Same Sex Marriage the Challenge

Same Sex Marriage

The challenge of same sex marriage is an ongoing and almost intractable problem. Major hurdles are presented by the legal apparatus within the country as well as local jurisdictions. The government whether held by Republicans or Democrats has proceeded very slowly on the question of rights for same sex couples. Consequently many of the arguments against same sex marriage adopt a moralizing and religious tinge. The concrete definition of marriage does not provide ample latitude for the advance of counter arguments. The major change will ultimately occur within the social arena as the thread bare arguments are exposed and more robust positions take their place. The hope of same sex marriage lies in conceptualizing and arguing the issue as a right. In so doing opposition to same sex marriage is seen as removing from citizens a fundamental right protected by the constitution.

Same sex marriage

The issue of same sex marriage (SSM) is an emotional and highly provocative issue. Very often debates relating to SSM are mired in name calling and incendiary rhetoric. The major reason for that is that a vast majority of the society has not yet accepted homosexuality as a life style. The rejection of homosexuals as legitimate people adds fuel to the debate so that it is possible to deny individuals rights on the basis of sexual orientation. The anti-SSM fractions invoke many earth shaking scenarios that may occur if SSM is permitted, these are often not based in facts or even reality. SSM will eventually become the norm for American society not only because of the pressure for civil rights but because homosexuals are people like everyone else.

Same sex marriage involves the joining of individuals of the same sex in a union with the legal and social standing similar to that of the marriage of persons of the opposite sex. The support for SSM among Americans is growing. The support varies by age, political affiliation and religion. Younger people are more likely to be in favor of SSM while older persons are not. Persons who self-identify as Democrats or liberals are also more likely to support SSM whilst Republicans and conservatives are more likely to oppose SSM. The divide along religious lines is also presents a stark contrast as religious persons are more likely to oppose SSM than persons who do not identify with any particular religious group or organization.

The government has played a critical legislative role in advancing an agenda that limits the opportunities of same sex couples. The Federal Defense of Marriage Act (DOMA) enacted in 1996 presents a major legislative hurdle to SSM since it declares that marriage is the union of one man and one woman. It also gives states the right to ignore SSM conducted in other states. The DOMA is a model for at least 37 states that have similar legislation. The challenge of SSM therefore involves action to address federal law. The government by its action has created a situation where persons are discriminated against based on sexual orientation. This discrimination is unfortunately enshrined within the law.

Since the enactment of DOMA a number of state supreme courts have ruled that laws prohibiting SSM are essentially unconstitutional. Prior to DOMA the Hawaii Supreme Court determined that the laws preventing SSM was a violation of the constitution of the state. The Massachusetts Supreme Court adopted that clear position in 2003. It also clearly noted that the creation of civil unions is a form of segregation. This form of segregation does not adequately advance the governments agenda of enduring that all citizens have equal rights and treatment under the law. The pattern has been however that state supreme courts would declare the laws unconstitutional but the constitution of the state would be adjusted to protect marriage between one man and one woman.

At the level of the state SSM has met with stern resistance in the legislative halls. However, in other jurisdictions progress has been made; in Massachusetts same sex couples can be issued a marriage license. States like New York will recognize SSM from other states. In California domestic partnerships receive all state benefits. This encouraging picture was blurred with the passage of proposition 8 in California in 2008. Proposition 8 amended the constitution and defined marriage as the union of one man and one woman. This law was challenged in federal court and the judge ruled that the law was unconstitutional as it violated the right of citizens to equal protection under the law.

The arguments advanced on both sides of the debate require consideration and brief analysis. The arguments against SSM will be explored first and then the supportive arguments will be considered. A major pillar of opposition to same SSM comes from the belief that marriage is a religious ceremony through which special grace is remitted to the participants. The argument suggests that if the definition of marriage were to include same sex unions religious persons would be placed in a disadvantageous position of having to violate their religious convictions to accommodate same sex couples. Members of the clergy who are against same sex unions could be legally forced to marry same sex couples or be charged with discrimination. It may not only be limited to clergy but to any religious group that would wish to deny service to same sex couples based on their sexual orientation. Religious persons would be therefore faced with the discomforting position of having to violate their fundamental belief systems.

Another concern centers on children and the procreative aspects of marriage. Research from conservative arenas suggests that children thrive best in a climate where the parents are of the opposite sex. The position is that for children to develop correct gender identity they are required to have parents of opposite sex to model behavior (Meezan, & Rauch, 2005, p.97). The children learn how to be men and women by observing the parent of the same sex. They learn how to interact with the opposite sex by observing the parent of the opposite sex. Thus for successful sex identity and gender role development parents of the opposite sex are needed.

Additionally, the legal system has traditionally adopted an adverse position toward persons of the same sex adopting or caring for children. The judicial system has a tradition of conceptualizing homosexuality as a form of mental illness or as persons who are less than heterosexuals, in their parenting skills. This legal bias often colors the debate on SSM as it is proposed that these couples are not fit to raise children.

The prior argument is heavily critiqued from multiple angles. Firstly, there is little empirical evidence to suggest that the fear of identity malformation actually materializes. Patterson (1992) suggests that based on the available empirical evidence children in same sex unions do not experience any significant disadvantage as it relates to sexual identity, gender roles or sexual orientation (p. 1030). The inference is that the argument is not substantiated by empirical evidence. It may have a somewhat logical position but research does not support the argument.

A companion to this argument is that marriage is for the purpose of procreation. It is quite obvious that if same sex marriages were to become widespread there may be a threat to the continual survival of the human family as the act of procreation is reduced. This argument is compelling on its face. It however does not consider that there are heterosexual couples who do not have children. These couples would not be considered to be unfit for marriage. There are persons who enter marriage without a desire for children and are more interested in companionship and the other elements of marriage. There is never a suggestion that these persons are not suitable for marriage because of their procreative position. A counter position suggests that SSM legitimizes the lack of procreation and thus invalidates a fundamental pillar of marriage. The reality is that people will procreate within and outside of marriage. The human family will continue because there continues to be an overwhelmingly large population of heterosexual persons who are not interested in SSM.

The moral argument is another weapon in the arsenal of the anti-SSM camp. This argument is based on an interpretation of "The Holy Bible" which suggests that homosexuality is wrong that persons who engage in the behavior are acting immorally. This position sees homosexuality as a choice and individuals who are homosexuals are making a lifestyle choice. They are in control of their feeling and emotions and are deliberately acting contrary to the revealed will of God. This posture would therefore not provide and allowance for the possibility of SSM since it would be immoral and "unnatural."

The challenge with the argument is that it seeks to impose a code of behavior on all citizens even those who do not subscribe to the bible as their book of faith. People have a right to choose any faith or no faith at all. When the religious belief of one group seeks to dominate the discourse on a subject, there is a danger, the group usually adopts the view that they are right and everyone else is wrong. The wrong are dammed to hell and the argument shuts down. These clear lines in the sand ignore the nuanced nature of human sexuality and the freedom of choice given to all persons.

Additionally, despite of the many attempts to cure persons of their homosexual orientation there has been little proven success. The question concerning sexual orientation is one that requires attention because it is the basis of many ill formed positions. If sexual orientation is a choice then the moral argument can be made more easily. However, if it is not a choice that the person makes then their sexual orientation is natural to them and should be viewed in that light. So that SSM are only immoral if the parties actually have a choice in the matter.

The threat posed by SSM to opposite sex marriages is another point of contention. The argument posits that if marriage is the union of a man and a woman then the SSM goes contrary to that descriptive position. SSM is essentially an oxymoron (Eskridge, 1993, p. 1421) SSMs are a threat to marriage because there is essentially a hidden agenda that is designed to weaken the institution of marriage by having SSM. Part of this argument includes the idea that SSM is an immoral action and as a consequence to legalize such an act is to legitimize immorality. When this occurs marriage is undermined. This holds terror for many persons, since marriage is an already weak institution where almost half of all marriages end in divorce.

A supporting position to this argument is that of the slippery slope. The slippery slope argument suggests that if SSM is permitted this opens the door for other types of marriages that are not socially sanctioned. Marriages such as polygamy and incestuous marriages would be given credence. This occurs because of the change to the manner in which marriage would be defined. Once that definition changes what follows in its wake is a trail of persons wanting and fighting for the legitimizing of other forms of marriage. These are forms that have traditionally been received social sanctions and are considered by some as wrong. Maintaining marriage as the union of one man and one woman ensures that society does not descend down that slippery slope.

The slippery slope argument suggests that the path downhill is a linear progression. It also requires that there are no competing elements that would reduce the impact of the downward slide. This is not necessarily consistent with reality as there are always checks and balances that prevent behavior from progressing in a particular direction. The slippery slope argument also contains a false equivalence as SSM is equated with incestuous marriages and polygamy. This false equivalency deliberately ignores the difference in relationship between consenting adults and adult child relations. SSM cannot be equated with polygamy since both in form and execution there are marked differences between the two types of marriage.

Another critique of SSM is that SSM is a social experiment whose consequences cannot be known. The suggestion is that SSM has some unintended consequences that will not become apparent until it is actually enacted. This argument is possibly one of the most robust since while other countries in Europe have legalized SSM, their experience can inform not predict the experience in the United States. It is very possible that there is some fallout from SSM that we have not and cannot estimate.

The final concern raised about SSM is that once legalized it will be taught in public schools as an alternative that is equivalent to opposite marriage. This affects the nature of education including materials in text books and the curriculum of schools. This is troublesome to many parents who do not want their children to be exposed to SSM in that form. Parents are concerned that their belief systems would be ignored and the school and government will assume the role of teaching children this vital aspect of their life orientation. This is again a highly legitimate concern as it is the responsibility of the parent to determine issues such as sex education and other aspects of socialization.

The contrary arguments are founded on the principle of rights and dignity of the individual. The first major argument in favor of SSM states that as a social institution marriage is a means of giving dignity and respect to individuals who as a couple make a lifetime commitment to support each other. The act of making this commitment is not reserved for opposite sex couples. The commitment is based on love for another person. Individuals who love each other and have a desire to publically declare that love should be given the opportunity to do so. The continued denial of this opportunity to same sex couples is also a denial of the dignity and reality of the love they feel for each other.