Gay Marriage This Work Reports

Gay Marriage

This work reports research through qualitative review of literature relevant to the critical analysis of gay marriage and an analysis that takes place on many levels and in many aspects relating to the gay individual, political and societal factors, and finally the factors of illegality and the impact upon children of these gay parents. This study finds that this is a highly charged emotional and religious issue and that governance of marriage between gay individuals should merely be in the form of ensuring no discrimination exists toward these individuals either in their right to marry or in any other or different form of discrimination.

GAY MARRIAGE

Annotated Bibliography

Hymowitz, Kay S. (2004) Gay Marriage vs. American Marriage. 2004 Summer CITY. Online available at http://www.city-journal.org/html/14_3_gay_marriage.html

Hymowitz takes a look at 'gay' marriage as compared to the traditional and idealist view of 'American Marriage. Hymowitz asks if marriage is "a sacramental union" or is it a "public recognition of a committed love relationship? " (2004) Hymowitz posits that marriage might even be a "state scheme for distributing health and insurance tax breaks..." (2004) and she notes that 'whatever' marriage precisely may be it is a "startling diversity of socially approved forms of marriage" existing, therefore, appearing as an institution "...too varied to fit into a single, dictionary-neat meaning..." (2004)

2) Same-sex marriages (SSM),(2008) Civil Unions and Domestic Partnerships. Religious Tolerance. Online available at http://www.religioustolerance.org/hom_marr.htm

This work states of marriage that it is "...a basic human right and an individual personal choice." (2008)

3) Nishimoto, Ryan (2003) Marriage Makes Cents: How Law & Economics Justifies Same-Sex Marriage" Boston Journal 2003. Online available at http://www.bc.edu/schools/law/lawreviews/meta-elements/journals/bctwj/23_2/06_FMS.htm

It is stated by Nishimoto (2003) in this work that law and economics both propose: "...legal rules which are to be established and reviewed in light of fundamental economic principles. Underlying these economic principles is the assumption that people strive to maximize their utility from a set of preferences. These preferences are chosen by accumulating an optimal amount of information from a variety of sources. Simply defined, economics can be understood as rational choice, in which resources are limited in relation to human desires. Rational choice, however, need not be conscious; it merely predicts that one will choose means to achieve ends at the least possible cost." Hymowitz shares the fact that the development of the idea of romantic love in the U.S. came at the time of the American Revolution and the new Western seriousness about romantic love "which both sprang from a heightened valuation of the ideal of self-determination." (2004)

4) Ledsham, Benjamin M (nd) Means to Legitimate Ends: Same-Sex Marriage Through the Lens of Illegitimacy-Based Discrimination. Cardazo Law Review Vol 28:5,. Online available at http://www.cardozolawreview.com/PastIssues/28.5_Ledsham.pdf

Ledsham states in this work published in the Cardazo Law Review "Between one and fourteen million American children have a gay or lesbian parent. Some number of these children are the children of two gay or lesbian parents." (nd) Children of these couples are "financially and legally less secure than children of married couples..." (Ledsham, nd) to deny gay individuals to enter into contractual marriage is to deny their children of legitimacy stability and financial security and in fact perpetrates "financial and legal violence" upon the children of these individuals. (Ledsham, nd)

5) Smith, Miriam (2005) Explaining Human Rights Protections: Institutionalist Analysis in the Lesbian and Gay Rights Case. Paper prepared for presentation at the Annual Meeting of the Canadian Political Science Association, University of Western Ontario, London, Ontario, June 2-4, 2005. Online available at http://www.cpsa-acsp.ca/papers-2005/smith,%20miriam.pdf

Smith (2005) states of Canada and the United States that: "...These two countries share a common history, language, culture, legal roots, and religious heritage and have undergone substantial social change since the 1960s. With the rise of the women's movement and the increased participation of women in the labor force, both countries have witnessed important changes in family forms and gender relations. In both cases, the gay liberation and women's movements of the late sixties and early seventies gave rise to the modern lesbian and gay rights movement, focused on securing liberal citizenship rights for lesbian and gay people." (Smith, 2005)

GAY MARRIAGE

STATEMENT of THESIS

There are some private aspects in the lives of individuals that a court of law or adjudication or governance has a right to intrude upon and one of these private life aspects is that of marriage and yet, when gay marriage is addressed it is always pro-or con gay marriage debate that ensures.

INTRODUCTION

Marriage is an agreement, contract, covenant, partnership, or whatever term that is applied in each individual couple's schemata of what marriage is to portray and most importantly marriage is generally between two people and is based on many things with one of the most popular views being that marriage is based upon love between two individuals. Other views are that people marry for connections or upward mobility and among the powerful and rich in order to perpetuate the wealth and status. The point is that marriage is a very private contract between human beings and it is highly questionable as whether this should be addressed as an issue of morality within the law.

The debate surrounding gay marriage is one often opposed with emotional, religious conviction, or even drama but is an issue that should be debated in a most rational manner as the primary reason that law should attempt to govern this issue would be for the operational processes of administration of government. With this in mind, this work turns to focus on 'gay marriage' or marriage between two individuals of the same sex. Gay marriage rides across the waves of public debate and matters of law reaching a crescendo only to fall back down again from public view until another publicly acknowledged event or item piques the interest again for those enthralled in this debate.

LITERATURE REVIEW

The work entitled: "Same-sex marriages (SSM), Civil Unions & Domestic Partnerships" published by Ontario Consultants on Religious Tolerance states that marriage "is a basic human right and an individual personal choice, Resolved, the State should not interfere with same-gender couples who choose to marry and share fully and equally in the rights, responsibilities and commitment of civil marriage." (the Marriage Resolution by the Marriage project of Lambda Legal Defense and Education Fund.," 2008)

The work of Hymowitz entitled: "Gay Marriage vs. American Marriage" states that strong opinions are the norm in relation to marriage although "no one seems to be sure what it is, exactly." (2004) Hymowitz asks if marriage is "a sacramental union" or is it a "public recognition of a committed love relationship? " (2004) Hymowitz posits that marriage might even be a "state scheme for distributing health and insurance tax breaks..." (2004) and she notes that 'whatever' marriage precisely may be it is a "startling diversity of socially approved forms of marriage" existing, therefore, appearing as an institution "...too varied to fit into a single, dictionary-neat meaning..." (2004)

Hymowitz goes on to relate the anthropological fact that there are many aspects of marriage that vary from one culture and society to another. For instance, in some societies, polygamy is accepted and in other societies, the woman leaves her home to go to the family of her husbands while among other cultures the precise opposite is true because the maternal is the hierarchical superior in the genetics of the family and in terms of the status within the family unit. In the American society, the family is deeply rooted even across all the diversity that comprises 'Americans' and due to the fundamental nature of marriage n the United States and even universally in terms of fundamental beliefs, gay marriage is "...a non-sequitur" (Hymowitz, 2004) Hymowitz notes that the concept and ideal of 'family' may be found in the very foundations of the United States and it is noted that James Wilson, member of the Continental Congress and then a Supreme Court Justice stated:

To the institution of marriage the true origin of society must be traced." (as cited in Hymowitz, 2004) Hymowitz notes that in the founding of the ideals of self-government what had previous been a "matter of caste, class or clan..." became termed as "courtship" which was more aligned with the spirit of "bartering [rather than] romantic in nature in that marriage was a method of trade among the aging in an attempt to "solidify...family ties and merging family fortunes and acres." (2004)

During the last part of the 18th century the emphasis of Western Europe in the issue of marriage was the ideal of a 'love-match' between two self-determining individuals." (2004) Within this view young individuals were not restricted in any way whatsoever in making the choice of their life partner and certain principles were held to be superior and more worthy in pursuit of marriage. In other words, it was better to marry for other than merely sexual attraction. It was the desire of those who founded the United States of America to "...clear away many of the traditions that had kept these democratic notions from taking firm hold in old Europe. American marriage would reflect American principles of liberty and self-government. Unlike the hordes of serfs, servants, and subjects in other parts of the world, American citizens were going to shape their own lives and determine their country's destiny. Just as citizens would be self-governing in the political realm, they would also choose their spouses freely." (Hymowitz, 2004)

Hymowitz shares the fact that the development of the idea of romantic love in the U.S. came at the time of the American Revolution and the new Western seriousness about romantic love "which both sprang from a heightened valuation of the ideal of self-determination." (2004) in the attempt to understand the precise biological nature of gender this work has reviewed the work of Patricia Nell Warren entitled; 'Gender, Gay Marriage...and Galileo" who state the fact that science has discovered that not all women have DNA that is XX and in fact there is a "vast range of variations...there are 47 XXY's and 47 XXXY's and XO's and XXYY's." (Warren, 2008) Warren relates a 1999 case in the 4th Texas Court of Appeals in a decision which is now case law and specifically the case of Littleton v. Prang in which Judge Hardberger wrote in his opinion that "unchangeable XX and XY sex chromosomes...are the basis of legal definitions of gender." (Warren, 2008)

The work of Nishimoto (2003) entitled: "Marriage Makes Cents: How Law & Economics Justifies Same-Sex Marriage" published in Boston College Student Journal reports a book review of "The Gay Rights Question in Contemporary American Law" written by Andrew Koppelman." Nishimoto states that the debates surrounding marriage between homosexuals "evoke visceral emotions. Religious views, stereotypes and social pressures all contribute to the negative preconceptions of gay men and lesbians and the public discourse on homosexuality has long been dominated by disgust, confusion and ignorance. Thus efforts of gay men and lesbians to seek legal recognition and validation for their relationships have been faced with hostility, largely derived from these negative cultural attitudes, rather than from any internal logic." (Nishimoto, 2003)

Nishimoto goes on to relate that law and economics both propose: "...legal rules which are to be established and reviewed in light of fundamental economic principles. Underlying these economic principles is the assumption that people strive to maximize their utility from a set of preferences. These preferences are chosen by accumulating an optimal amount of information from a variety of sources. Simply defined, economics can be understood as rational choice, in which resources are limited in relation to human desires. Rational choice, however, need not be conscious; it merely predicts that one will choose means to achieve ends at the least possible cost." (Nishimoto, 2003)

It is the conclusion of theorists in law and economics that generally the outcome of government intervention is negative in nature because "such intervention is inherently flawed." (Nishimoto, 2003; paraphrased) Nishimoto states that individuals are much better off in making personal decisions without government intervention. Nishimoto relates that marriage is a relationship that is 'contractual' in nature meaning that marriage, "...falls within laws and economics analysis." (2003) Marriage, very similar to the marketplace, allows for individuals to contract "for maximum utility"...and therefore, Nishimoto states that "proponents of law and economics regularly view marriage through the economic lens.

Unfortunately with same-sex marriage, law and economics theorists have been unjustifiably reluctant to make the application." (Nishimoto, 2003) the point that Nishimoto stresses is that if "same-sex marriage creates benefits that outweigh its externalities, then law and economics must advocate its recognition." (2006) Nishimoto states that this is however, not the sole analysis that must be made when approaching the debate of gay marriage issues. Nishimoto goes on to report a cost analysis of the lack of legal status of those who enter into gay marriage where it is not legalized in nature. First, there are the issues of personal property if one of the parties dies intestate. Secondly, a serious issue is that of children adopted by one of the partners in a gay marriage as although the remaining partner when the partner with legal custody dies, not matter how long having parented the child is not seen as having any legal rights whatsoever to the custody of the child.