FREE ESSAY ON SAME - SEX MARRIAGE

SAME - SEX MARRIAGE

INTRODUCTION:
The institution of marriage is highly respected and holds great sentimental value for
most societies. However, not all couples are afforded the right to be legally recognized
as a married couple. Couples of the same-sex are denied the right to have their marriages
be legal in the eyes of the law. Same-sex marriage is an important issue because it deals
with a relatively large minority of the United States. Gays and lesbians are rumored to
be about ten percent of today's population. I am just one of the many that fit into this
contested minority group. Some people in society feel that I should never be given the
opportunity to benefit from a marriage, as an opposite-sex couple will. I feel marriage
is my natural born right handed down to me by my constitution. So quickly society forgets
that I am a citizen of America as much as anyone else. Whether it is by choice or
biologically decided, who a person loves does not determine the amount of rights they are
given. 
The issue of same-sex marriage is highly controversial and I suspect will remain so for
many more years. The issue of same-sex marriage is combined with several contrasted
views. These views include morals, family values, religion; and those of equality,
constitutionality, and right to privacy. I do not plan to argue for any views which are
based merely on opinion, only those views that hold legal precedence. Some believe
marriage is a privilege, not a right. This is a misconception. Marriage is very much a
civil right and I plan to prove this by using creditable legal resources. The United
States Supreme Court has cast down many judgements on the topic of marriage, just as the
Constitution affords the right of marriage. The issue should not be dealing with the
legalization of same-sex marriages, rather the issue is the recognition of same-sex
marriages. Same-sex couples have and will continue to enter into marriage. Couples are
being married within the eyes of certain churches already, just not in the eyes of their
government. 
THE HISTORY OF MARRIAGE:
Historically, marriage has always been between a man and a woman. This is not only the
definition in the dictionary, but also the definition the law uses when denying a
same-sex couple the right to a recognized civil marriage. The Random House Webster's
Legal Dictionary defines marriage as, the legal relationship of husband and wife, entered
into in conformity with state law and carrying various rights and duties imposed by law
(1996, pp.162). Marriage is considered a separate institution, unique of it's own. The
institution of marriage is a very respected one, and holds much sentimental value for
many people. The institution of marriage was based on a patriarchal system, and until
recently has remained so over time. Paula Ettlebrick claims that marriage is steeped in a
patriarchal system that looks to ownership, property, and dominance of men over women as
its basis (1997, pp. 164). Marriage originally was created to ensure financial stability
and was arranged from early childhood. It was not based on love. Parents would arrange
the marriage so that the families would join and prosper from the merger. This is why it
was extremely important for the wealthy to marry. Not only was money a basis of marriage,
but also reproduction.
Child bearing has always been an important issue associated with marriage. Historically,
men joined woman only for the purpose of producing offspring. The thought was that the
male legacy must continue through time. This is why men keep their last names and women
change theirs. Originally in society, marriage was a privilege most people received, not
a right. For a great deal of time society argued civil marriages between same-sex couples
could not be honored due to the fact that the couple would not be able to produce
children. Society and it's court system can no longer depend on the argument that
marriage can not be without procreation. For if this were the case, many heterosexual
marriages could not be acknowledged by the government. This is because many couples
choose not to have children or physically can't reproduce (American Civil Liberties
Union, 1998). Through time society's views on marriage have slowly changed. The concepts
of marriage being based on procreation, dowry, and the patriarchal system of marriage in
general, have begun to break down.
MARRIAGE AND THE FAMILY:
Today marriage has changed to focus on the legal and economic benefits afforded to
married couples. When homosexuals claim that marriage is a civil rights issue, they are
referring to the fact that rights in the form of benefits are being denied to them due to
their sexual orientation. These rights include the right to be acknowledged within
society as a family. Society values those who have formed families of the social
stability and productivity such groups provide. A family may be described as a unit of
interdependent and interacting persons, related together over time by strong social and
emotional bonds (Random House Webster's Legal Dictionary, 1996). Its central purpose is
to create, maintain and promote the social, mental, physical and emotional development,
and well being of each of its members. Same-sex couples form the same kind of family
structures, but they are excluded from being recognized by the law.
The legal status of marriage rewards the two individuals with substantial economic and
practical advantages. The American Civil Liberties Union believes that, Marriage is a
critically important institution because it is the only vehicle our society has for
recognizing the existence of primary relationships not defined by blood (1996, pp. 3).
Legal marriage is designed to protect intimacy in the relationship. It does this through
offering the rights of medical decision-making, medical insurance, joint tax returns,
inheritance of money and property, social security for surviving spouse and dependants,
child custody, immunity from testifying against spouse, etc... (American Civil Liberties
Union, 1996). It is very much a civil right issue. It is not a matter of special rights
to ask for the same rights that other couples enjoy by law, even by constitutional
mandate. Marriage is an institution long recognized by our government under the right to
pursue happiness. Denying the right of marriage to any couple, regardless of sex, is
unconstitutional. 
UNITED STATES SUPREME COURT OPINIONS:
The Supreme Court of the United States has long recognized that the institution of
marriage is one of the rights guaranteed to all Americans by our Constitution. The Court
declared this to hold true in the case of Zablocki v. Redhail, were they acknowledged,
Marriage is one of the 'basic civil rights of man,' fundamental to our very existence and
survival (1978, pp. 3). The Court has heard many cases involving the issue of marriage,
but they have not heard any cases directly involving the issue of same-sex marriage.
Therefore, many advocates for the recognition of civil marriage between same-sex couples
must rely on general cases of marriage decided by the Court. Opponents of the
legalization of same-sex marriage often argue that because gay men and lesbians are not
going to spawn children, they do not deserve the rights of marriage. 
An extremely important case brought before the Court was that dealing with marital
procreation. On June 7, 1965, in the case of Griswold v. Connecticut, the Supreme Court
of the United States declared that marriage is not based on procreation. The American
Civil Liberties Union, in a Memorandum, briefs the case by stating [the] right of marital
privacy prohibits government from interfering with efforts to actively avoid procreation
(1998, pp. 4). The decision in this case directly throws out the argument that marriage
can be defined by procreation. In the case of Cleveland Board of Education v. LaFleur,
the Supreme Court said, This Court has long recognized that freedom of personal choice in
matters of marriage and family life is one of the liberties protected by the Due Process
Clause of the Fourteenth Amendment (1974, pp.2). Even though this case primarily deals
with state maternity laws, the Court continued to take notice on the importance of
marriage and personal choice.
The most significant case referring to marital rights is that of Loving v. Virginia,
which dealt with interracial marriages. Up until the decision of the Court, interracial
marriage was illegal in many states. The Court found that by denying an interracial
couple the fundamental right to marry, the state was denying them equal protection of the
laws which is afforded to them by the Fourteenth Amendment (Loving v. Virginia, 1967).
Loving v. Virginia was a landmark case in the history of marriage in the United States.
The Court declared that marriage was an equal right of all people and did not have room
for discrimination (Loving v. Virginia, 1967). As that may be, state's continue to
restrict society in marriage, though it is no longer about skin color, but sex of a
person. This is blatantly a civil rights issue. The denial of same-sex marriage is a form
of discrimination and which the Court has explicitly stated is unconstitutional. 
In Romer v. Evans the Court finally explores the topic of homosexuality. This case
primarily dealt with discrimination within a Colorado State Amendment. The Court held
that Amendment 2 of Colorado's Constitution violates the Equal Protection Clause of the
Fourteenth Amendment (Romer v. Evans, 1996). The opinion of the Court is as follows, This
disqualification of a class of persons from the right to obtain specific protection from
the law is unprecedented and is itself a denial of equal protection in the most literal
sense (Romer v. Evans, 1996, pp. 4). The Court continues on to say that Amendment 2 is a
status-based classification of persons undertaken for it's own sake, something the Equal
Protection Clause does not permit (Romer v. Evans, 1996, pp. 4). This case is the very
basis for the argumentation on recognizing marriage between same-sex couples. Due to the
fact that by state's denying same-sex couple's the benefits of marriage, they are denying
them equal protection of the laws. 
FEDERAL LAW:
We now know that the Supreme Court of the United States has expressed that marriage is a
fundamental right and that when the government passes a law that interferes with
marriage, they are infringing upon citizens constitutional rights. Congress has blatantly
ignored the Court and approved a bill, the Defense of Marriage Act (DOMA), which allows
states to decide whether or not to recognize homosexual marriages (Policy. Com, 1999).
The two main purposes of DOMA are to define marriage and to give the states the ability
to have their own policy on whether or not the state will recognize same sex marriage
(Defense of Marriage Act of 1996). The new definition of marriage by the Federal
government now reads as: the word marriage means only a legal union between one man and
one woman as husband and wife, and the word spouse refers only to a person of the
opposite sex who is a husband or wife, (Defense of Marriage Act of 1996, pp. 1). DOMA
also states that each state shall have the power over whether they choose to, or not to,
recognize same-sex marriages from other state's (Defense of Marriage Act of 1996). 
The Partners Task Force for Gay & Lesbian Couples finds that with the passing of DOMA,
same-sex couples are being denied over 1,049 federal laws that are granted by the Federal
government through marriage (2000, pp. 1). Basically, what DOMA has done is taken away
any Federal protection for gays and lesbians who seek to have their marriages legally
recognized. This is obviously a civil rights issue. The United States of America has
declared that same-sex civil marriage is not valid in our country, even though our
Court's and our Constitution explicitly say other wise. DOMA is comparable to the
Colorado Amendment 2, in that it refers to one specific group of society. Using the facts
of the United States Supreme Court in Romer v. Evans, DOMA is a violation of our
constitutional rights. 
In Article Four, Section One of the Constitution the Full Faith and Credit Clause states,
Full Faith and Credit shall be given in each State to the public Acts, Records, and
judicial Proceedings of every other State. And the congress may by general Laws prescribe
the manner in which such Acts, Records, and Proceedings shall be proved, and the Effect
thereof, (Kersch, 1996, p.123). What this means is that if a person or group of people,
have a record in one state, it is valid in all states. If they receive a license of any
kind in one state, it is upheld in the other states as well. It also notes that congress
has the right to define the effect in which one state's laws act upon another state
(Kersch, 1996). This is not meant to take away all of the state's rights, just that the
state has to present reasons why it will not accept another states laws. DOMA takes away
that aspect of the Full Faith and Credit Clause. The normal rule for interstate marriage
is to uphold the marriage as long as it is valid where it was originally celebrated
(Kersch, 1996). The Full Faith and Credit Clause keeps states from selectively
discriminating based on how desirable or obnoxious the other states policy is. Thus a
state could not apply an ostensibly non-content-based marriage evasion statute only to
same-sex marriages, (Kramer, 1997, pp. 1967). 
Section One of the Fourteenth Amendment of the Constitution states: '...No state shall
make or enforce any law which shall abridge the privileges or immunities of citizens of
the United States; nor shall any State deprive any person of life, liberty, or property,
without due process of the law; nor deny to any person within its jurisdiction the equal
protection of the laws.' This means that a state government cannot make a law which
denies someone his or her rights. It is a same-sex couples right to liberty and the
pursuit of happiness which is being denied by DOMA. 
According to the Full Faith and Credit clause of the Constitution, all of the states must
recognize a license valid in one state as valid in theirs (Kersch, 1996). The Defense of
Marriage Act negates this, but only in the case of same-sex marriages. DOMA does not
proclaim that all marriages are up to the state to value, only ones between homosexuals.
This is discrimination pure and simple, which makes this a civil rights issue. If
congress made a law stating that states do not have to recognize other state's marriages
involving two people of the same race, there would be an uproar. This is exactly what
congress has done, except by way of homosexuals. 
STATE STATUTES:
All Americans are born with equal rights under the constitution, therefore sexual
orientation should not be an exclusion to these rights. However, in many states anti
same-sex marriage recognition statutes are being passed. By society voting on and passing
the statutes, they are voicing their opinion that they are not ready to recognize
marriage between same-sex couples. This is apparent by the growing numbers of states that
are adding anti-recognition of same-sex marriages into law. Lynn Bartels, a writer for
the Rocky Mountain News, specifies that currently there are thirty-three states that have
implemented statutes specifically stating that same-sex marriage will not be honored
(2000). 
The reason state's are passing anti-recognition statutes, is due to the fear of other
states possibly recognizing same-sex marriages. If this happens then any state without a
recognition statute in law would be obligated to honor the marriage. The passage of DOMA
triggered off a wide spread of anti-recognition statutes across the state's. The Federal
government now made it legal for state's to pass such statutes without fear of being
sanctioned by the law. The Lambda Legal Defense feels that these State and Federal
anti-marriage bills are unconstitutional, divisive, wrong, and cruel (2000, pp.1). 
RECENT CHANGES:
The recent blow up of anti recognition statutes and passing of DOMA stems from a court
case in Hawaii. In 1990, three Hawaiian couples went to court stating that denying them
the right to obtain marriage licenses is discriminatory (Sullivan, 1997). The lower
division court in Hawaii ruled in the case of Baehr v. Miike, that denying same-sex
couples the right to obtain a marriage license is sex discrimination and violates their
civil rights (Sullivan, 1997). Due to the overwhelming opponent response the case was
appealed in the Supreme Court of Hawaii (American Civil Liberties Union, 2000). While the
Supreme Court of Hawaii was hearing arguments for the case, opponents of same-sex
marriage found a way to get an anti recognition statute on the ballot. The state of
Hawaii passed the statute and the Court had no alternative but to deny the recognition of
same-sex marriages (American Civil Liberties Union, 2000). However, the case in Hawaii
still had an enormous impact on many other states. 
While the case in Hawaii was in litigation for more than six years, many other states
began to panic. The biggest scare to anti-same-sex advocates came in 1998 when the case
of Baker v. The State of Vermont was heard by the Vermont Supreme Court (Partners Task
Force for Gay and Lesbian Couples, 1999). The argument by the petitioners was the same
argument that has always encompassed same-sex marriage. However, the outcome this time
was very different. After the Court's ruling, state after state began joining the ban
wagon of anti-recognition statutes, including my home state of Colorado (Newsum, 2000).
However, Vermont did not legalize same-sex marriage, they offered an alternative called
civil union. 
As of December 20, 1999 the state of Vermont has opened the door for same-sex unions
(National Gay and Lesbian Task Force, 1999). Basically, Vermont has decided that same-sex
couples must be given the same rights as opposite-sex married couples. The Supreme Court
of Vermont ruled that denying same-sex couples the same rights and protections as
opposite-sex couples is unconstitutional and inhumane (National Gay and Lesbian Task
Force, 1999). Therefore, the Court ordered the legislature to draw up a plan that would
offer exactly the same benefits and rights to same-sex couples, as opposite-sex couples
are afforded. The legislature did as the Court said and decided on the label of civil
union. Civil union provides same-sex couples with the same benefits as opposite-sex
married couples, such as inheritance rights, tax privileges, medical decisions, and so on
(National Gay and Lesbian Task Force, 1999). Vermont issues county licenses to these
partners and they are recognized in the eyes of the state. 
The passing of civil union required changing over 300 statutes in Vermont (Gender Talk
Radio, 2000). Every statute that expressed anything to do with marriage, now also states
civil union as well. With civil union, same-sex couples get their protection and
benefits, as opposite-sex couples get to keep their marriage word. Bill Lippert, Vermont
state representative and vice chair of the house judiciary committee, is the only openly
gay member of the state house of representatives and was interviewed by Gender Talk
Radio. Lippert was an advocate for same-sex marriage when it was brought in front of the
Vermont Court and pushed the committee to incorporate the word 'marriage'. However, he
claims to be happy that benefits would finally be afforded to same-sex couples, even if
it isn't called marriage (Gender Talk Radio, 2000). Even though the state of Vermont
recognizes the civil union of same-sex partners, it is still too early to know whether or
not other states will recognize the unions. 
CONCLUSION:
Vermont is the first to ever legalize marriage benefits to same-sex couples. What society
fails to see is that the argument to legalize same-sex marriage is invalid mainly because
it is already legal. Each individual person interprets the law differently and may do so.
Through my research I believe same-sex marriage is legal due to Supreme Court opinions,
Full Faith and Credit Clause, and most importantly our Constitution. It should no longer
be an argument on whether same-sex marriage should be legalized, but rather, should it be
recognized by the law. Under our constitution, every law abiding citizen must receive
equal protection under the law. This means that America can not simply deny rights based
on sexual orientation because it violates equal protection. 
The Defense of Marriage Act is a violation of equal protection and as such is
unconstitutional. According to the Full Faith and Credit clause of the Constitution, all
of the states must recognize a license valid in one state as valid in theirs. The United
States Supreme Court has made clear that marriage is a fundamental right and that
discrimination by classes is unconstitutional. However, as Americans we continue to
contradict ourselves through our laws. Our nation was built and has always been based on
the fundamental principles of freedom expressed in the Declaration of Independence and
through our Constitution. 
The opponents of homosexual marriage need to remember what freedom means to America and
understand the significance of setting a precedent that denies that freedom. Any
African-American should understand the importance of upholding the fundamental beliefs on
which America was based. It was these fundamental beliefs that abolished slavery, and
called for equal rights. Any woman should understand the importance of upholding these
fundamental beliefs. It was these beliefs that have worked toward ending woman's
suffrage. Any parent, any working man, any American, should understand the importance of
our fundamental beliefs. Without them, there is a never-endeding list of atrocities that
could be committed: cruel and unusual punishment, sweatshop labor, unsafe work standards,
unfair work practices, and on and on. To deny any one of our beliefs even once, sets a
precedent for them to be denied again and again, to anyone. Without our constitutional
rights, America simply would not be the free nation that it is today. 
Bibliography
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