Same-Sex Marriage Few Modern Issues

¶ … Same-Sex Marriage

Few modern issues are more divisive than the issue of same-sex marriage. Proponents of same-sex marriage believe that gays and lesbians are being systematically denied of their civil rights by laws that discriminate against same-sex marriage. On the other hand, opponents of same-sex marriage see gay and lesbian unions as a threat to the idea of "traditional" marriage. Both sides argue that the government has a duty to protect and enforce marriage laws. Both sides use rhetoric about the family to support their arguments. However, only one side has a compelling interest in whether or not same-sex marriage is legalized: those people seeking to be married and members of their households. Freedom of association is a right guaranteed to all Americans under the First Amendment to the United States Constitution. It is the most fundamental of the fundamental rights guaranteed to Americans under the Bill of Rights. Furthermore, the right to privacy, as guaranteed by the Fourth Amendment to the United States Constitution, guarantees Americans the right to determine what goes on in their bedrooms. Absent a compelling state interest, state and federal governments violate the United States Constitution when they legislate against same-sex unions. Therefore, same-sex marriage should be legal because there is no rational basis for the government to prohibit same-sex marriages.

Why is the issue of marriage so important? Is there a compromise, such as same-sex civil unions, that could make both sides of the issue happy? Many people, such as 2004 Presidential candidate John Kerry, suggest such an approach. However, that approach ignores the fact that marriage is different. Yes, at its heart, a marriage agreement is a contract. However, it is more than a promise of financial support or obligation; it is a pledge of love, fidelity, and honor. It seeks to impose legal obligations on feelings. It also confers legal benefits on those that the heart already considers family. In "Not the Marrying Kind," Cora Daniels explores the relationship between her parents. Lifelong partners, Daniels parents believed that marriage was limiting. Daniels mother felt that "without the piece of paper... their connection was pure, limitless and unscripted" (Daniels). However, when Daniels' father died, her mother realized what she missed by not being legally married to Daniels' father. Instead of her mother being considered her father's next of kin, Daniels was responsible for making decisions for her father. Most poignantly, at her father's formal military burial, the soldiers handed the folded flag to Daniels, rather than to her mother. In fact, Daniels' mother told her afterwards that her only regret in had been that she had not married Daniels' father. Speaking of her mother, Daniels said, "She had believed the world could see the love and commitment that she and my dad shared. But what she didn't grasp sooner is that when you are lucky enough to find a love as strong as she found, you show it off to the world proudly." While Daniels' parents were a heterosexual couple, they exemplify why marriage is so important and why a civil union cannot replace the idea of marriage. When a person is in love, she wants her partner to be her spouse, not the obligor in a contract.

Explaining why marriage is important does nothing to help either side on the marriage debate. While proponents of same-sex marriage look at such an argument and explain that they want the same legal rights as everybody else in America, opponents look to the argument and claim that permitting same-sex marriages would damage the institution of marriage in America. It is illegal to discriminate against people on the basis of sex. Any laws that attempt to so discriminate are to be scrutinized to determine whether or not there is a rational basis for the law, and if the law would actually achieve its stated aims. Therefore, to determine whether or not same-sex marriages should be legal, one needs to look at more that just the emotions behind marriage. One also needs to look at the legal arguments for and against gay marriage: religion, biology and nature, historic definition of marriage, the current state of marriage in American, and the effect of gay marriage on the children of gay marriage.

Many opponents of gay marriage use religion as a means of challenging the idea of same-sex marriage. This paper will not spend much time addressing the religious issues surrounding the idea of same-sex marriage. The United States Constitution guarantees religious freedom and separation of church and state. Therefore, whether one personally agrees or disagrees with a religion that condemns homosexuality, members of that religion are free to practice their beliefs. However, the Establishment Clause of the First Amendment makes it abundantly clear that religious groups are constitutionally prohibited from legislating based on religion. The religious argument may be the most vehemently argued one, but it is the most easily dismissed because of the guarantees of the United States Constitution.

Opponents of same-sex marriage also argue that homosexuality is unnatural. Some have gone so far as to equate homosexuality with bestiality. The same arguments were used to criminalize interracial marriages in the Jim Crow south prior to the decision in Loving v. Virginia. In actuality, homosexuality has been part of human sexuality forever. In fact, many civilizations, such as ancient Greece, took an omnivorous approach to sexuality, and people readily crossed back and forth over gender lines when seeking romantic partners. In addition, homosexuality is not limited to human beings. "There are 300 vertebrate species in which homosexual relationships are a regular part of the natural social system" (Solomon).

Hand-in-hand with the biological argument is the historical argument. Opponents of gay marriage argue that same-sex marriages defy the historical definition of marriage. Instead, they maintain that the term marriage has historically referred to a union between a man and a woman. That argument just is not valid. Looking towards the oldest historical documents, marriage has not traditionally been the union of one man and one woman. In fact, almost every society comes from a history of polygamous marriages. In fact, the history of marriage includes many things that modern American society deems unacceptable or illegal. Men could have as many wives as they could afford, and people were married while children. It is only in the last couple of hundred years that the American concept of marriage has been limited to a union between one man and one woman. However, that concept is not universal. There are other countries that recognize same-sex marriage.

Furthermore, the historical legal definition of marriage does not serve as a good basis for determining the present-day marital rights of American citizens. For a long and dark period of time in America's history, the institution of slavery was legal. One of the things that slaves were prohibited from doing was marrying.

In fact, in some states, slaves that married were subject to being killed. Therefore, almost from the beginning of American history, there is a tradition of not allowing marriage between consenting adults because of an awareness of the psychological and sociological ramifications of marriage. Allowing a slave to choose his or her own life partner would have given them the tinges of freedom, which would have threatened the institution of slavery. Despite the promises of the 14th Amendment, those vestiges of slavery remained in the Jim Crow south; while African-Americans were permitted to marry each other, the were forced to maintain a badge of slavery by being prohibited from marrying whites.

The first time the issue of segregation, which is closely linked to marital freedom, came before the U.S. Supreme Court, the Court determined that separate but equal was a permissible policy. The modern equivalent of separate but equal is the idea of limiting same-sex partners to civil unions, rather than marriages.

Today, the idea of separate but equal is appalling to most Americans, as it is recognized that the idea of legislated separateness enforces the underlying idea of inequality. "Looking back 50 years to Brown v. Board of Education, most Americans have no difficulty distinguishing the legacies of Thurgood Marshall, Martin Luther King, Jr. And John F. Kennedy from those of the segregationist governors Orval Faubus, Ross Barnett and George Wallace" (Garrow). The fact is that American history is full of discrimination. At the time of Brown v. Board of Education and the Montgomery Bus Boycotts, America was just as divided over the race issue as it is over the idea of gay marriage. However, Americans did and could not permit a legacy of bigotry determine the future of civil rights in America. 50 years later, Americans are faced with the same challenge; the only difference is that the discrimination is aimed at a different minority.

When the historical argument fails, the opponents of gay marriage try to maintain that by allowing gay marriage the institution of marriage would be threatened. This argument is ridiculous. The institution of marriage is already threatened in modern-day America. Half of first marriages end in divorce, and the prospects just get worse for each subsequent attempt. Divorce is no longer taboo at all. It is not unusual, but almost expected, for couples to marry, have at least one child, and subsequently separate. About half of American children are being raised in single-parent households or in households where there is a revolving door of partners for their custodial parent. Divorce is not the only issue that threatens the institution of marriage in America; approximately one in four people are currently in an abusive marriage. Furthermore, if a woman in America is murdered, the odds are overwhelming that her husband is the killer. Domestic violence does more to provide a real threat to more marriages in America than same-sex marriage ever could. As far as threatening individual marriages, the legalization of gay marriage would probably promote individual relationships. If homosexuals had the opportunity to marry their chosen partners, they may feel less pressure to remain in the closet, and be less likely to marry someone of the opposite sex.