Constitutional Responsibility
The Movement Toward Civil Union
Playing Politics with the Gay Marriage Issue
Benefits for gay partnerships
Gay Couples Raising Children

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