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Socially, the institution of marriage offers both dignity and validation to the two parties involved as a sign of their mutual commitment to each other. This paper's predominant focus is on the legal aspect of marriage, along with the legal benefits and responsibilities that are associated with one's marital status (though excluding for the most part the child custody/adoption issue, which is another battle in itself as it involves both a third party and minors). Proven inequality in these areas can and should be addressed by changes in public policy. Cultural intolerance and private discrimination, on the other hand, cannot.
There are several arguments against legalization of same-sex marriages, specifically: 1. That homosexual behavior is fundamentally immoral or blasphemous because it does not lead to procreation and/or is condemned by religious texts. 2. That same-sex parenting is necessarily detrimental to child development. 3. That same-sex marriage will further undermine the already crumbling traditional heterosexual marriage as an institution. All of these arguments, however, can be unequivocally refuted.
It is obvious that the strongest opposition against gay marriage legalization comes from the Christian Coalition, which supposedly represents the silent “Moral Majority”. As the name indicates, at the heart of such a group's rhetoric is the Holy Bible, although their position is not far away from those of the more orthodox Muslims and Jewish religious organizations. However, crucial distinctions must be drawn between the concepts of religion, morality, and legality: what is compatible with religion is not necessarily so with morality, and what is legal is not necessarily moral. Adultery is listed as equally a sin as homosexuality in the Bible (both punishable by death), yet it is not a legal offense.
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The notion that same-sex parenting is detrimental to children's development is hardly a new one, and one with great popularity. Even the State of Hawaii, in the landmark case Baehr v. Miike, cited “the State has a compelling interest in promoting the optimal development of children” as one of the main oppositions to legalizing same-sex marriage (Baehr v. Miike). Yet as most experts testifying before the Hawaiian Supreme Court have unequivocally agreed, same-sex couples make no more or less fit parents than their heterosexual counterparts.
Same-Sex Marriage as a Part of the Civil Rights Movement
With the legitimacy of same-sex marriages established and the need to end discrimination through governmental actions recognized, one must take action to alter the status quo. At its heart, the push for of same-sex marriage is a civil rights issue. Namely, it's a group of minorities seeking benefits that members the majority enjoy but are currently being unjustly denied to them.
Many criticize that today's America has many flaws in its legal system, that deep hostilities and prejudices still exist between majority-minority groups, and open clashes between them occur all too often. While many of such criticisms indeed have their valid points, on the other hand it's quite intriguing to consider how in a democratic republic such as the United States (which supposedly follow the wills of its people), many equal protection laws have been established despite continuing prejudices and hostilities towards the minorities from the majority group.
To understand this apparent disparity, it's important to see the politics of civil rights in America and the public policies that address them as “a response of a national elite to conditions affecting a minorities of Americans rather than a response of national leaders to majority sentiments” (Dye, 230). Mass opinions are usually led by elite decisions, not influencing them. It is no surprise that many of the most important civil rights gains to this date (such as Brown vs. Topeka and Roe vs. Wade) have come from the non-elected judicial branch of the government. )
In the context of gay rights movement, specifically the issue of gay marriage, this means that although the gay rights movement will no doubt need grassroots support to truly succeed (that in opening people's minds and hearts and create a more friendly Middle America for persons of all sexual orientations), at this point the advocacy groups' preeminent goal should be appeal to the heterosexual (and largely) white male elite.
The Four Methodical Categories
There are many means to this end, all of which are not mutually exclusive but rather complementary. However, it would be useful to classify them into four categories according to two criteria: approach and level.
The criterion of “approach” describes through which branch of the government is the advocacy group trying to gain influence over, and can thus be roughly classified as either “legislative” or “judicial”. The legislative approach entails attempting to sway politicians' stances, lobbying for stronger protection laws and repeals of discriminatory ones. It involves PACs, campaign donations, political rallies, endorsements, icons, sound bites, bargaining and logrolling. The judicial approach, on the other hand, seeks out the courts to undo unjust laws using judicial review. This is done with amicus curiae, testimonies, legal papers and lawyers' arguments.
As Robert Wintemute points out in Sexual Orientation and Human Rights, the judicial approach is considerably more efficient than the legislative one for “members of unpopular minority groups [who are] often unable to influence the legislators”, as reelection-seeking politicians are usually far more concerned with political expediency than the rights of minority groups (Wintemute, 2). Sadly, this picture describes the current situation of the gay and lesbian political community in the United States very well. It is worth noticing that much of the anti same-sex marriage actions are being taken in individual states' legislative branch, particularly that of the more conservative states; while almost all successes the pro-gay groups have achieved come from the judicial branch.
The other criterion “level” is aimed at specifying which level of the government is the group attempting to influence. Under the American government's federalism principle, both federal and state governments (including the courts) can make policy decisions autonomously from each other, with the supremacy of federal decisions frequently affirmed by the courts. It's perhaps easier to gain victory in a single state, yet on the other hand under the Defense of Marriage Act, its impacts can be very limited.
Each criterion interweave with the other to give us four methods. There is the federal-legislative method, which includes repealing the Defense of Marriage Act, sanctioning same-sex union in a sweeping national legislation, or (as most constitutional amendments originate in the Congress) passing a Constitutional Amendment that recognize gay marriages. The state-legislative method is to pursue pro same-sex union laws in individual states' assemblies in the hopes of eventually expanding them to all. The federal-judicial method would be to have an activist Supreme Court overturning the existing anti-gay marriage laws as it had done with the “separate but equal” doctrine. Lastly, the state-judicial method is to seek each state's supreme court to either strike down bans or sanctify the same sex unions (as occurred in Vermont).
To reiterate, it should be emphasized that these methods are not necessarily mutually exclusive. In fact, they can be complementary to one another as they work toward the same goal. However, since resources of advocacy groups is woefully finite, it would be sensible to focus on one or two methods that are expected to be the most effective.
The Legislative Approach
The overall legislative environment in regards to same-sex marriage, with the passing of federal Defense of Marriage Act in 1996, is decidedly a hostile one. Even the much-hailed Vermont passage of Civil Union act was in itself a preventive measure by the Vermont congress designed to prevent the Vermont Supreme Court from going even further and sanctifying same-sex marriage. Yet already there is an undercurrent of backlash against what's perceived as Montpelier politicians' arrogance, most noticeably from the suddenly mushroomed “Take Back Vermont” quasi-movement. Since then, there have been repeated attempts to introduce legislations that would repeal the Civil Union Act. In other states, ever since the Hawaiian Supreme Court made same sex marriage seem like a possibility and even before the Defense of Marriage Act, there has been a flurry of legislative initiatives to “safeguard” individual states from a similar fate (Dunlap A18).
Same-sex civil union/marriage bills have been introduced in places such as Maryland, Rhode Island, Massachusetts, Nebraska, Oregon, Washington, and Wisconsin but all failed, in many cases year after year (“Legal Marriage Court Cases”). This is not counting the states that already explicitly prohibit same-sex marriage, twenty-five of them in all (ACLU, 1). It should be noted that the legislative approach would be tenfold as difficult to achieve the desired end in the states that already have anti-gay marriage laws in place, as the current laws offer a sense of validation and proof of support for the opponents of same sex marriages. Even in California, one of the most liberal states, the votes resoundingly supported Proposition 22, which prevents California from legally recognizing same-sex marriages.
On a federal level, it would be exceptionally difficult to imagine a repeal of the Defense of Marriage Act—at the very least not in the Congress that approved such an “deplorable act of hostility” with 342 to 67 votes in the House of Representatives and 84 to 15 in the Senate (ACLU, “House Vote on Same Sex Marriage”). The movement does not fare much better in the executive branch: Bill Clinton, for all of his purported support of gays, signed the bill out of political expediency as he feared it would otherwise harm his re-election chances. With a Republican president in the Oval Office today and the national mood swinging towards the right, promotion or even cooperation from the White House for the gay rights cause is even more unlikely.
The hopes for the passage of a Constitutional amendment which explicitly mandates all states to issue marriage licenses to same-sex couples, although decidedly tempting in its sweeping thoroughness, is ultimately unrealistic in today's societal and political climate. One may recall the famous (or infamous, depending on one's point of view) Equal Rights Amendment, which passed through both chambers of the Congress only to be left to die in 1982, as the battle for individual state ratifications was decisively lost. The feminist movement of the 1970s had far more popular support than gay and lesbian right groups do now (or can hope to gather within the next decade). The only conceivable way such a political miracle could be accomplished would be through some extraordinary and highly publicized symbol or crisis on the gay and lesbian community's part. There have been precedents of such influential symbols and events before: the 13th, 14th and 15th Amendments were adopted after the Civil War, and the 26th Amendment was adopted partly as a response to “old men's war, young men's fight” slogan after the Vietnam War. Yet one must be cautious in that such a dramatic symbol is difficult to come by and even more difficult to properly capitalize. The fate of Elián Gonzalez, for example, has arguably done more damage than good to the public image of the Cuban exile community in Florida.
As demonstrated, then, the legislative approach is likely to be ineffective because it places too much control into the hands of popularly elected officials, who are far more respondent to (generally unfavorable) mass sentiments on this issue.
The Judicial Approach
Just as the health insurance battle is said to be fought “organ by organ”, much of today's same-sex marriage battle, especially after the historical victory in the state of Vermont, is currently being fought state by state. According to Lambda Legal Educational and Defense Fund, one of the most prominent gay rights groups, there are currently eight states that offer domestic partnership status to governmental employees—California, New York, Connecticut, Vermont, Massachusetts, Washington, Oregon and Hawaii. (Lambda Legal Education and Defense Fund. “Issue Maps: Domestic Partnership”) There are also dozens of cities that have similar laws, mainly concentrated in California and Northeast. Efforts have consistently being made in other states to extend such government coverage, mainly by American Civil Liberties Union and Lambda Legal.
In virtually every state, moreover, there is some ongoing court suit that aim to curb the existing laws' bias against gays and lesbians due to their inability to be recognized as legal couples. Recent cases include the one won in New York for lesbian graduate students who didn't qualify for family housing at Yeshiva University, as well as that Alaska's ban on same-sex marriage is unconstitutional to mandate that “[one has] to be married in order to get benefits, while at the same time refusing an entire class of people the option of getting married” (ACLU. “Hearing Tomorrow in Alaska's Gay Marriage 'Catch-22'”).
Such an approach is incremental—gradually “step up” the relationship rights available for same sex couples in individual states. While they are not comprehensive and have many loopholes due to the Defense of Marriage Act, they can and do make a difference on the lives of gay and lesbians across the country. However, while progressive court actions are likely to be achievable in liberal states such as California and New York, it is hardly conceivable that even the relatively insulated judicial branch will take a pro-gay rights stance in states like South Carolina and Utah. In such states, even some far more mundane gay right matters—such as the existence of student-run peer support groups in public schools—are challenged by the state and ruled in disfavor of the gay community within the state courts (East High Gay/Straight Alliance v. Board of Education, No. 2:98CV193J). Even in the unlikely events that they do come to pass, the other states will still be free to ignore it—and as mentioned earlier, it will be extraordinarily difficult to reverse the anti-gay stance on marriage many states have already adopted.
The most advantageous and long-lasting approach, then, would be to argue against the Defense of Marriage Act before the United States Supreme Court. One obvious advantage of currying for a favorable Supreme Court decision is that it is comprehensive and far-reaching. Another advantage of that such a Supreme Court decision is likely to be durable. Unlike the legislative arena, which is filled with public opinion upheavals. Courts tend to be preferential towards stances it took in the past and thus usually let previous decisions stand. With the power of judicial review, the Supreme Court may well nullify either Defense of Marriage Act or individual state bans, paving the way for further progress.
However, it also should be noted that such a federal-judicial method is not the gay and lesbian's community's instant ticket to marriage rights: it may takes years to persuade the high court to even hear the case; a moderate-conservative court (as the one currently on the bench, with new liberal appointments unlikely with Bush Jr. as the president) will not necessarily find the case in the gay and lesbian community's favor; the decision may not be explicit enough to be interpreted as a 100% endorsement of same-sex marriage rights (thus throw the ball back to the legislative branch, and finally it may take years for a court-mandated initiative to truly have national impact due to the likely mass resistance. One recalls the triumphs and tribulations of the Africa-American civil rights movement, thanks to which public schools are finally desegregated an entire decade after the historical ruling in Brown vs. Topeka.
Yet I still argue that given the right conditions, such as a liberal and activist Supreme Court, a softening in national mood regarding gay rights, and perhaps most importantly a compelling case that has both legal and media high merits, efforts to have the Supreme Court decide on the current marriage-ban laws are likely to be fruitful.
From a legal standpoint, the Defense of Marriage Act can be quite vulnerable. First and foremost, its Constitutionality is highly questionable. The most obvious transgressions it has is in regard to the Constitution's “Full Faith and Credit” clause: “Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. And the Congress may by general laws prescribe the manner in which such acts, records and proceedings shall be proved, and the effect thereof.” (Unite States Constitution, Article IV, Section 1). However, the Defense of Marriage Act allows state courts to ignore judgments from courts in other states respecting same-sex marriages. This in itself renders the entire legislation blatantly unconstitutional.
Another possible breach Defense of Marriage Act has against the Constitution would be its contrary to Equal Protection clause, as defined by the 14th Amendment: “…nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws” (Unite States Constitution, the 14th Amendment). There is an litany of rights available exclusively to married couples such as estate succession, wavier of will, survivorship, post-mortis property transfer, hospital visitations, action for wrongful death, spouse abuse programs, group insurance, family leave, and terminal care (Vermont State, “Vermont Guide to Civil Unions, p3). However, it will be more difficult to strike it down on this account in the court, if only because the language is far more ambiguous (and perhaps intendedly so) that it is in the Full Faith and Credit clause. Before Brown vs. Topeka, the civil rights movement for racial equality suffered for years from conservative Court interpretations of the said Equal Protection clause.
Alternative: Private Salvation?
There is, some argue, perhaps a happier medium to be found in the private market for gay rights. That is, as many marital rights concern tangible economic benefits such as health and life insurance, compensation, family leave,
Big companies and organizations, for the sake of promoting their “progressive” and “diverse” images if nothing else, are likely to provide their gay and lesbian employees with equal benefits as their heterosexual counterparts. In the wake of the World Trade Center disaster, for example, the Red Cross issued a set of written guidelines which clearly state that same-sex survivors are eligible for September 11 family relief assistance, citing “Red Cross is a neutral and impartial organization and we help people who need help”. Other giant corporations such as Verizon, AT&T, and Johnson & Johnson (to name but a few) all have domestic partner benefits plan for their employees.
While the private market reforms have their merits because they are further removed from public debate, they are very limited by their nature. For one, the giant corporations, which are the ones most likely to adopt gay couple-friendly measures, employ only a small portion of American people. The small businesses are usually very reluctant to expand their benefit plans to cover due to fear for increasing costs, not to mention that employment discrimination against gay and lesbians, let alone employee benefits discrimination, are still practiced as a matter of course in Deep South today. Small scope aside, the private market also cannot supply numerous legal benefits that can only be made available through governmental actions, such as action for wrongful death and survivorship.
As the cases of the Netherlands, Germany and the Scandinavian countries have shown the world, allowing people of the same sex to marry one another or enter a legally recognized family partnership does not make sulfur rain from the sky.
Make no mistake: The road to equal protection for gay and lesbian couples in America will be a long and strenuous one, with setbacks as well as victories. Yet that should not—and will not—stop the secular-minded gay rights groups from fighting for what is known to be the axiom of Americanism, long since Thomas Jefferson uttered it centuries ago: “Life, Liberty, and the Pursuit of Happiness.”
American Civil Liberties Union. “Hearing Tomorrow in Alaska's Gay Marriage 'Catch-22'”
American Civil Liberties Union. “House Vote on Same Sex Marriage”.
California State. Office of the Secretary of State. Proposition 22. 2000.
Congress. House. Defense of Marriage Act. 104 Cong., 2nd Session. H.R. 3396.
Dunlap, David W. "Some States Trying to Stop Gay Marriages Before They Start". The New York Times, Mar. 15, 1995, p. A18, col.1.
Dye, Thomas R. Understanding Public Policy. 10th ed. Upper Saddle River, New Jersey: Prentice Hall. 2000.
Hawaii Supreme Court. Baehr v. Miike. 20371. 1996.
Lambda Legal Education and Defense Fund. “Issue Maps: Domestic Partnership”
United States. Constitution of the United States.
United States District Court for the District of Utah. East High Gay/Straight Alliance v. Board of Education. No. 2:98CV193J. 2001.
Vermont State. The Office of the Secretary of the State. The Vermont Guide to Civil Unions.
Vermont Supreme Court. Baker v. State. 98-032. 1999.
Wintemute, Robert. Sexual Orientation and Human Rights: the United States Constitution, the European Convention, and the Canadian Charter. New York: Oxford University Press. 1995.