Many same-sex couples want to be granted the right to legally marry. The reason is simple: They are in love with each other. They want to honor their relationship in the greatest way society has to offer, by making a public commitment to stand together in good times and bad life brings. While they receive some state-level protections, they do not receive most of the federal emotional and economic benefits and protections of marriage. They are denied their right to equal protection, both under the U.S. Constitution and some state constitutions. The paper will point out that supporting gay marriage by means of legal recognition is the most appropriate form of recognition of same sex partnerships because it eliminates discrimination occurring on the federal and some states' level. Referring to state court decisions of 2009 and 2012 and the well-known 2003 Lawrence vs. Texas decision of the Supreme Court, the paper will show that the currently very mixed picture regarding the legality of same sex marriage on the federal and (some) states' level urgently requires a solution by means of a nationwide legal recognition of the phenomenon. In its final part it will introduce opposing arguments and reasons on how to encounter them.
1. Clearly designate the problem that the policy you recommend or reject addresses
I would recommend the policy of legal recognition of gay marriages as the most appropriate form of recognition of same sex partnerships. The reason is that gay persons do not enjoy most of the federal and state emotional and economic benefits that come with marriage and are thus discriminated. There are two state court rulings from 2009 and one federal appeals court decision of 2012 to support this opinion. Even more important, there also is a Supreme Court decision of 2003 suggesting that - while the gay marriage controversy has many elements, including disagreements over religious and social norms - much of the debate is a purely legal one.
On May 21, 2009, the California Supreme Court closed another chapter in the state's long-running fight over same-sex marriage when it upheld a 2008 voter-approved ballot initiative, known as Proposition 8, which amended the California state constitution to ban gay marriage. A month earlier, on April 27, 2009, the Iowa Supreme Court had unanimously ruled that a state law defining marriage solely as a union between a man and a woman violated the Iowa Constitution's guarantee of equal protection (Masci and Merriam: 1). Most important in that regard is a famous decision of the United States Supreme Court of 2003 that marked a decisive turning point in the history of lesbians and gay men in the United States. In June 2003, the Supreme Court issued a landmark rule in the case of Lawrence vs. Texas that extended the right to privacy -- which includes the right to make decisions about one's intimate life -- to lesbians and gay men. The decision was hailed - and denounced -- as a sign of the dramatic shift in attitudes toward lesbian and gays. Just seventeen years earlier in its Bowers vs. Hardwick ruling, the court had dismissed the claim that anybody had a right to engage in homosexual activities as "facetious." In Lawrence, Justice Anthony Kennedy embraced the "liberty" of gay people to form relationships "whether or not [they are] entitled to formal recognition in the law," and condemned the Bowers decision for "for demean[ing] the lives of homosexual persons" (Chauncey: 1).
The most recent court decision in this series of decisions addressing the unconstitutionality of denying gay persons the right to marry is an early February 2012 ruling by a federal appeals court in California -- that the so called "Proposition 8," the ban on same-sex marriage, is unconstitutional. The decision reveals that gay marriage in the U.S. is more than just a black and white issue. Officially, the federal government does not recognize same-sex marriage, but some individual states do. And plenty more have laws or constitutional amendments that offer limited rights to same-sex couples (Match: 1).
Legal recognition would address the problem of discrimination that gay persons have to face in society (see Hill: 1). While it may not be readily apparent, marriage comes with a host of legal benefits and rights ranging from the ability to collect Social Security survivor's benefits to the right not to have to testify against a spouse in court
(Chapter 1: 1). According to the Government Accounting Office, there are 1,049 federal statutes which confer legal rights or benefits on married couples. But note that this number is limited to federal law, and each state has its own unique body of law which extends additional rights to married couples. In Massachusetts, for example, over 500 state statutes provide benefits for married couples beyond the 1,049 already provided by the federal government (Chapter 1: 2). All these benefits and rights can be subdivided into two main groups:
Emotional benefits: Emotional benefits are primarily next of kin rights in relation to the death or illness of a partner. They include the right to visit a patient in intensive care and to take bereavement and family care leave, the automatic award of guardianship, which provides the power to give medical consent and control of other affairs, and the ability to authorize organ donation and postmortem, to request an inquest with a jury, and to claim for psychological/psychiatric injury following the death or injury of a partner. Other emotional benefits include the ability to claim exemption in relation to giving evidence against a partner and the right to be considered for protection in relation to bail applications (Hill: 2). Emotional benefits are primarily afforded to members of heterosexual couples on the basis that they have an emotionally significant relationship (Hill: 2).
Economic benefits: Economic benefits consist of legal rights of access to the courts in relation to financial matters arising from the partnership, such as the right to challenge a deceased partner's will and access to provisions of the Family Law Act 1975 or de facto relationship legislation on the breakdown of the relationship. Currently, economic benefits are awarded on the same basis as the majority of emotional benefits, that is, the participation of the individual in an emotionally significant heterosexual relationship (Hill: 2). Economic benefits are also attributed to partners in a heterosexual relationship primarily on the basis of participation in an emotionally significant relationship (Hill: 3).
The denial of these rights to gay and lesbian couples is no academic matter -- it has palpable consequences in everyday lives. Take, for example, the case of Holly Gunner, who began advocating for the right to marry when she came to realize that, in the eyes of the law, lifelong gay and lesbian couples could be treated as little more than roommates (Chapter 1: 2). "Following the death of Eileen, her partner of fifteen years, Holly discovered that she did not have the legal authority to carry out Eileen's wishes to be cremated. In fact, she came to discover that doctors could even have barred her from seeing her dying spouse in the hospital. At work, Holly was not permitted to take bereavement leave. Then she was forced to pay taxes on Eileen's property without any benefit of a marital tax deduction, and to make matters worse, even though Holly inherited most of Eileen's estate, Eileen's family refused to permit her to be the administrator of the estate. As if this wasn't [sic] all galling enough," Holly later told a reporter, "it was happening at the most painful, awful time in my life."
The consequences that will ensue if the problem is not solved by legal recognition of gay marriage are that gay persons will stay in the factual position of being
- unjustifiably - denied from the above-mentioned groups of rights and benefits that heterosexual persons enjoy. To put it in more drastic words: They would be denied from a basic human right: The right to marry. One could say they would be denied from the right to equal protection granted under the Constitution!
2. Spell out the consequences that will ensue if the problem is not solved and any reasons that make the need for a solution especially pressing
The need for a solution of these problems by legal recognition of gay marriages in all states and on the federal level is especially pressing because by now states currently stand on different positions on gay marriage in the following areas (Mach and Stepney: 1): Issue marriage licenses to same sex couples: Marriage licenses issued to same sex couples in these states carry identical benefits and rights of heterosexual married couples (Mach: 1f. ): Maryland (2012); Washington (2012); New York (2011); New Hampshire (2010); District of Columbia (2010); Iowa (2009); Vermont (2009); Connecticut (2008); Massachusetts (2004). Allow civil unions, providing state-level spousal rights to same-sex couples: Civil unions provide gay couples with the legal standing of marriage, and states that allow them extend to same-sex couples the rights, protections, responsibilities, and…