Should Same-Sex Marriage Be Legalized? Policy Analysis

Introduction

Hunter, writing in 1991, described same-sex marriage as a possibility that "shimmers or lurks — depending on one's point of view — on the horizon of the law" (p. 10).

Over the last fifteen years, homosexual rights have emerged as one of the most contentious issues in American politics. An increasing number of friends and family members have "come out," interest groups on both sides have mobilized, and public officials have staked out positions. The current freedom-to-marry movement did not emerge until the mid-1990s, and then only in response to a conservative backlash in state legislatures across the country. Nevertheless, individual couples had been applying for marriage licenses, being denied those licenses, and filing lawsuits for the preceding forty years. Families, communities, generations, and political parties have become divided. New issues have entered the political discourse that would have been unthinkable a generation ago, such as allowing same-sex couples equal marriage rights, the right to adopt children, or the right to serve openly in the military.

Consequently, one of the most notable observations about homosexual rights is the rapid pace of change that has occurred in both public opinion and public policy. Prior to 1974, the American Psychological Association classified homosexuality as a mental illness. No state protected gays and lesbians from discrimination until 1982, and no state specifically included "sexual orientation" in its hate crimes law until 1989. As of 2007, twenty states banned sexual orientation discrimination, and thirty-one made sexual orientation a protected category under their hate crimes statutes. Even more remarkably, same-sex marriage had become legal in Massachusetts, and six other states provided equal marriage rights for same-sex couples.

This paper comprises two sections. Section 1 addresses a social welfare policy — namely, anti-discrimination laws — and its impact on the homosexual community. Section 2 discusses the policy question of whether same-sex marriage should be legalized.

Anti-Discrimination Laws and Their Impact

The policy examined here is anti-discrimination law. Over the past twenty-five years, a number of states have extended civil rights protections to gays and lesbians. In most cases, the category of "sexual orientation" was simply added to existing state anti-discrimination laws covering other groups, and included protections in areas such as housing, public accommodations, credit, education, and employment. As of 2007, twenty states had extended the scope of these laws to cover "sexual orientation." In these states, protection is comprehensive; however, other states only prohibit public-sector employment discrimination.

There is no question that a significant portion of the gay and lesbian population has experienced some form of discriminatory treatment in the workplace. Similarly, a significant number of CEOs have indicated in surveys that they would hesitate to give management positions to workers who are homosexual (Kovach, 1994, p. 1).

This policy had a very positive impact on the gay and lesbian community. Over time, discrimination toward homosexuals in society has measurably decreased.

Opposition to Same-Sex Marriage

The topic of same-sex marriage has created debate between its supporters and opponents, as well as within the lesbian, gay, bisexual, transgender, and queer (LGBTQ) communities. The first, and perhaps most prominent, opposition to same-sex marriage came from religious groups (Lahey & Alderson, 2004, p. 20). Not all LGBTQ individuals, especially those active during the gay liberation era, embraced the legalization of same-sex marriage either.

In 1953, E.B. Saunders wrote an article in ONE posing the question of whether gay marriage was a good idea. He posited that the year was 2053 and that homosexuality had gained widespread acceptance, then queried whether "deviates" would be allowed to pursue sexual pleasures with as little inhibition as they did in 1953, or if — like heterosexuals before Eisenstadt — they must be married to have sexual intercourse. Saunders worried that accepting homosexual sex without marriage "would loosen heterosexual marriage ties, too, and make even shallower the meaning of marriage as we know it. It cannot be seriously claimed that this would be a good thing" (Saunders, 1953). Saunders also worried about "what legal developments would come of the objection by the 'Mr.' that 'Mrs.' doesn't contribute equally? In heterosexual marriage, the wife has the general drop on the husband in that she bears children, hence needn't punch a time clock as nature apparently decrees he must. Will there be a new law forbidding one person to be 'kept' by another then?" (Saunders, 1953). Saunders believed that "for heterosexuals, at least, there yet has been found a better arrangement on which to base the family unit. Heterosexual marriage must be protected. The acceptance of homosexuality without homosexual marriage ties would be an attack upon it" (Saunders, 1953). For Saunders, the value of homosexuality resided in its free sexuality and household arrangements — a virtue that could not be extended to heterosexuals without disrupting society as a whole, and could not be accepted by the mainstream without risking traditional marriage.

The opposition from religious groups is based on the argument that marriage is a religious domain and that religious teachings condemn homosexuality. Their basic assumption is that same-sex marriage should not be allowed because churches should have as much authority as the legal system in matters of marriage. Another frequently cited argument against same-sex marriage from religious communities is that the purpose of marriage is to create an optimal environment for child rearing. Rev. David Henry, a former host of a Christian broadcast, stated that same-sex legislation would transform an institution of marriage meant for procreation and the nurturing of children into the legal protection of the needs and desires of adult relationships (White, 2005, p. A6).

Other critics rejected gay marriage on the basis of intrinsic biological or cultural differences between men and women, and the ways in which those differences shaped the utility of marriage. Most referenced children when citing biological differences. Some opponents of gay marriage argued that "to adopt children, take out insurance on each other, set up bourgeois house does not represent, for them, a solution" (Herbert Gant, 1966). A marriage opponent interviewed by The Advocate echoed the idea that gay men and lesbians did not need marriage since they did not have children: "The word marriage means bride and groom down the aisle. That act is a heterosexual thing, almost laughable in our situation. But that doesn't cover babies, cleaning the house, dirty diapers, sickness" (Charlotte Versagi, 1982). Others pointed more to the cultural differences between men and women that gay men and lesbians did not face. One journalist who opposed gay marriage indicated that "what holds many heterosexual marriages together is, I suggest, a basic male-female polarity, largely biologic in nature. Whereas in homosexual relations, although a polarity does exist, it is not of this obvious male-female sort; it remains a polarity of temperament, of interests, of character." This journalist eventually concluded that the inability to have children provided just one "certain way in which they are never, no matter how hard they try, going to succeed in imitating a heterosexual marriage." Similarly, a social scientist who opposed gay marriage explained in an interview with The Advocate that gay relationships would always differ from straight ones for several reasons, including "sex roles. Males are socialized differently from females, and when a male comes into a relationship with a female, there are certain roles he assumes. But when two men come together, there may or may not be social roles. There will certainly not be gender-related roles: you sew, and shop and take care of the children, and I work in the garden and fix the car."

Gay activists who opposed gay marriage rejected the idea of embracing a repressive institution that heterosexuals appeared to be casting aside. Journalist Hermann Stoessell wondered if marriage was the answer to homosexuals' desire for stability in their relationships, but quickly answered: "The twentieth century heterosexual can reply to that question. He's abandoning marriage, at least of the 'til death do us part' variety. Should we pick up the remnants of a system he is casting off?" Similarly, Jim Kepner wrote in The Advocate, "I think it is neither an accident nor a sign of the failure of homosexual lifestyle that most Gays don't do that. Most of us (female or male, hetero or homo) weren't cut out for that straitjacket, and young hetero rebels are amazed to hear of Gays fighting so hard to get into it." Kepner then quoted Marnie Jacobs, who argued, "now that a few heterosexuals are beginning to throw off their chains, the homosexuals come in demanding an equal share of the old slavery. How crazy can we get?" Pat Arrowsmith, a British lesbian activist and peace promoter, famously married to claim an inheritance left to her under her father's condition that she take a husband. Arrowsmith told the British press that "marriage is a foolish institution" and that she would be glad to make a mockery of it.² After her marriage to a man who had married another woman to gain citizenship, Arrowsmith planned to donate her inheritance to various causes.

The opposition to same-sex marriage is not only from religious groups; other hostile groups are quite open about their dislike of homosexual individuals. These individuals are often perceived as homophobic and rarely gather open sympathy or support. Apart from external opponents, there is also opposition from within the community of same-sex marriage supporters. These internal opponents are wary of assimilation into mainstream society via state-regulated marriage, arguing that the extension of the right to marry can mask the underlying problems of the same-sex marriage debate — for example, the heteronormative nature of society (Lehr, 1999, p. 14; Warner, 1999, p. 88). Some lesbian and gay individuals are puzzled by the popularity of the same-sex marriage debate, viewing its pursuit as frivolous compared to more urgent issues. Other internal opponents argue that extending marriage to same-sex couples would benefit only certain groups — namely, professional, white, middle-class, able-bodied lesbians and gays whose families closely resemble the traditional heterosexual ideal (Donovan, 2004, p. 25).

Conclusion and Policy Recommendation

McConnell believed "that homosexuals should enjoy the same rights that heterosexuals do," including inheritance rights, property privileges, and tax benefits. Baker elaborated later that year that "as long as society can get away with depriving rights to a certain group, that group will always be second class citizens… And besides, Mike and I really do want to get married." Legally, Baker and McConnell cited "redress under wrongful death statutes," "alienation of affections statutes," and "one form of joint property ownership which in Minnesota is available only to wedded couples, providing advantages against creditors." Many of these rights were notably grounded in the remnants of the nineteenth-century legal system of coverture. This strategy was deliberate; they argued that their marriage bid would "force the legislature to take a fresh look at a lot of statutes on the books," including the property rights embedded in marriage and the "laws that treated wives and husbands unequally."

One significant argument in favor of including same-sex marriage in legal marriage is based on long-standing prejudice against a minority group — homosexuals — and in part on a faulty understanding of the purpose of legal marriage. Proponents of exclusion argue that the inclusion of same-sex couples will damage the legitimacy of the institution. There is no evidence that this is the case. There is, however, substantial evidence that despite significant changes in the history of marriage, it remains a common life choice. In addition, the psychological, financial, and health benefits conferred by marriage relatively stabilize the relationship despite past changes to the institution.

A second argument made against the inclusion of same-sex couples in the institution of marriage is that marriage exists for childbearing. This is not supported by judicial precedent, which allows childbearing to be a choice within marriage. This argument also assumes that gay and lesbian couples do not become mothers and fathers — whether within homosexual or heterosexual unions. This is simply not the case.

A third argument is that children of same-sex unions are at increased risk for dysfunction compared to children of heterosexual unions. This argument is flawed on two levels. First, research does not support this claim; children of lesbians and gay men are as psychologically healthy as other children. Second, the prevention of legal marriage does not prevent the conception of these children. Preventing the legal marriage of their parents serves only to stigmatize them.

After considering the alternatives, it appears that marital rights represent the only institution that satisfies the constitutional rights to life, liberty, and the pursuit of happiness, as well as equal protection under the law, and the case law establishing marriage as a fundamental right. Therefore, the policy recommendation of this paper — supported by psychological and medical research and constitutional analysis — is that same-sex marriage should be legalized.