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.
The work of Benjamin G. Ledsham entitled: "Means to Legitimate Ends: Same-Sex Marriage Through the Lens of Illegitimacy-Based Discrimination" states: "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."
Children of these couples are "financially and legally less secure than children of married couples..."
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)
The work of Smith (2005) entitled: "Explaining Human Rights Protections: Instituionalist Analysis in the Lesbian and Gay Rights Case" presented at the Annual Meeting of the Canadian Political Science Association, meeting at the University of Western Ontario states:
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)
No matter how similar Canada and the United States may appear in the area of gay marriage rights Smith states that are "...profound differences in public policy outcomes in the lesbian and gay rights area in these two countries. While anti-discrimination measures have been solidly in place for ten years in most Canadian jurisdictions, such measures are non-existent in many U.S. jurisdictions." (Smith, 2005)
After having reviewed the available literature in this area of study this work has demonstrated that in many areas of life the individual who is gay is discriminated against. Therefore, in order to even begin to address the issues as set out in this work which include aspects of gay marriage, which however, has not been exhaustive in nature, it is necessary to identify the discriminatory nature of various areas of the life of the individual who is gay and in a gay relationship of a committed nature.
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
Same-sex marriages (SSM),(2008) Civil Unions and Domestic Partnerships. Religious Tolerance. Online available at http://www.religioustolerance.org/hom_marr.htm
Warren, Patricia Nell (2008) Gender, Gay Marriage...and Galileo" the Bilerico Project. 6 Feb. 2008. Online available at http://www.bilerico.com/2008/02/gender_gay_marriageand_galileo.php
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
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
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