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Points In Defense of Gay Marriage

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.

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 (  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 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 guaranteed?

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:

"Consider this.  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)  “As conservatives 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) 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. 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. 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. 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. 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. 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 3/14/01]
(2) Andrew Sullivan, senior editor at The New Republic, 5/8/00. ["Why ‘civil union’ isn't marriage." downloaded 2/14/01]
(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, 1997]
(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.  Lexis-Nexis 3/27/01]

Why 'civil union' isn't marriage
Study indicating that homosexuality may be geneticly influenced
Lesbian and Gay Marriage through History and Culture
Independent Gay Forum
The Gay and Lesbian Review
Gay and Lesbian Advocates and Defenders
Civil Rites:Arguments against same-sex marriage mirror those that kept the races apart

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.