Whims of the Time Traveler 7.1: December 7th, 2009
I refuse to believe I've run out of things for this segment! Here's an essay I wrote for a human rights class I took in junior year of college. Deal with it! DEAL WITH IT, I SAY!
Same-Sex Marriage in the United States of America
Same-Sex Marriage in the United States of America
by Belinda Roddie
Since 2003, the issue of same-sex marriage in the United States has grown increasingly prominent in politics and culture. However, even beforehand, in the 1990s, measures were being taken to prohibit same-sex marriage state-wide and federally. Where does same-sex marriage fall in terms of human rights categories? Is it really up to the states to decide, or is it truly a violation of human rights to prohibit homosexuals from marrying just as heterosexuals do? In order to look at the United States’ possible violations of homosexuals’ rights to marry, it is important to look at marriage as an institution and as a right, as well as recap the various constitutional measures that the country and its states have taken in either stopping or promoting same-sex marriage.
To begin from a broader scope, one must look at the Universal Declaration of Human Rights to determine whether or not the United Nations consider the prohibition of same-sex marriage to be a violation of human rights. According to Article 16 of the UDHR, “Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution.” [1] However, nowhere in the section is sexual orientation mentioned specifically, which would explain why many nations have not enforced marriages for homosexuals. Cultural relativism indeed does play a role in the enforcement of same-sex marriage, and it would explain why only four states (Massachusetts, Connecticut, Iowa, and Vermont) allow same-sex marriage, while five more states recognize some form of same-sex civil union. After all, U.S. history has shown that the movement for same-sex marriage may be a long one, especially when it has been only as recently as the late twentieth century that homosexual rights in general have begun to be recognized in states.
Before moving on to the current struggle of same-sex marriage, it is important to discuss the Federal Defense of Marriage Act (DOMA), passed by Congress and signed into law by President Bill Clinton in 1996. According to the act, “No state (or other political sub-division within the United States) needs to treat a relationship between persons of the same sex as a marriage, even if the relationship is considered a marriage in another state.” [2] It was also the first federal law to define marriage as an institution, claiming, “The federal government defines marriage as a legal union exclusively between one man and one woman.” [3] Not only did the DOMA allow states their own sovereignty to decide whether or not homosexuals were allowed to be married, but it also emphasized many conservative, and perhaps more religious, members of Congress to add implications to the institution of marriage. According to the bill’s twenty-two conservative Republican sponsors, the act was titled as a defense of marriage “…implying that the desire of gay and lesbian couples to marry constitutes an aggression against the traditional heterosexual institution of marriage.” [4] Politicians and professors alike can safely say that this federal act is almost solely responsible for the movement for same-sex marriage being pinpointed as a political agenda, apparently existing to destroy tradition and overthrow the values of a heterosexual marriage institution.
In many ways, such a viewpoint of same-sex marriage has not changed, but in other ways it has violently fluctuated from the end of the twentieth century to the beginning of the twenty-first century. Sean Cahill writes, “A total of 16 states passed anti-gay marriage laws by the end of 1996. Anti-gay marriage bills were defeated or withdrawn in 20 other states. …Another 15 states adopted anti-gay marriage laws in 1997 and 1998. As of early 2004, 39 states have such laws.” [5] In 2003, a resolution was made to amend the U.S. constitution so that marriage was only defined between a man and woman; this was mostly a response to San Francisco, a city that had begun illegally distributing marriage licenses to same-sex couples against the law of the California Supreme Court at the time. According to Cahill, “The Federal Marriage Amendment (FMA) would short-circuit state efforts to legalize marriage for same-sex couples by banning same-sex marriage and prohibiting courts and legislatures from citing state or federal law…to mandate more limited forms of recognition…” [6] By “limited forms of recognition,” the FMA would amend the constitution to prohibit factors such as hospital visitation rights, domestic partner health benefits, and second-parent adoption.
This is where the line between protecting the institution of marriage and the violation of human rights begins to blur. While anti-gay groups claimed that the FMA would still allow some form of same-sex civil union policies, Cahill claims, “By prohibiting the conferral of ‘marital status or the legal incidents thereof’ on same-sex couples…the FMA could jeopardize hard-won domestic partner health benefits and registries…” [7] Basically, any civil unions or recognition of same-sex marriage rights by the few states that allowed it would be jeopardized, obliterating the concept of state sovereignty in order to allow same-sex marriage or unions. The amendment would also, in that regard, curtail judicial rulings in support of same-sex couples’ rights to marry, which could jeopardize the proceedings of a state court. The definition of marriage, therefore, would be decided entirely by the federal government; rather than states not having to recognize same-sex marriage, as stated by the Defense of Marriage Act, states would be barred from ever recognizing same-sex marriage, destroying the option. Not only that, but defenders of same-sex marriage claim that other basic human rights are being violated, or rights as stated in the U.S. Constitution, when same-sex couples do not have the same visitation rights or health benefits as heterosexual couples.
What exactly defines the institution of marriage, besides the bare-bone concept that states it should maintain the traditional heterosexual structure? According to the Massachusetts Court, which recognized same-sex civil marriage in the early years of the twenty-first century, there is a distinction between civil marriage and religious marriage, the latter being a major argument enforced by conservatives and religious leaders in order to stop the same-sex marriage movement. In its ruling, the Massachusetts Court stated that “…civil marriage is…a wholly secular institution. Civil marriage anchors an ordered society by encouraging stable relationships over transient ones.” [8] While this could be classified as an argument for same-sex marriage, it also offers some valid points on how to define the institution of marriage. Peter Gomes, a Harvard University professor, notes, “…the first Puritans saw civil marriage as ‘unscriptural’…in 1629, marriages were solely civil contracts for more than 50 years of early American history. It was only…in 1692 that the clergy were authorized to perform marriages.” [9] Cahill also emphasizes an argument that the defenders of same-sex marriage reiterate to religious leaders over and over again: that civil marriage will not compromise religious rights. “Many legal marriages…are not blessed within particular religious traditions, but the state still recognizes them. Legalization of civil marriage for gay couples will not affect whether a religion will or will not perform or recognize certain marriages.” [10] By separating the concept of civil marriage and religious marriage, the institution of marriage as only for heterosexuals is called into question, especially when looking at the United States historically. While some religious orders are reforming and allowing same-sex marriage, there has been no movement by same-sex couples to force any other religious order, such as the Roman Catholic Church, to perform civil marriages. In this way, an argument is made for civil marriages, to counter religious marriages.
However, anti-gay groups and political leaders continue to stress that the legalization of same-sex marriage, whether civil or religious, will compromise the marriage institution and destroy family and cultural values. Peter Sprigg, in his book, counters the argument that banning same-sex marriage is similar to banning interracial marriage in the 1960s: “Interracial marriage does not change the definition of marriage…Homosexual ‘marriage,’ on the other hand, changes the fundamental definition of the institution, and would form at least three segregated forms of marriage.” [11] Sprigg names these segregated categories as male-only unions, female-only unions, and opposite sex-unions. In contrast to this proclaimed segregation of marriage, Sprigg claims that defining marriage as a union between a man and a woman both religiously and civilly strengthens the concept of marriage rather than divides it. “Rather than building walls between two classes of people, it creates a bridge across the most fundamental gap in humanity – the gap between male and female. Bridging the divide of the sexes by uniting men and women in marriage is common to all human civilizations, and serves the good of society.” [12] While not emphasizing very much at all on the rights of marriage, Sprigg does counter the argument of civil marriage vs. religious marriage, writing, “…civil marriage exists merely to recognize a pre-existing social institution. The state does not create marriage – it merely recognizes it.” [13] In this way, Sprigg founds a declaration that marriage is neither civil nor religious, but rather a natural institution between a man and a woman in order to procreate.
Not only that, but Sprigg also brings up an argument that is all too often used and even employed in the restriction of same-sex marriages: The argument of democracy. It is true that democracy and polls have not affected the outcome of certain marriage rights throughout the twentieth century: “When the U.S. Supreme struck down Virginia’s law [against interracial marriage] and those of 15 other states, fewer than 40 years ago, 72% of Americans opposed interracial marriage, and 48% believed it should be a crime.” [14] Nonetheless, recent history has shown the concept of democracy, and a majority vote, overruling the rights of same-sex couples to marry. As recently as 2008 and 2009, states such as California and Maine have used slim majority votes to overrule same-sex marriage; Proposition 8, a restriction on same-sex marriage in California, won by a 52% vote in November of 2008. In other states such as New York, majorities in senates such as 34 – 26 have barred same-sex marriage from being legal as recently as late 2009. It is clear that the majority of people, no matter how slim the majority is, is against, and has the power to eliminate, same-sex marriage. However, many ask if that is the proper way to handle apparent human rights, similar to the overwhelming opposition of interracial marriage even when it was made legal.
Sprigg argues in support of the majority, mentioning through statistics that “A Gallup poll…showed that opposition to homosexual marriage jumped ten points between June and December 2003, from 55 percent to 65 percent” – noting that this was also after the June 2003 U.S. Supreme Court ruling that homosexual sodomy was a private matter not to be barred federally. [15] Sprigg even claims that some homosexuals themselves are opposed to same-sex marriage, and therefore homosexuals only desire same-sex marriage in order to feel that their love is as valid as heterosexual love. Therefore, Sprigg comes to the conclusion that all homosexuals want is for us to “…demolish the definition of our most basic social institution for no other reason than to boost the sagging self-esteem of a troubled few.” [16] While the argument is starkly general, Sprigg does use a few sources of homosexual professors questioning the effectiveness of laws allowing same-sex marriage, proclaiming that the gay agenda is a desire for affirmation, and that the voices of the people must be heard in order to preserve the apparent stability of the institution of marriage.
However, there are plenty of counter-arguments against such statements that Sprigg makes about the institution of marriage. Evan Wolfson, a supporter of same-sex marriage, brings up the concept that homosexuals are being denied rights equal to heterosexuals, claiming, “…the discriminatory restriction on marriage injures the American commitment to equality for all and respect for each person’s pursuit of happiness.” [17] This statement is a major emphasis on the argument that using democracy to decide the rights of same-sex couples is dangerous, as well as makes same-sex couples second-class citizens. This feeling of being second-class or inferior to others, Wolfson claims, is not only a message being spread by denying same-sex marriage, but it is also a message to homosexuals that they are not welcome in society. He writes, “Gay youth are sent a message of inferiority and exclusion; often before they even know that they are gay, they can sense that their difference means that they will be excluded from an important part of life.” [18] Wolfson, therefore, implies that revoking the right to marry is crossing the line of homosexuals’ human rights, and puts them in danger of being hated and denied basic human rights such as privacy, freedom of expression, and freedom of assembly. It is almost as if Wolfson believes that the ban of same-sex marriage will cause a domino effect and create more havoc for those in society who are being supposedly deemed inferior due to their homosexuality.
Going even further with that argument, Wolfson pinpoints a statement made by Congressman John Lewis of Georgia in 1996 that that the exclusion of same-sex marriage denies homosexuals a basic right as noted in the U.S. Constitution: The right to liberty and the pursuit of happiness. Lewis states: “Marriage is a basic human right. …This bill [the proposed federal antimarriage law of 1996…] stinks of the same fear, hatred and intolerance [as interracial marriage].” [19] This retreats to the basic, but rather vague articles written out in the Universal Declaration of Human Rights, emphasizing Section 1 of Article 16 as well as emphasizing Article 7: “All are equal before the law and…All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination.” [20] The argument of cause-and-effect in terms of denying same-sex marriage is prominent among the defenders of the movement, and as such they would counter statements made by people such as Peter Sprigg that the call for same-sex marriage is not merely situated in the affirmation of homosexuals’ existence; rather, it is also situated in the preservation and protection of homosexuals’ inalienable rights as United States citizens.
Cahill, as a counter to Sprigg’s argument that same-sex marriage is a political agenda, turns the scope back on marriage benefits. He reiterates that homosexual rights are being curtailed, referencing federal protections as being preferential to heterosexual couples: “…there are hundreds of other rights, benefits, and responsibilities automatically conferred upon married couples that have implications at the local and state level…” [21] These rights include, but are not limited to: Social Security, workers’ compensation, employment benefits, medical benefits, immigration benefits, and property rights. While many anti-gay groups would argue that these are benefits, not rights, one must return to the Universal Declaration of Human Rights to be sure. Sure enough, in Article 13, the UDHR states, “Everyone has the right to freedom of movement and residence within the borders of each state.” [22] In a similar manner, Article 22 states that “Everyone, as a member of society, has the right to social security…” [23] while Article 23 states workers’ rights, claiming that “Everyone who works has the right to just and favourable remuneration ensuring for himself and his family an existence worthy of human dignity, and supplemented, if necessary, by other means of social protection.” [24] In this regard, it can be argued that while homosexuals’ worker rights, immigration rights, and social security may not necessarily be violated, they are certainly being curtailed, or cut short. Cahill states that married couples can receive and are receiving preferential treatment, and that homosexual couples, regardless of their orientation, are entitled to those same basic political, social, and economic human rights.
Cahill also seems to counter Sprigg’s argument that the same-sex marriage movement is a political agenda by detailing how anti-gay groups are carrying out a political agenda. He claims that anti-gay groups are promoting an even larger agenda apart from just banning same-sex marriage: “Several of the groups…have led the fight against affirmative action, reproductive choice, immigration, benefits for legal Mexican workers, and the Equal Rights Amendment.” [25] He also adds that “They use language that explicitly promotes intolerance and discrimination against gay people, including gay youth in the schools,” and cites an affirmative statement by the Traditional Values Coalition, a group in opposition of same-sex marriage. [26] By referencing the political agenda of anti-gay groups, Cahill subsequently implies that the groups have no desire to see improvement in any other parts of the United States, such as in terms of its poverty levels or the increasing rate of families that do not have health insurance. He also claims that the groups’ very argument that same-sex marriage will destroy the institution of marriage is “…simply not warranted,” adding that “…anti-gay activists, politicians, and opinion leaders have not presented any evidence, nor have they constructed a compelling argument, that damage would be done to the institution of marriage if gay couples were allowed to marry.” [27] Cahill, therefore, means to overturn Sprigg’s argument that same-sex marriage will cause segregation in the institution of marriage, instead claiming that barring homosexuals from marrying actually divides the institution and restricts members of society from taking part in it.
Those interested in the arguments against or for same-sex marriage will find that there will always be claims that both sides are seeing their rights violated. Peter Sprigg, for example, uses an article from the American Sociological Review in 2001, written by pro-homosexual sociologists Judith Stacey and Timothy Biblarz, that states, “Children of lesbians are more likely to engage in homosexual behavior.” [28] Therefore, Sprigg involves the rights of children as well as the rights of the majority of American citizens as stated in the polls he uses in his arguments. At the same time, Evan Wolfson uses a statement from the Vermont Supreme Court to argue the idea that children’s rights are being violated, claiming that “The exclusion of same-sex couples from the legal protections incident to marriage exposes their children to the precise risks that the State argues the marriage laws are designed to secure against.” [29] Wolfson further specifies this claim by using a study held by the American Academy of Pediatrics in 2002, which states, “…children with parents who are homosexual can have the same advantages and the same expectations for health, adjustment, and development as can children whose parents are heterosexual.” [30] Also, even the Human Rights Campaign is standing behind same-sex couples, claiming, “We are working closely with state leaders across the nation on marriage initiatives and will be fighting to secure equal protections for all LGBT families.” [31] No matter how many people try to separate the institution of marriage from anything involving human rights, they simply cannot avoid human rights, and the rights of same-sex couples and homosexuals in general will come into question if amendments such as the Defense of Marriage Act continue to stay a part of federal law.
For those who support same-sex marriage, there will be a long uphill climb. Still, select states are moving to recognize same-sex marriage as a constitutional as well as a human right, including Governor John Lynch of New Hampshire who signed legislation on June 3rd, 2009, to allow same-sex marriage starting January 1, 2010. Many people will still fight against same-sex marriage, claiming that democracy must not be muffled in the case of the institution of marriage. But the question will always remain concerning what could result from revoking people’s rights to marry or receive equal protection under the law due to their sexual orientation and the opinion of the majority of the nation.
[1] Universal Declaration of Human Rights (UDHR), Article 16, Section 1.
[2] Defense of Marriage Act (DOMA), Public Law No. 104-199, 110 Stat. 2419; Section 1.
[3] Ibid, Section 2.
[4] Sean Cahill, Same-Sex Marriage in the United States: Focus on the Facts, pp. 5-6.
[5] Ibid, Same-Sex Marriage in the United States: Focus on the Facts, p. 7.
[6] Ibid, p. 10.
[7] Ibid, p. 10.
[8] D. Wolfe, Men like us: The GMHC complete guide to gay men’s sexual, physical, and emotional well-being, pp. 102 – 151.
[9] Sean Cahill, Same-Sex Marriage in the United States: Focus on the Facts, p. 14.
[10] Ibid, p. 14.
[11] Peter Sprigg, Outrage: How Gay Activists and Liberal Judges Are Trashing Democracy to Redefine Marriage, p. 58.
[12] Ibid, p. 58.
[13] Ibid, pp. 59 – 60.
[14] E.J. Graff, What is marriage for? The strange social history of our most intimate institution, p. 156.
[15] Peter Sprigg, Outrage: How Gay Activists and Liberal Judges Are Trashing Democracy to Redefine Marriage, p. 82.
[16] Ibid, p. 87.
[17] Evan Wolfson, “Enough Marriage to Share: A Response to Maggie Gallagher,” Marriage and Same-Sex Unions: A Debate, p. 27.
[18] Ibid, p. 27.
[19] Congressman John Lewis, U.S. House of Representatives, July 11, 1996.
[20] Universal Declaration of Human Rights (UDHR), Article 7.
[21] Sean Cahill, Same-Sex Marriage in the United States: Focus on the Facts, p. 17.
[22] Universal Declaration of Human Rights, Article 13, Section 1.
[23] Ibid, Article 22.
[24] Ibid, Article 23, Section 3.
[25] Sean Cahill, Same-Sex Marriage in the United States: Focus on the Facts, p. 24.
[26] Ibid, p. 24.
[27] Ibid, pp. 27-28.
[28] Peter Sprigg, Outrage: How Gay Activists and Liberal Judges Are Trashing Democracy to Redefine Marriage, p. 99.
[29] Baker v. State (Vt. S.Ct).
[30] American Academy of Pediatrics, “Technical Report: Coparent or Second-Parent Adoptions by Same-Sex Parents,” Pediatrics (Feb. 2002), pp. 339 – 340.
[31] Human Rights Campaign, http://www.hrc.org/issues/marriage.asp
Since 2003, the issue of same-sex marriage in the United States has grown increasingly prominent in politics and culture. However, even beforehand, in the 1990s, measures were being taken to prohibit same-sex marriage state-wide and federally. Where does same-sex marriage fall in terms of human rights categories? Is it really up to the states to decide, or is it truly a violation of human rights to prohibit homosexuals from marrying just as heterosexuals do? In order to look at the United States’ possible violations of homosexuals’ rights to marry, it is important to look at marriage as an institution and as a right, as well as recap the various constitutional measures that the country and its states have taken in either stopping or promoting same-sex marriage.
To begin from a broader scope, one must look at the Universal Declaration of Human Rights to determine whether or not the United Nations consider the prohibition of same-sex marriage to be a violation of human rights. According to Article 16 of the UDHR, “Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution.” [1] However, nowhere in the section is sexual orientation mentioned specifically, which would explain why many nations have not enforced marriages for homosexuals. Cultural relativism indeed does play a role in the enforcement of same-sex marriage, and it would explain why only four states (Massachusetts, Connecticut, Iowa, and Vermont) allow same-sex marriage, while five more states recognize some form of same-sex civil union. After all, U.S. history has shown that the movement for same-sex marriage may be a long one, especially when it has been only as recently as the late twentieth century that homosexual rights in general have begun to be recognized in states.
Before moving on to the current struggle of same-sex marriage, it is important to discuss the Federal Defense of Marriage Act (DOMA), passed by Congress and signed into law by President Bill Clinton in 1996. According to the act, “No state (or other political sub-division within the United States) needs to treat a relationship between persons of the same sex as a marriage, even if the relationship is considered a marriage in another state.” [2] It was also the first federal law to define marriage as an institution, claiming, “The federal government defines marriage as a legal union exclusively between one man and one woman.” [3] Not only did the DOMA allow states their own sovereignty to decide whether or not homosexuals were allowed to be married, but it also emphasized many conservative, and perhaps more religious, members of Congress to add implications to the institution of marriage. According to the bill’s twenty-two conservative Republican sponsors, the act was titled as a defense of marriage “…implying that the desire of gay and lesbian couples to marry constitutes an aggression against the traditional heterosexual institution of marriage.” [4] Politicians and professors alike can safely say that this federal act is almost solely responsible for the movement for same-sex marriage being pinpointed as a political agenda, apparently existing to destroy tradition and overthrow the values of a heterosexual marriage institution.
In many ways, such a viewpoint of same-sex marriage has not changed, but in other ways it has violently fluctuated from the end of the twentieth century to the beginning of the twenty-first century. Sean Cahill writes, “A total of 16 states passed anti-gay marriage laws by the end of 1996. Anti-gay marriage bills were defeated or withdrawn in 20 other states. …Another 15 states adopted anti-gay marriage laws in 1997 and 1998. As of early 2004, 39 states have such laws.” [5] In 2003, a resolution was made to amend the U.S. constitution so that marriage was only defined between a man and woman; this was mostly a response to San Francisco, a city that had begun illegally distributing marriage licenses to same-sex couples against the law of the California Supreme Court at the time. According to Cahill, “The Federal Marriage Amendment (FMA) would short-circuit state efforts to legalize marriage for same-sex couples by banning same-sex marriage and prohibiting courts and legislatures from citing state or federal law…to mandate more limited forms of recognition…” [6] By “limited forms of recognition,” the FMA would amend the constitution to prohibit factors such as hospital visitation rights, domestic partner health benefits, and second-parent adoption.
This is where the line between protecting the institution of marriage and the violation of human rights begins to blur. While anti-gay groups claimed that the FMA would still allow some form of same-sex civil union policies, Cahill claims, “By prohibiting the conferral of ‘marital status or the legal incidents thereof’ on same-sex couples…the FMA could jeopardize hard-won domestic partner health benefits and registries…” [7] Basically, any civil unions or recognition of same-sex marriage rights by the few states that allowed it would be jeopardized, obliterating the concept of state sovereignty in order to allow same-sex marriage or unions. The amendment would also, in that regard, curtail judicial rulings in support of same-sex couples’ rights to marry, which could jeopardize the proceedings of a state court. The definition of marriage, therefore, would be decided entirely by the federal government; rather than states not having to recognize same-sex marriage, as stated by the Defense of Marriage Act, states would be barred from ever recognizing same-sex marriage, destroying the option. Not only that, but defenders of same-sex marriage claim that other basic human rights are being violated, or rights as stated in the U.S. Constitution, when same-sex couples do not have the same visitation rights or health benefits as heterosexual couples.
What exactly defines the institution of marriage, besides the bare-bone concept that states it should maintain the traditional heterosexual structure? According to the Massachusetts Court, which recognized same-sex civil marriage in the early years of the twenty-first century, there is a distinction between civil marriage and religious marriage, the latter being a major argument enforced by conservatives and religious leaders in order to stop the same-sex marriage movement. In its ruling, the Massachusetts Court stated that “…civil marriage is…a wholly secular institution. Civil marriage anchors an ordered society by encouraging stable relationships over transient ones.” [8] While this could be classified as an argument for same-sex marriage, it also offers some valid points on how to define the institution of marriage. Peter Gomes, a Harvard University professor, notes, “…the first Puritans saw civil marriage as ‘unscriptural’…in 1629, marriages were solely civil contracts for more than 50 years of early American history. It was only…in 1692 that the clergy were authorized to perform marriages.” [9] Cahill also emphasizes an argument that the defenders of same-sex marriage reiterate to religious leaders over and over again: that civil marriage will not compromise religious rights. “Many legal marriages…are not blessed within particular religious traditions, but the state still recognizes them. Legalization of civil marriage for gay couples will not affect whether a religion will or will not perform or recognize certain marriages.” [10] By separating the concept of civil marriage and religious marriage, the institution of marriage as only for heterosexuals is called into question, especially when looking at the United States historically. While some religious orders are reforming and allowing same-sex marriage, there has been no movement by same-sex couples to force any other religious order, such as the Roman Catholic Church, to perform civil marriages. In this way, an argument is made for civil marriages, to counter religious marriages.
However, anti-gay groups and political leaders continue to stress that the legalization of same-sex marriage, whether civil or religious, will compromise the marriage institution and destroy family and cultural values. Peter Sprigg, in his book, counters the argument that banning same-sex marriage is similar to banning interracial marriage in the 1960s: “Interracial marriage does not change the definition of marriage…Homosexual ‘marriage,’ on the other hand, changes the fundamental definition of the institution, and would form at least three segregated forms of marriage.” [11] Sprigg names these segregated categories as male-only unions, female-only unions, and opposite sex-unions. In contrast to this proclaimed segregation of marriage, Sprigg claims that defining marriage as a union between a man and a woman both religiously and civilly strengthens the concept of marriage rather than divides it. “Rather than building walls between two classes of people, it creates a bridge across the most fundamental gap in humanity – the gap between male and female. Bridging the divide of the sexes by uniting men and women in marriage is common to all human civilizations, and serves the good of society.” [12] While not emphasizing very much at all on the rights of marriage, Sprigg does counter the argument of civil marriage vs. religious marriage, writing, “…civil marriage exists merely to recognize a pre-existing social institution. The state does not create marriage – it merely recognizes it.” [13] In this way, Sprigg founds a declaration that marriage is neither civil nor religious, but rather a natural institution between a man and a woman in order to procreate.
Not only that, but Sprigg also brings up an argument that is all too often used and even employed in the restriction of same-sex marriages: The argument of democracy. It is true that democracy and polls have not affected the outcome of certain marriage rights throughout the twentieth century: “When the U.S. Supreme struck down Virginia’s law [against interracial marriage] and those of 15 other states, fewer than 40 years ago, 72% of Americans opposed interracial marriage, and 48% believed it should be a crime.” [14] Nonetheless, recent history has shown the concept of democracy, and a majority vote, overruling the rights of same-sex couples to marry. As recently as 2008 and 2009, states such as California and Maine have used slim majority votes to overrule same-sex marriage; Proposition 8, a restriction on same-sex marriage in California, won by a 52% vote in November of 2008. In other states such as New York, majorities in senates such as 34 – 26 have barred same-sex marriage from being legal as recently as late 2009. It is clear that the majority of people, no matter how slim the majority is, is against, and has the power to eliminate, same-sex marriage. However, many ask if that is the proper way to handle apparent human rights, similar to the overwhelming opposition of interracial marriage even when it was made legal.
Sprigg argues in support of the majority, mentioning through statistics that “A Gallup poll…showed that opposition to homosexual marriage jumped ten points between June and December 2003, from 55 percent to 65 percent” – noting that this was also after the June 2003 U.S. Supreme Court ruling that homosexual sodomy was a private matter not to be barred federally. [15] Sprigg even claims that some homosexuals themselves are opposed to same-sex marriage, and therefore homosexuals only desire same-sex marriage in order to feel that their love is as valid as heterosexual love. Therefore, Sprigg comes to the conclusion that all homosexuals want is for us to “…demolish the definition of our most basic social institution for no other reason than to boost the sagging self-esteem of a troubled few.” [16] While the argument is starkly general, Sprigg does use a few sources of homosexual professors questioning the effectiveness of laws allowing same-sex marriage, proclaiming that the gay agenda is a desire for affirmation, and that the voices of the people must be heard in order to preserve the apparent stability of the institution of marriage.
However, there are plenty of counter-arguments against such statements that Sprigg makes about the institution of marriage. Evan Wolfson, a supporter of same-sex marriage, brings up the concept that homosexuals are being denied rights equal to heterosexuals, claiming, “…the discriminatory restriction on marriage injures the American commitment to equality for all and respect for each person’s pursuit of happiness.” [17] This statement is a major emphasis on the argument that using democracy to decide the rights of same-sex couples is dangerous, as well as makes same-sex couples second-class citizens. This feeling of being second-class or inferior to others, Wolfson claims, is not only a message being spread by denying same-sex marriage, but it is also a message to homosexuals that they are not welcome in society. He writes, “Gay youth are sent a message of inferiority and exclusion; often before they even know that they are gay, they can sense that their difference means that they will be excluded from an important part of life.” [18] Wolfson, therefore, implies that revoking the right to marry is crossing the line of homosexuals’ human rights, and puts them in danger of being hated and denied basic human rights such as privacy, freedom of expression, and freedom of assembly. It is almost as if Wolfson believes that the ban of same-sex marriage will cause a domino effect and create more havoc for those in society who are being supposedly deemed inferior due to their homosexuality.
Going even further with that argument, Wolfson pinpoints a statement made by Congressman John Lewis of Georgia in 1996 that that the exclusion of same-sex marriage denies homosexuals a basic right as noted in the U.S. Constitution: The right to liberty and the pursuit of happiness. Lewis states: “Marriage is a basic human right. …This bill [the proposed federal antimarriage law of 1996…] stinks of the same fear, hatred and intolerance [as interracial marriage].” [19] This retreats to the basic, but rather vague articles written out in the Universal Declaration of Human Rights, emphasizing Section 1 of Article 16 as well as emphasizing Article 7: “All are equal before the law and…All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination.” [20] The argument of cause-and-effect in terms of denying same-sex marriage is prominent among the defenders of the movement, and as such they would counter statements made by people such as Peter Sprigg that the call for same-sex marriage is not merely situated in the affirmation of homosexuals’ existence; rather, it is also situated in the preservation and protection of homosexuals’ inalienable rights as United States citizens.
Cahill, as a counter to Sprigg’s argument that same-sex marriage is a political agenda, turns the scope back on marriage benefits. He reiterates that homosexual rights are being curtailed, referencing federal protections as being preferential to heterosexual couples: “…there are hundreds of other rights, benefits, and responsibilities automatically conferred upon married couples that have implications at the local and state level…” [21] These rights include, but are not limited to: Social Security, workers’ compensation, employment benefits, medical benefits, immigration benefits, and property rights. While many anti-gay groups would argue that these are benefits, not rights, one must return to the Universal Declaration of Human Rights to be sure. Sure enough, in Article 13, the UDHR states, “Everyone has the right to freedom of movement and residence within the borders of each state.” [22] In a similar manner, Article 22 states that “Everyone, as a member of society, has the right to social security…” [23] while Article 23 states workers’ rights, claiming that “Everyone who works has the right to just and favourable remuneration ensuring for himself and his family an existence worthy of human dignity, and supplemented, if necessary, by other means of social protection.” [24] In this regard, it can be argued that while homosexuals’ worker rights, immigration rights, and social security may not necessarily be violated, they are certainly being curtailed, or cut short. Cahill states that married couples can receive and are receiving preferential treatment, and that homosexual couples, regardless of their orientation, are entitled to those same basic political, social, and economic human rights.
Cahill also seems to counter Sprigg’s argument that the same-sex marriage movement is a political agenda by detailing how anti-gay groups are carrying out a political agenda. He claims that anti-gay groups are promoting an even larger agenda apart from just banning same-sex marriage: “Several of the groups…have led the fight against affirmative action, reproductive choice, immigration, benefits for legal Mexican workers, and the Equal Rights Amendment.” [25] He also adds that “They use language that explicitly promotes intolerance and discrimination against gay people, including gay youth in the schools,” and cites an affirmative statement by the Traditional Values Coalition, a group in opposition of same-sex marriage. [26] By referencing the political agenda of anti-gay groups, Cahill subsequently implies that the groups have no desire to see improvement in any other parts of the United States, such as in terms of its poverty levels or the increasing rate of families that do not have health insurance. He also claims that the groups’ very argument that same-sex marriage will destroy the institution of marriage is “…simply not warranted,” adding that “…anti-gay activists, politicians, and opinion leaders have not presented any evidence, nor have they constructed a compelling argument, that damage would be done to the institution of marriage if gay couples were allowed to marry.” [27] Cahill, therefore, means to overturn Sprigg’s argument that same-sex marriage will cause segregation in the institution of marriage, instead claiming that barring homosexuals from marrying actually divides the institution and restricts members of society from taking part in it.
Those interested in the arguments against or for same-sex marriage will find that there will always be claims that both sides are seeing their rights violated. Peter Sprigg, for example, uses an article from the American Sociological Review in 2001, written by pro-homosexual sociologists Judith Stacey and Timothy Biblarz, that states, “Children of lesbians are more likely to engage in homosexual behavior.” [28] Therefore, Sprigg involves the rights of children as well as the rights of the majority of American citizens as stated in the polls he uses in his arguments. At the same time, Evan Wolfson uses a statement from the Vermont Supreme Court to argue the idea that children’s rights are being violated, claiming that “The exclusion of same-sex couples from the legal protections incident to marriage exposes their children to the precise risks that the State argues the marriage laws are designed to secure against.” [29] Wolfson further specifies this claim by using a study held by the American Academy of Pediatrics in 2002, which states, “…children with parents who are homosexual can have the same advantages and the same expectations for health, adjustment, and development as can children whose parents are heterosexual.” [30] Also, even the Human Rights Campaign is standing behind same-sex couples, claiming, “We are working closely with state leaders across the nation on marriage initiatives and will be fighting to secure equal protections for all LGBT families.” [31] No matter how many people try to separate the institution of marriage from anything involving human rights, they simply cannot avoid human rights, and the rights of same-sex couples and homosexuals in general will come into question if amendments such as the Defense of Marriage Act continue to stay a part of federal law.
For those who support same-sex marriage, there will be a long uphill climb. Still, select states are moving to recognize same-sex marriage as a constitutional as well as a human right, including Governor John Lynch of New Hampshire who signed legislation on June 3rd, 2009, to allow same-sex marriage starting January 1, 2010. Many people will still fight against same-sex marriage, claiming that democracy must not be muffled in the case of the institution of marriage. But the question will always remain concerning what could result from revoking people’s rights to marry or receive equal protection under the law due to their sexual orientation and the opinion of the majority of the nation.
[1] Universal Declaration of Human Rights (UDHR), Article 16, Section 1.
[2] Defense of Marriage Act (DOMA), Public Law No. 104-199, 110 Stat. 2419; Section 1.
[3] Ibid, Section 2.
[4] Sean Cahill, Same-Sex Marriage in the United States: Focus on the Facts, pp. 5-6.
[5] Ibid, Same-Sex Marriage in the United States: Focus on the Facts, p. 7.
[6] Ibid, p. 10.
[7] Ibid, p. 10.
[8] D. Wolfe, Men like us: The GMHC complete guide to gay men’s sexual, physical, and emotional well-being, pp. 102 – 151.
[9] Sean Cahill, Same-Sex Marriage in the United States: Focus on the Facts, p. 14.
[10] Ibid, p. 14.
[11] Peter Sprigg, Outrage: How Gay Activists and Liberal Judges Are Trashing Democracy to Redefine Marriage, p. 58.
[12] Ibid, p. 58.
[13] Ibid, pp. 59 – 60.
[14] E.J. Graff, What is marriage for? The strange social history of our most intimate institution, p. 156.
[15] Peter Sprigg, Outrage: How Gay Activists and Liberal Judges Are Trashing Democracy to Redefine Marriage, p. 82.
[16] Ibid, p. 87.
[17] Evan Wolfson, “Enough Marriage to Share: A Response to Maggie Gallagher,” Marriage and Same-Sex Unions: A Debate, p. 27.
[18] Ibid, p. 27.
[19] Congressman John Lewis, U.S. House of Representatives, July 11, 1996.
[20] Universal Declaration of Human Rights (UDHR), Article 7.
[21] Sean Cahill, Same-Sex Marriage in the United States: Focus on the Facts, p. 17.
[22] Universal Declaration of Human Rights, Article 13, Section 1.
[23] Ibid, Article 22.
[24] Ibid, Article 23, Section 3.
[25] Sean Cahill, Same-Sex Marriage in the United States: Focus on the Facts, p. 24.
[26] Ibid, p. 24.
[27] Ibid, pp. 27-28.
[28] Peter Sprigg, Outrage: How Gay Activists and Liberal Judges Are Trashing Democracy to Redefine Marriage, p. 99.
[29] Baker v. State (Vt. S.Ct).
[30] American Academy of Pediatrics, “Technical Report: Coparent or Second-Parent Adoptions by Same-Sex Parents,” Pediatrics (Feb. 2002), pp. 339 – 340.
[31] Human Rights Campaign, http://www.hrc.org/issues/marriage.asp
This essay was written on December 7th, 2009. I received an A-.
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