This is a web site intended to educate
those interested as to some of the reasons for the legalization of gay
marriage and to provide the amateur gay rights activist or simply those
who wish to articulate their opinions more effectively in responses to
anti-gay marriage arguments.
Gay marriage should
be legalized in the United States. Gay couples are denied significant
rights when they are not allowed to marry, and this results in injustices.
The arguments against the legalization of same-sex marriage do not merit
the legal support of the state, since the state's job is not to promote
popular morality or opinion, but the rights of its citizens.
Rights denied to committed
The General Accounting
Office of the Federal Government in 1997, in a 75 page brief prepared for
the Chairman of the House Judiciary Committee enumerated some 1,049
laws giving rights to married heterosexual couples (http://www.marriageequality.com/facts/index.htm).
These rights are denied to gay couples. In an Editorial from March
of 2000, the New Jersey Law Journal gives some examples of rights denied
to committed same-sex couples(1). “Same sex couples who are prohibited
from marrying are excluded from a panoply of legal benefits specifically
tied to legally recognized marriage: for example, access to a spouse's
medical, life and disability insurance; hospital visitation and medical
decision-making privileges… workers' compensation survivor benefits; spousal
benefits under annuity and retirement plans…the right to refuse to testify
against one's spouse…” and many others. These instances of discrimination
based on the preference for legally married couples effect many people
negatively when they least expect it. Unmarried heterosexual couples,
however, have the option of being legally married. Same-sex couples
have no such recourse.
The Legal Precedent and
the Constitutional Case:
The closest parallel in
our legal history to the debate over gay marriage has been the miscegenation
laws of the 1950’s (Interracial
Marriages in America). These laws prevented interracial marriages
between whites and blacks. Hannah Arendt, a journalist and intellectual
of the ‘50’s and ‘60’s, as quoted by Andrew Sullivan in “Why civil union
isn't marriage,” (2) argued against the miscegenation laws, saying, “The
right to marry whoever one wishes is an elementary human right compared
to which the right to attend an integrated school, the right to sit where
one pleases on a bus, the right to go into any hotel or recreation area
or place of amusement, regardless of one's skin or color or race are minor
indeed. Even political rights, like the right to vote, and nearly all other
rights enumerated in the Constitution, are secondary to the inalienable
human rights to `life, liberty and the pursuit of happiness' ... and to
this category the right to home and marriage unquestionably belongs.”
Sullivan, senior editor at the New Republic, goes on to say, “Would any
heterosexual in America believe he had a right to pursue happiness if he
could not marry the person he loved? What would be more objectionable to
most people — to be denied a vote in the next presidential election or
to no longer have legal custody over their child or legal attachment to
their wife or husband? Not a close call.” This being said, can we
deny that the right to marriage - to whomever one might choose - is constitutionally
Keeping gay marriage
illegal also violates the Due Process Clause of the Fifth Amendment.
According to the American Civil Liberties Union in 1996, (3) “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 goes on to say, “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. If it were, sex discrimination would be quite
permissible; discrimination against women has a pedigree in tradition
at least as long and time honored as that of discrimination against same-sex
couples in marriage.”
Nowhere in the Declaration
of Independence or the Constitution is preservation of tradition cited
as a power or intention of our government. There is no constitutional
basis for denying gay couples marriage, and every constitutional reason
why our government should actively pursue legalizing gay marriage in order
to give gay men and lesbians their rights as equal citizens of the United
States and to ensure their inalienable right to the pursuit of happiness
that every American is guaranteed. Our government's purpose is to
defend the rights of the people, and in this instance our government has
undoubtedly failed in its duties.
At one time it was
considered perverted and unnatural for black and white people to want to
marry each other. Despite protests from the prejudiced, the Supreme
Court defended the rights of the people. Now who would say that a
black and a white should not be allowed to marry? It would be considered
the height of bad taste and racial prejudice. I am confident that
after gay marriage is legalized, it will soon be considered just as prejudiced
to say that they should not have that right as it is today to say that
different races should not marry.
Some responses to
anti-gay marriage arguments:
One of the first claims
that seems to come up when gay marriage is discussed is that homosexual
relations/relationships are not biologically natural. Same-sex couples
cannot naturally produce children through their union.
If there is a necessary link between marriage and procreation, strange
consequences would follow. A state could and, to be consistent, should
prohibit marriage in which one or both partners are sterile or impotent.
If procreation is the essential goal of marriage, why should postmenopausal
women be allowed to marry? Surely, discrimination against sterile,
impotent, or aged couples would be unacceptable to citizens of many different
perspectives. The rationale would be that marriage serves functions
that are as important as, if not more important than, procreation, including
interpersonal commitment, religious or moral expression, sexual satisfaction,
and the legal entitlements associated with spousehood. If elderly,
sterile, or impotent couples cannot be denied the right to marry because
of a traditional link between marriage and procreation, neither can lesbian
or gay couples be denied the right for that type of reason." (4)
Another popular argument
is that allowing gays to marry will further degrade the already struggling
institution of marriage.
tirelessly and rightly point out, marriage is society’s most fundamental
institution. To bar any class of people from marrying as they choose
is an extraordinary deprivation. When not so long ago it was illegal
in parts of America for blacks to marry whites, no one could claim that
this was a trivial disenfranchisement… To outweigh such a serious claim
it is not enough to say that gay marriage might lead to bad things.
Bad things happened as a result of legalizing contraception, but that did
not make it the wrong thing to do. Besides, it seems doubtful that
extending marriage to say, another 3 or 5 percent of the population would
have anything like the effects that no-fault divorce has had, to say nothing
of contraception. By now, the “traditional” understanding of marriage
has been sullied in all kinds of ways. It is hard to think of a bigger
affront to tradition for instance, than allowing married women to own property
independently of their husbands or allowing them to charge their husbands
with rape. Surely it is unfair to say that marriage may be reformed
for the sake of anyone and everyone except homosexuals, who must respect
the dictates of tradition.”(5)
Appeals to the tradition
of marriage are illogical.
The appeal to tradition
in denial of gay marriage rights has many inconsistencies. E.J. Graff,
author of What is Marriage For? in 1996 points out many of them.
He says “Very little about marriage is historically consistent enough to
be 'traditional.' That it involves two people? Then forget
the patriarch Jacob, whose two wives and two concubines produced the heads
of the twelve tribes. That it involves a religious blessing?
Not early Christian marriages, before marriage was a sacrament. That
it is recognized by law? Forget centuries of European prole “marriages”
conducted outside the law, in which no property was involved. That
it’s about love, not money? So much for centuries of negotiation
about medieval estates, bride-price, morning gift and dowry (not to mention
bride-burnings in today’s India).” (6) Every appeal to tradition
in preservation of the present marriage laws falls into the same pit of
illogically. Marriage has been different in each society throughout
the ages and throughout the history of the United States.
Even some conservatives
advocate the inclusion of gays in the marriage institution.
Mark Strasser, Professor
of Law at Capital University in 1999, along with many self-proclaimed conservative
advocates of gay marriage, argues that allowing gays to marry would increase
stability in gay relationships and discourage promiscuity in the gay population.
He says, “State interests in the recognition and promotion of marriage
include the promotion of stability, the limitation of the disorganized
breakdown of relations, and the provision of a home for the production
and rearing of children.” (7) You can't accuse gays of being promiscuous,
if you won't allow them access to an institution that, amoung other things,
works to limit promiscuity in society.
Many people, trying to
be tolerant, say that gays should have an institution for defining their
partnerships legally, but they don't want gays to be included in what they
see as the heterosexual-only institution of marriage. They want gay
marriage to be called something else, just to define it as different.
Here's the problem with the 'civil union' approach:
In Vermont a court recently
legalized not marriage for gays, but a “civil union” which affords same-sex
couples all the rights and privileges of married couples, but without calling
it “marriage.” While I applaud Vermont’s court system for this step
in the right direction, a new institution for gay couples is not the answer.
It simply affirms their second-class status in American society.
In the Supreme Court case Brown vs. The Board of Education, the policy
of “separate but equal” with regard to race was struck down as being unconstitutional,
because separate can never be equal. Creating a separate institution
for gay couples is just as unequal and unconstitutional as creating separate
institutions for blacks and whites.
Some claim that gay people
are not being discriminated against in any way. The argument often
sounds like this: Gay people are allowed to marry--they're allowed to marry
people of the opposite gender.
In response to this argument
I refer you again to the words of Andrew Sullivan (2): “Would any heterosexual
in America believe he had a right to pursue happiness if he could not marry
the person he loved? What would be more objectionable to most people —
to be denied a vote in the next presidential election or to no longer have
legal custody over their child or legal attachment to their wife or husband?"
In America we are granted, as an unalienable right, the right to pursue
our happiness. If we tell gay people that the only people they can
marry are those they aren't attracted to or can't love romantically, then
we are violating this right.
One of the better, less
bigotted arguments against gay marriage is that the advantages that go
along with legal marriage are not a right, but a reward given by our government
for behavior it approves of.
Our government was set
up from the very beginning, as an institution whose goal was the preservation
of the rights of its citizens. Nowhere in either the constitution
or the declaration of independence is there outlined a governmental responsibility
or power to reward behaviors the government or the masses like. Our
government’s job is to protect the rights of all of us, including those
of us that are gay, not to uphold the irrational prejudices of the masses,
as it is doing in this case. It is the government’s responsibility
not to uphold in this case the prejudiced will of the people, no matter
how much of a majority they constitute (and it's growing smaller every
day folks) but to defend the rights of its people. Period.
The concept of gays, even
committed gay couples, raising children seems to be anathema to many people.
There has never been any
evidence that children of gay couples (either biological or adopted) are
harmed by their environment. In many cases these children seem to
be more well adjusted than their "normally" raised counterparts.
From T. Richard Sullivan, PhD affiliated with the School of Social Work,
University of British Columbia, and Albert Baques, social worker with the
B.C. Ministry for Children and Families, 1999 we learn that “The assumption
that a gay and lesbian orientation is anathema to child rearing reflects
homophobia and the idealization of a particular family structure that is
assumed to be morally superior…[In fact though, research shows that]no
differences in well-being and normative functioning have been found between
children reared by heterosexuals and those raised by lesbian or gay parents.
'The fear that children raised by homosexuals will grow up to be lesbian
or gay suggests that it would be awful if that were the case. In
order to prove that they are worthy parents, lesbians and gay men have
had to prove that they are not likely to raise children who will grow up
to be like them' (Benkov). This despite the fact that studies of
over 300 offspring of gay or lesbian parents in twelve different samples
have indicated no evidence of significant disturbances in the development
of sexual identity.” (8)
In addition, common
evidence that children of gay couples are healthy and normal is that they
grow up to lead heterosexual lifestyles. What if you told a Christian
couple that it was bad if their children grew up to be Christians?
I doubt that would go over very well. But this is what gay couples
are told every day. The only way their children can be normal, can
prove that their parents haven't harmed them, is if they grow up to lead
a heterosexual lifestyle. Granted, many gay couples would never wish
their struggles against prejudice on their children, but telling them that
if their children grow up to be like them they are horrible parents--I
call that a subtle form of psychological torture.
The other problem with
assuming that heterosexual households are the superior environment for
raising children is this: "[Gay couples and their children] present family
units many in our society believe to be outside the mainstream of American
family life. The reality, however, is that most children today do not live
in so-called "traditional"…families with a stay-at-home mother and a father
who works from 9:00 to 5:00. According to Bureau of Census statistics,
twenty-five percent of children today are born out-of-wedlock to single
women, mostly young, minority, and impoverished; half of all marriages
end in divorce; and married couples with children now make up only twenty-six
percent of United States households. 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." (9)
Again, there is a conservative
argument in favor of allowing gay couples to not only raise their own children
without interferance, but to adopt children. Mark Strasser, Professor
of Law at Capital University in 1999 argues: “same-sex couples are having
and raising children, even if those children are not produced though their
union. Indeed, some states recognize both members of same-sex couples
as the legal parents of the same child, precisely because this will promote
the best interests of that child. Thus, some commentators’ claims
notwithstanding, the state’s interest in assuring that children will have
a healthy, supportive environment in which to thrive militates in favor
of the recognition of same-sex marriage rather than against it.” (7)
I hope that the arguments
I've provided here aid your efforts to bring understanding to the people
around you. The only way to achieve equality for these members of
our society is to fight to create change. In many cases, opinions
are changed one person at a time. Now you are armed against your
next encounter with the prejudiced and closed-minded. Below I provide
several links for those of you who want to investigate this issue further.
There's more evidence out there in support of this cause, and I wish I
could have included a more comprehensive list.
(1) New Jersey Law Journal Editorial, 3/6/00. [Lexis-Nexis, downloaded
(2) Andrew Sullivan, senior editor at The New Republic, 5/8/00. ["Why
‘civil union’ isn't marriage." http://www.indegayforum.org/articles/sullivan4.html
(3) American Civil Liberties Union, 1996. [Gay Marriage, Greenhaven
Press, California 1998, p14-15]
(4) William Eskridge, Jr, author of The Case for Same-Sex Marriage,
1996. [The Free Press, New York p. 96]
(5) Jonathan Rauch, author of Demosclerosis : The Silent Killer of
American Government May 1996. [“For Better or For Worse?” in Same-Sex Marriage:
A Reader, Pro and Con ed. by Andrew Sullivan, Vintage Books, New York,
(6) E.J. Graff, author of What is Marriage For?, 1996. [The Challenge
of Same-Sex Marriage, Praeger Publishers, Connecticut 1999 p175]
(7) Mark Strasser, Professor of Law at Capital University, 1999. [The
Challenge of Same-Sex Marriage, Praeger Publishers, Connecticut 1999 p175]
(8) T. Richard Sullivan and Albert Baques, 1999. [“Familism and the
Adoption Option for Gay and Lesbian Parents” in Queer Families, Common
Agendas, Haworth Press, NY p80-82]
(9) Columbia Law Review, April 1999. [Social Norms and Judicial
Decisionmaking: Examining the Role of Naratives in Same-Sex Adoption Cases.
Created by Leah Moore, student at Mary Washington College in Virginia,
USA, after extensive research on the subject of legalizing gay marriage.
posted 4/21/01. Credit for the background goes to Melissa Kittrell.