Policy argument on gay marriage: annotated bibliography

Gay Marriage

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 benefits that the states themselves give to heterosexual married couples. Many gay-rights activists, however, argue the status of civil unions nonetheless causes the public to perceive their commitments to be less than those of married people. Supporters, on the other hand, defend them as the best deal gay couples are likely to get in states resistant to gay marriage (Mach and Stepney: 2f.). Grant nearly all or some state-level spousal rights to unmarried couples (domestic partnerships): While similar to marriage, a domestic partnership does not necessarily grant the 1,138 rights afforded to married couples in the U.S. By the federal government, as tallied by the United States Government Accountability Office. Furthermore, domestic partnerships are determined by each state or local jurisdiction, so there is no nationwide consistency on the rights, responsibilities and benefits afforded to domestic partners (Mach: 3f.). Have constitutional amendments that define marriage as between a man and a woman: Twenty-eight states have amended their constitutions to make gay marriage illegal, most of them explicitly defining marriage as between one man and one woman, according to "Lambda Legal," an advocacy group for gay rights (Mach: 4). A burst of such constitutional amendments came in the late 1990s and early 2000s, as a backlash to a ruling by Hawaii's Supreme Court that recognized "different-sex-only" marriages. Some of these amendments also specify that the state is not obligated to recognize same-sex unions licensed in other states. For example, Mississippi's constitutional amendment reads: "Marriage may take place and may be valid under the laws of this state only between a man and a woman. A marriage in another state or foreign jurisdiction between persons of the same gender, regardless of when the marriage took place, may not be recognized in this state and is void and unenforceable under the laws of this state" (Mach: 5). Have laws that define marriage as between a man and a woman: Eleven states have opted to go the legislative route in support of traditional marriage, enacting laws rather than amending their constitutions (Mach: 6).

3. Propose the solution and make specific recommendations of the procedures that will lead to the solution while explaining how they will do

The solution I would propose is threefold. First, get all groups get involved in the matter (politicians in support of legal recognition gay marriages, churches, NGOs, human rights organizations, gay and lesbian activists groups)) and make them aware of the problem that gay (and lesbian) couples on the federal and many states' level are denied their constitutional right of equal protection when not allowed to marry. Second, make voters aware of the injustice coming along with denying gay (and lesbian) persons the right to marry. Third, gay and lesbians should bring to court that they are denied their right of equal protection under the U.S. Constitution and many states' constitutions. All this would eventually sensibilize the federal and (many) state legislator(s) of the problem and eventually lead to passing laws legalizing gay (and lesbian) marriage on the federal level and the remaining states' level that do not legally recognize gay (and lesbian) marriage. The most recent example that this strategy would be successful comes from California which has a long and complicated history regarding the issue of gay marriage. California voters rejected gay marriage in 2008 but in February 2012

a dramatic change occurred. "An accelerating shift is under way among California voters on gay marriage, with 59% now in favor of allowing it, a new Field Poll suggests. That's up from 49% in 2009. Registered voters in California approve of same-sex marriage by the biggest margin in 35 years of tracking, with 59% favoring full marriage rights for gay and lesbian couples, according to a Field Poll released in February 2012. The poll suggests a significant and accelerating shift is under way among the state's voters concerning one of the most divisive social issues in the country. Gay rights activists point to the results as a harbinger of victories to come (Richey: 1). "With 59% of Californians now in favor of marriage equality, including nearly half of those over 60, the writing is on the wall," said Rick Jacobs, founder of the gay rights group Courage Campaign (Richey: 1). The survey asked voters if they approved or disapproved of California allowing homosexuals to marry members of their own sex and have regular marriage laws apply to them. Thirty-four percent of respondents said they disapproved, while 59% said they approved. Seven percent expressed no opinion. The California-based Field Research Group has been polling the gay marriage issue since 1977. That year the poll results showed 28% of California voters approving gay marriage and 59% opposed. The 2012 results show the lowest disapproval rating and highest approval rating since the polls began (Richey: 2). "This division of sentiment is nearly a complete reversal of the findings from the first time The Field Poll began measuring Californians' attitudes toward same-sex marriage," the poll report says. The survey of 1,003 registered California voters was conducted between Feb. 2 and 18. It has a margin of error of 4.5 percentage points. The polling firm also asked voters to select one of three preferences on same-sex relationships. The options were to allow same-sex couples to marry; to allow civil unions only; and to bar any legal recognition. When the options were first offered in 2006, 36% of respondents expressed a preference to allow same-sex marriage. This year, 51% chose that option. In addition, 29% favored civil unions, and 15% would allow no legal recognition. Five percent of those surveyed expressed no opinion (Richey: 2). The survey showed that even among groups with majorities opposed to gay marriage, the opposition is diminishing. In 2010, 66% of Republicans and 72% of conservatives said they opposed gay marriage. In 2012, 55% of Republicans and 63% of conservatives said they opposed gay marriage. In 2010, Californians 65 and older opposed gay marriage 42% to 51%. In 2012, the same group split 45-45 on the issue" (Richey: 2).

This is truly a big success for gay persons and I think a very well deserved one! Gay and lesbian couples - just as their heterosexual counterparts -- love! Two people of the same sex can certainly share the same deep love with each other than two people of opposite sex. Denying same-sex couples the right to marry stigmatizes gay and lesbian couples! It is simply no one else's business if two men or two women want to get married. Why deny the gay and lesbian couples the right to publicly celebrate their commitment and receive the same benefits of marriage as opposite sex couples?

I really very much welcome that in Californian courts there is a strong trend towards recognizing gay marriage. In my opinion, this trend has to be seen against the strong voter support tied to the trial and appeals seeking to overturn Proposition 8. Proposition 8 was a voter-approved initiative which amended the California state constitution to ban gay marriage. This provision was passed in November 2008. About two years later, a federal district judge ruled that Proposition 8 violated the equal protection provisions of the U.S. Constitution. The decision was appealed, and the Ninth U.S. Circuit Court of Appeals ruled on February 7, 2012 that the ban violated the Constitution, but has postponed enforcement pending appeal. California does not currently allow same-sex marriages to be performed, however same-sex marriages performed before Proposition 8 was passed remain valid (Mach: 7).

4. Consider opposing arguments and make sure you answer them