¶ … Social Contracts:
Media Articulation Of The Rites Of
HETEROSEXUAL vs. HOMOSEXUAL MARRIAGE RIGHTS
In the Land of the Free where the Bill of Rights is supreme, all marital unions between consenting adults should be accorded the same level of societal respect and legality under federal and state laws. It was just a few decades ago when the Gay Rights Movement was born in a raucous Greenwich Village bar, but homosexuals have become increasingly accepted in mainstream American society in the years since and a growing number of states are legalizing same-sex marriage in response to this trend. Unfortunately, the path to equal rights for all American citizens has been hampered by negative media coverage of homosexuals in the United States in recent years in ways that are frequently subtle but which are discernible through careful analysis. This type of analysis is important because prejudicial public information or notice of the sexual orientation of the marital union partners is capable of distracting from the core values pertaining to family issues and such skewed coverage inevitably perpetuates stereotypical perceptions of others. The Associated Press Style & Libel Manual has gone to great lengths to avoid this type of stereotypical portrayals in newspaper coverage and most major English-language dictionaries used in the United States have either eliminated gender specifications in their definitions of marriage or have supplemented them with secondary definitions to provide gender neutral language concerning same-sex marriages.
Basic American human and civil rights clearly demand equality of the marital institution in the United States today. The Declaration of Independence (1776, line X) sets the broad standard under which Americans define citizenship and membership in a freedom-loving nation. The U.S. Constitution's Bill of Rights, particularly the 1st and 14th Amendments, that guarantees all American citizens a wide range of civil rights and liberties. With respect to the 1st Amendment's implications, lawsuit seeking court orders to compel reluctant religious institution to perform same-sex marriages will likely fail under the provisions of the 1st Amendment Free Exercise Clause (Severino, 2007) which stipulates: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . .." With respect to the 14th Amendment, the Library of Congress's entry for this amendment states: "The 14th Amendment to the Constitution was ratified on July 9, 1868, and granted citizenship to 'all persons born or naturalized in the United States,' which included former slaves recently freed" (2011, para. 1). Beyond the foregoing stipulation, the 14th Amendment also prohibited states from denying any person "life, liberty or property, without due process of law," or to "deny to any person within its jurisdiction the equal protection of the laws" (quoted in 14th Amendment to the U.S. Constitution, 2011, para. 2). Prior to the passage of the 14th Amendment, the civil rights and liberties protections contained in the Bill of Rights were not applicable at the state level, making this amendment especially salient for the same-sex marriage debate today. In this regard, the Library of Congress concludes that, "By directly mentioning the role of the states, the 14th Amendment greatly expanded the protection of civil rights to all Americans and is cited in more litigation than any other amendment" (14th Amendment to the U.S. Constitution, 2011, para. 2).
In recent years, there has been a growing recognition of this fundamental need to recognize these constitutional rights as state after state has legalized same-sex marriages and this trend appears to be increasing. For instance, in 2003, Massachusetts became the first state to approve same-sex marriages (Brewer & Wilcox, 2005) and four other states (Connecticut, Iowa, Vermont and New Hampshire as well as the District of Columbia) now legally recognize same-sex marriages (Williams, 2010). In response to these trends, there have been calls for a constitutional...
The broad provisions of the 1st and 14th Amendment mean that there will be significant implications for the legalization of same-sex marriages at the state level. According to Severino, "The specific consequences that will likely flow from legalizing same-sex marriage include both government compulsion of religious institutions to provide financial or other support for same-sex married couples and government withdrawal of public benefits from those institutions that oppose same-sex marriage" (2007, p. 939).
This means that in any situation wherein religious institutions have afforded preferential treatment for traditionally married men and women, state law will likewise require them to treat the partners of same-sex marriages in an identical fashion or, in the alternative, discontinue offering such benefits completely (Severino, 2007). The alternative is precisely the response taken by Catholic Charities of Boston that discontinued its adoption program altogether rather than being forced to place children for adoption with same-sex marital partners (Gallagher, 2006). The net impact of these changes would be profound for many religious organizations. If state laws allow same-sex marriages:
1. Religious institutions that refuse to recognize same-sex marriages would risk losing their traditional tax-exempt status;
2. Religious institutions that refuse to recognize same-sex marriages would risk exclusion from competition for government-funded social service contracts.
3. Religious institutions that refuse to recognize same-sex marriages would risk exclusion from government facilities and other public venues.
4. Religious institutions that refuse to recognize same-sex marriages would risk exclusion from the state function of licensing marriages.
5. Other criticisms of same-sex marriage from the clergy include the potential for the loss of religious practices and observances during the consecration of marriages that have been the traditional mainstays of these organizations (Severino, 2007, p. 940).
While a sufficient body of precedential case law has not been developed that addresses the likely outcomes of legal challenges to religious institutions that have challenged same-sex marriage laws at the state level with respect to the foregoing, there is a growing body of case law concerning unsuccessful challenges to state-level definitions of marriage that prohibit same-sex unions (Severino, 2007).
Taken together, the economic, religious and social costs that are associated with legalizing same-sex marriages are substantial, but these are costs that must be paid in order to achieve the equality mandates set forth in the U.S. Constitution. Not surprisingly, efforts to promote or discourage same-sex marriage at the state-level have been characterized by heated debate and emotionally charged rhetoric, with the legal definition of marriage typically being at the crux of the controversy. For instance, according to Poirier (2008), "A classic response to the claim of a right of same-sex couples to marry has always been definitional: a 'marriage' between two men or two women is simply not what 'marriage' means" (p. 343). This assertion is refuted by Black's Law Dictionary (1999), though, that defines marriage as "a legal union of one man and one woman as husband and wife. Marriage is a legal status condition or relation of one man and one woman united in law for life or until divorced for the discharge to each other and the community of the duties legally incumbent on those who association is founded on the distinction of sex" (emphasis added) (p. 972).
Proponents of this traditional legal definition of marriage, then, argue that same-sex marriages fail to satisfy the legal requirements for marriage from the outset and there has been a groundswell of efforts to ensure this remains the law of the land. For example, on February 24, 2004, then-President George W. Bush called for a Constitutional amendment that would actually define marriage as being between as "man and a woman" (Landau, 2009). This call was followed by the California Supreme Court's decisions in three separate cases in August 2005 that resulted in the state being the first to grant full parenthood to same-sex partners (Landau, 2009). The news was far different in other parts of the country, though and Landau emphasizes that, "By the end of 2005, 27 states had voted to amend their constitutions to define marriage as a union of one man and one woman, while steps to pass laws to ban gays and lesbians from adopting children were underway around the country" (2009, p. 81).
One of the main influences of public perception of gay marriage, of course, is how the institution is portrayed in the popular media. Clearly, to the extent that same-sex marriages are portrayed in positive frames will likely be the extent to which mainstream views about this issue will positively change and vice versa. This point is made by Holz-Ivory, Gibson and Ivory (2008) who…