ARGUMENTS FOR SAME SEX MARRIAGE

ARGUMENTS FOR SAME SEX MARRIAGE

Preliminarily, it is important to state that most of the arguments in support of same sex marriage are hinged on the concepts of freedom, equality and fundamental human rights.

Before 1969, the notion of a same-sex couple entering into state sanctioned marriage seemed culturally and legally implausible in America. The Stonewall riots[1] changed all that, however, as gay men, lesbians, and bisexuals came out of the closet in substantial numbers. As part of this demand for acknowledgment or acceptance, many activists sought legal recognition of same-sex marriages on the same terms as different-sex marriages, as part of a general movement to end all forms of state discrimination against lesbians, gay men, and bisexuals.

For over forty years, gay activists have confronted the legal system mainly the courts--demanding that it end its discrimination against same-sex marriages. Three types of arguments have been made in support of these demands[2].

First, state refusal to recognize same-sex marriages violates the right to marry, which the Supreme Court inferred from the Due Process Clause in Loving v. Virginia[3]. In this case, the Supreme Court invalidated state laws prohibiting different-race marriages in response to arguments that they violated African Americans' right to equal protection and interracial couples' due process right to marry.

Other courts, like the Pennsylvania Supreme Court, expressed wonderment at God’s plan.

“Why the Creator made one white and the other black, we do not know; but the fact is apparent, and the races are distinct, each producing its own kind and following the peculiar law of its constitution. . . . The natural law, which forbids their intermarriage and that amalgamation which leads to the corruption of races, is as clearly divine as that which imparted to them different natures[4].”

Courts considered race restrictions part of the very definition of marriage, decreed by “God himself[5].” Here is the Oklahoma Supreme Court’s rationale:

“Statutes forbidding inter-marriage by the white and black races were without doubt dictated by wise statesmanship, and have a broad and solid foundation in enlightened policy, sustained by sound reason and common sense. The amalgamation of the races is not only unnatural, but is always productive of deplorable results[6].”

These were the reasoned judgments of respected jurists across America. The Virginia Supreme Court upheld the law the Supreme Court later struck down in Loving out of a concern that interracial marriage would “corrupt the blood,” and lead to a “mongrel breed of citizens.”[7] One court opined that “offspring of these unnatural connections are generally sickly and effeminate”[8]. Perhaps the strangest argument came from a judge on the Missouri Supreme Court, who said, “if the issue of a black man and a white woman, and a white man and a black woman, intermarry, they cannot possibly have any progeny, and such a fact sufficiently justifies those laws which forbid the intermarriage of blacks and whites”[9]. The relationship between interracial marriage and same sex marriage is simply that the fact that the former was abhorrent but was later seen to be an unjustifiable hindrance to people’s right to marry as was seen in the laudable judgement given in Loving v. Virginia. The same can be opined for same sex marriage which is seen from the lens of morality to be against the laws of nature but invariably will give way to acceptance around the globe in the nearest future by reason of human rights arguments.

Like the sex discrimination argument, this claim can sometimes be asserted on the basis of statutory as well as constitutional rights. A number of jurisdictions have enacted human rights statutes that broadly prohibit discriminating against lesbians, gay men, and bisexuals on the basis of their sexual orientation.[10]"

The main argument against same-sex marriage is definitional: marriage is necessarily different-sex and therefore cannot include same sex couples. Hence, the authors of any statute that talks of "marriage" could have only contemplated different-sex couples, even if the statute is not gendered, i.e., does not use the specific terms "husband" and "wife." Typical is the Kentucky Court of Appeals' discussion in Jones v. Hallahan[11]: Kentucky statutes do not specifically prohibit marriage between persons of the same sex nor do they authorize the issuance of a marriage license to such persons[12].

The above arguments explaining why interracial marriages should not be allowed seems almost synonymous with the arguments used against legalizing same sex marriage. Advocates of same sex marriage explain that judges in the past had shown great ignorance in their banning of interracial marriage and they believe that it is this same ignorance and even fear that prevents judges and by implication the law from completely legalizing same sex marriage worldwide.

In addition, advocates of same sex marriage claim that the arguments by courts stating that allowing same-sex couples to marry will destabilize heterosexual marriage is a baseless argument. To these courts, the fact that same-sex couples maintain stable relationships and display exemplary parenting skills is irrelevant and their sole concern is to ensure that heterosexuals get married and stay married. These courts believe this can be achieved by banning same-sex marriage yet they fail to realize that courts banning interracial marriage a half-century ago made the same argument about “destabilizing” marriage makes its use today even more dubious.[13]

So far as the opponents of same-sex marriage are concerned, what is important here is their beliefs. It has not been suggested that any objective harm will befall any person if same sex couples are permitted to marry. Instead, it is asserted that if same-sex couples are allowed to marry, this will diminish the importance of marriage in some people’s minds. In their opinion marriage will become less sacred, less noble, less valuable, less desirable a state, if gays and lesbians are admitted to the institution. This argument quite clearly exposes the assumptions of the opponents of same-sex marriage. In their opinion, homosexual relationships are not sacred, they are not noble, they are not valuable, they are not desirable, and it therefore debases marriage to admit same sex couples to “the institution of marriage.”[14] By explaining this, advocates of same sex marriage have shown that it is not enough to sacrifice homosexual’s right and freedom to marry simply on the altar of the opinion of others.

Also, advocates of same sex marriage have completely rejected the arguments made by the opposition that same-sex marriage does not exist because marriage is defined as the union of a man and a woman and that same sex marriage is a nonsensical concept, an impossible arrangement, one that is beyond the mind of man to comprehend; analogous, to a “square circle”[15]. Advocates have explained that this argument is purely semantic in that it is entirely based upon a traditional understanding of the meaning of the word “marriage,” which is an assumption that the supporters of same-sex marriage do not share. This argument amounts to no more than the commonplace observation, “In the past, marriage has been understood to be the union of a man and a woman.” However, advocates of same sex marriage explain that heterosexual and homosexual unions are based on love and commitment, and because of this, gay and lesbian relationships must be accorded the same respect as heterosexual relationships[16].

Advocates have also explained that religion and tradition must as a matter of necessity be divorced from the same sex marriage argument. Fundamental rights cannot be defined solely by tradition and religion. The fact that the governing majority in a state has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice. Religious norms are equally insufficient to support secular legislation. Appeals to traditional moral or religious beliefs are not enough to support the ban on same sex marriage in any jurisdiction[17].

Advocates of same sex marriage also assert that it is unfounded to claim that children raised in same sex marriage homes would become maladjusted and exhibit deviant behavior. The American Psychological Association, in 1995, concluded that the research indicates that children raised by gay parent(s) are not “disadvantaged in any significant respect relative to the children of heterosexual parents.”[18]In the one study that followed children raised from birth into adulthood by a gay parent(s), the young adults did not differ from the young adults raised in heterosexual families, with respect to employment, ability to find and relate to partners, or in their general sense of well-being.[19]

The vast majority of children in all the studies functioned well intellectually, did not engage in self-destructive behaviour or in any behavior harmful to the community. In these regards, as well as in general well-being, they did not look different from their counterparts with heterosexual parents. The studies also find that children raised by gay male and lesbian parents get along as well with their parents and peers as children raised in heterosexual families[20]. The research finds no differences between these groups of children in self-esteem or in characteristics such as leadership ability, self-reliance, interpersonal flexibility, and self-confidence. In a few studies, the children in same-sex households even seemed to have higher levels of wellbeing in some respects than the comparison group of children from heterosexual families[21]. Thus proving that homosexuals are as capable as heterosexuals when it comes to raising children.

Advocates of same sex marriage explain that concerns that marriage was changing in ways that foretold societal disaster have been made for centuries, especially when changes to the rules regulating the structure of marriage or who could marry were being contemplated. For example, historically marriage meant that the woman was subsumed in the man; her property became his and he had the right to control all family decisions. In the 1800’s, both England and the United States began enacting laws designed to make marriage into a partnership of legally equal partners[22]. As these changes were being considered, it was not unusual for opponents to predict catastrophe. When England was considering letting wives own property, The Times of London wrote that doing so would “abolish families in the old sense” and “break up society into men and women” creating “discomfort, ill-feeling, and distrust where hitherto harmony and concord prevailed”.[23]

When New York State was considering the same change, a legislator argued that his colleagues must remember

“the complexity and fragility of marriage as a social institution.... If any single thing should remain untouched by the hand of the reformer, it was the sacred institution of marriage which was about to be destroyed in one thoughtless blow that might produce change in all phases of domestic life.”[24]

These quotes shed light on the weight to be given various claims in the current debate. In debates about the family, there is a long history of strong resistance to any change.[25]

Advocates have explained that even for heterosexual couples, it is not true that the sole aim for getting married is to have children. Thus the argument that the only legitimate purpose of marriage is to channel procreation into stable units and that since same-sex couples cannot procreate, they should not be able to marry is completely irrational, or that only sexual relations designed to lead to procreation are morally acceptable and that marriage should be limited to those who engage in morally acceptable sexual relations cannot be accepted as a true reflection of reality[26].

Many of the couples who marry each year do not intend to have children, either because they are beyond the age at which the woman can bear a child, because one or both of the partners is infertile, or because the couple prefers to remain childless. Thus same sex marriage advocates explain that they should not be denied of their right to marry because that cannot reproduce naturally[27].

Sex discrimination against homosexuals by denying them the right to marry is a particularly powerful tool commonly used by advocates of same sex marriage. It has a logical strength that is easy to grasp: the laws at issue clearly use sex-based classifications in prescribing that a man may only marry a woman and that a woman may only marry a man. And this argument indeed sheds light on the hypocrisy of members of the public (and members of courts) who are not particularly concerned about discrimination against lesbians and gay men but care passionately about discrimination against women[28].

Laws that allow marriage only between a man and a woman, discriminate on its face by restricting an individual’s right to marry his or her chosen spouse purely on the basis of gender. That is, a man is not permitted to marry a man, but would be permitted to marry that same person if he were a woman. This is sex discrimination in every sense of it and advocates of same sex marriage believe that this discrimination must be stopped. [29]

Another cogent argument in support of gay marriage is the argument that homosexuals are first people, before they are homosexual and should not be denied the basic benefits and rights which marriage confers on people in general. For example, relying on its state constitution, the Massachusetts court embraced same-sex relationships based on the following analysis:

“Marriage is a vital social institution. The exclusive commitment of two individuals to each other nurtures love and mutual support; it brings stability to our society. For those who choose to marry, and for their children, marriage provides an abundance of legal, financial, and social benefits. In return it imposes weighty legal, financial, and social obligations. The question before us is whether, consistent with the Massachusetts Constitution, the Commonwealth may deny the protections, benefits, and obligations conferred by civil marriage to two individuals of the same sex who wish to marry. We conclude that it may not. The Massachusetts Constitution affirms the dignity and equality of all individuals. It forbids the creation of second-class citizens”.[30]

The rationale behind this argument is the belief that homosexuals, just as much as anybody else desire to be loved and also desire stability and authenticity in their relationships, and the law should not deny them of that. Indeed, when same-sex couples have the opportunity to get legally married, they run out and say, ‘I do,’ said M.V. Lee Badgett[31]. In contrast, civil unions and domestic partnerships are not viewed as having the same emotional weight, social approval and legal protections as marriage[32].

In addition, supporters of gay marriage have built their arguments around the concept of equality. It is generally believed that all men are created equal and based on this, it would be hypocritical to deny the rights of homosexuals to marry. Supporters argue that same sex couples should be awarded the same financial and medical benefits of heterosexual couples. For instance, only through marriage do same sex couples have access to a partner's insurance benefits, Social Security, Medicare, or property inheritance. As well, without a legally recognized marriage, gay partners cannot be acknowledged as next of kin in the case of a medical emergency or incapacitation. [33]

The discrimination against same sex couples seems to run contrary to principles of humanity and decency and to conflict with the spirit of international instruments which guarantee equality before the law and non discrimination.[34]

In a statement, Buenos Aires Mayor Mauricio Macri supported the union, saying, ‘the world is already moving in this direction’.[35] Tierra del Fuego Governor Fabiana Rios said in a statement that gay marriage "is an important advance in human rights and social inclusion and we are very happy that this has happened in our state[36].

In Belgium the Justice Minister Marc Verwilghen said:

"Mentalities have changed. There is no longer any reason not to open marriage to people of the same sex”.[37] Commenting on Canada’s 2005 legislation authorizing same-sex marriage[38], then-Prime Minister Paul Martin stated,

“In a nation of minorities, it is important that you don't cherry-pick rights. A right is a right”.[39] In ruling on the constitutionality of this legislation, Canada’s Supreme Court noted that "Recognition of same-sex marriage in several Canadian jurisdictions as well as two European countries belies the assertion that marriage is understood as only available to opposite sex couples[40].

In Netherlands, The Mayor of Amsterdam, who officiated at the first same-sex marriage ceremonies said,

"In the Netherlands, we have gained the insight that an institution as important as marriage should be open to everyone."

The Mayor also said that

“he said he believed the Dutch law would be a stimulus for other countries to reassess their views on gay marriages[41].”

In Sweden, the Minister of Integration and Gender Equality, whose very post suggests Sweden’s support of same-sex couples, noted in a speech:

“The universal declaration includes all people, no matter the sexual orientation…”[42]

.

[1] Op.cit in Chapter 2 of this research work. [2] For sources presenting the rights-oriented arguments, see Nan D. Hunter, Sherryl E. Michaelson & Thomas B. Stoddard, The Rights of Lesbians and Gay Men: The Basic ACLU Guide to a Gay Person's Rights 75-78 (3d ed. 1992); Alissa Friedman, The Necessity for State Recognition of Same-Sex Marriage: Constitutional Requirements and Evolving Notions of Family, 3 Berkeley Women's L.J. 134 (1987-88); Rhonda R. Rivera, Our Straight-Laced Judges: The Legal Position of Homosexual Persons in the United States, 30 Hastings L.J. 799, 874-78 (1979); Editors of the Harv. L. Rev., Sexual Orientation and the Law 95-101 (1990). [3] 388 U.S. 1 (1967). the Virginia trial court famously concluded, “Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix” [4] Phila. & W. Chester R.R. v. Miles, 2 Amer. Law Rev. 358, quoted in Green v. State, 58 Ala. 190, 1877 WL 1291, [5] State v. Gibson, 36 Ind. 389, 1871 WL 5021, *9 (Ind. 1871) (Marriage “is a public institution established by God himself.”). [6] Eggers v. Olson, 231 P. 483, 486 (1924), quoted in Perez v. Lippold, 198 P.2d 17, 41 (Cal. 1948) (Shenk, J., dissenting). [7] Naim v. Naim, 87 S.E.2d, 749, 756 (Va. 1955). [8] Scott v. State, 39 Ga. 321, 1869 WL 1667, 3 (Ga. 1869). [9] State v. Jackson, 80 Mo. 175, 179 (1883) [10] In the District of Columbia, for example, the Human Rights Act prohibits the government from discriminating on the basis of sexual orientation or from adopting policies that have a discriminatory effect upon sexual orientation minorities. See also the constitution of South Africa Act 108 of 1996 specifically Section 9(3). [11] 501 S.W.2d 588 (Ky. 1973). [12] Kentucky Constitution, Section 233A Only a marriage between one man and one woman shall be valid or recognized as a marriage in Kentucky. A legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized. Kentucky Revised Statutes Section 402.005 Definition of marriage. As used and recognized in the law of the Commonwealth, "marriage" refers only to the civil status, condition, or relation of one (1) man and one (1) woman united in law for life, for the discharge to each other and the community of the duties legally incumbent upon those whose association is founded on the distinction of sex. Section 402.020 Other prohibited marriages. (1) Marriage is prohibited and void: (d) Between members of the same sex; Section 402.040 Marriage in another state (1) If any resident of this state marries in another state, the marriage shall be valid here if valid in the state where solemnized, unless the marriage is against Kentucky public policy. (2) A marriage between members of the same sex is against Kentucky public policy and shall be subject to the prohibitions established in KRS 402.045. Section 402.045 Same-sex marriage in another jurisdiction void and unenforceable. (1) A marriage between members of the same sex which occurs in another jurisdiction shall be void in Kentucky. (2) Any rights granted by virtue of the marriage, or its termination, shall be unenforceable in Kentucky courts. [13] Gregory Johnson, We've Heard This Before: The Legacy Of Interracial Marriage Bans And The Implications For Today's Marriage Equality Debates. Vermont Law School Legal Studies Research Paper Series Research Paper No. 09-18. http://ssrn.com/abstract=1403915 Retrieved 8th July, 2015 [14] Wilson Ray Huhn, Fourteenth Amendment Protects the Right to Same-Sex Marriage. November 21, 2010 University Of Akron School Legal Studies Research Paper Series Research Paper No. 10-16 http://ssrn.com/abstract=1712723 Retrieved 8th July 2015 [15] ADF and GLAAD Square Off in Marriage Debate, www.alliancedefensefund.org/news/ April 12, 2005. Retrieved 11th July 2015 [16] Ibid. [17] Ibid. [18] American Psychological Association, “Lesbian and Gay Parenting: A Resource for Pscyhologists” (1995) http://www.apa.org/pi/parent.html . Retrieved 8th July 2015 [19] Julie S. Gottman, “Children of Gay and Lesbian Parents,” Vol. 14, Marriage and Family Review (1990), pp. 177-196 [20] Ibid in Julie S. Gottman, “Children of Gay and Lesbian Parents,” Vol. 14, Marriage and Family Review (1990). [21] Michael S. Wald., “ Same Sex Couples, Marriage, Families, And Children.” Stanford Law School Working Paper No. 12/99 http://papers.ssrn.com/paper.taf?abstract_id=203649 Retrieved 8th July 2015 [22] The Married Women property Act of 1870, 1882 and 1893 came about as a result of this. Women And The Law in Victorian England, www.st-andrews.ac.uk/~bp10/pvm/en3040/women.shtml Accessed 12 August 2015 [23] E. J. Graff, What is Marriage For? (Boston: Beacon Press, 1999), at p. 31 [24] Ibid [25] Op cit. [26] John M. Finnis, “Law, Morality, and ‘Sexual Orientation,’” Vol. 69, Notre Dame Law Rev. (1994), 1049-76, at 1064 [27] Op cit. [28] Susan Frelich Appleton, Same-Sex Couples: Defining Marriage in the Twenty-First Century: Missing in Action? Searching for Gender Talk in the Same-Sex Marriage Debate, 16 STAN. L. & POL’Y REV. 97, 124–26 (2005) [29] Deborah A. Widiss, Elizabeth L. Rosenblatt, Douglas NeJaime “Exposing Sex Stereotypes in Recent Same-Sex Marriage Jurisprudence”, Brooklyn Law School Legal Studies Accepted Paper Series Research Paper No. 91 November 2007 http://ssrn.com/abstract=1027732 Retrieved 8th July, 2015 [30] Goodridge v Department of Public Health 798 NE 2d 941 (2003) [31] An economist at the University of Massachusetts, Amherst [32] Christopher Munsey Psychology’s case for same-sex marriage .Monitor Staff. October 2010, Vol 41, No. 9 The Argument for and Against Gay Marriage http://www.datehookup.com/content-the-argument-for-and-against-gay-marriage.htm Retrieved 18th July, 2015 [33] The Argument for and Against Gay Marriage http://www.datehookup.com/content-the-argument-for-and-against-gay-marriage.html Retrieved 8th July, 2015 [34] Articles 2.1 and 26 of the International Covenant on Civil and Political Rights (“ICCPR”); and the right not to be subjected to arbitrary or unlawful interference with a person’s privacy and family in article 17.1 of the ICCPR. [35] Argentina Approves Latin America’s First Gay Marriage, THE SANTIAGO TIMES, Nov. 16, 2009, http://www.santiagotimes.cl/index.php?option=com_content&view=article&id=17625:argentina-approves-latinamericas [37] Same-Sex (homosexual) Marriage in Belgium, http://www.religioustolerance.org/hom_mar10.htm [38] The Civil Marriage Act 2005 passed into law on July 20, 2005. [39] Reasonable Rights, L.A. TIMES, July 6, 2005 at 12, available at 2005 WLNR 23329237. [40] Same-Sex Marriage, Re., [2004] 3 S.C.R. 698 (Can.). [41] Amsterdam Holds First Legal Gay Marriages, 4/2/01 INDEPENDENT (United Kingdom), April 2, 2001 (Pg. Unavail. Online), available on Westlaw at 2001 WLNR 7076913 [42] Nyamko Sabuni, Minister for Integration and Gender Equality, Speech at the Baltic Pride Festival in Riga, Latvia, (May 15, 2009) (transcript available at http://www.regeringen.se/sb/d/8811/a/127052 ). Retrieved 18th July, 2015