Same-Sex Marriage: To Legalize or not to Legalize, that is the Question.

New York City: two people meet each other at a coffee shop and immediately fall in love. After living with each other for a few years they decide that they want to spend the rest of their lives totally committed to each other. When they go to apply for a marriage license in New York, they are rejected because they are both men. Instead of pleading their case for a marriage license they move to Massachusetts to marry. In the United States of America only two states, Massachusetts and California allow same-sex marriages. What is the definition of marriage? Marriage is an institution that pre-dates reliable recorded history; however, most people trace marriage back to the Bible. In today’s society however, one does not have to be religious to be married. Marriage has evolved over many centuries and, like society, it continues to evolve. Federal law should allow same-sex civil unions, more commonly known as marriage, because it is unconstitutional not to and because civil unions, and the benefits that correspond to them, have nothing to do with religion.

Society has evolved and continues to do so, and the Constitution was written to allow for these evolutions. The Constitution of the United States of America is constantly being amended. In the past only White male property owners could vote in the U.S. Then the Constitution was amended to allow Black males the right to vote, then amended again to give women the right to vote. As the definition of who could vote in this country evolved, so too should the definition of marriage evolve from a primarily religious definition:

For centuries, marriage was by definition a contract in which the wife was her husband's legal property. And we changed that. For centuries, marriage was by definition between two people of the same race. And we changed that. We changed these things because we recognized that human dignity is the same whether you are a man or a woman, black or white (Sullivan).

Already the definition of marriage has evolved, now it is time for another evolution.

To determine whether same-sex couples can get married in the eyes of the law, we first have to determine what the definition of marriage is. The American Heritage dictionary defines marriage as “1.a. The state of being husband and wife... b. The legal union of a man and woman as husband wife. 2. The act of marrying or the ceremony of being married; a wedding. 3. Any close union.”  Already we are confused as to what marriage means, because the word is used in so many ways, like many other words in the English language. A marriage of minds could mean that the two minds think alike no matter what sex they are. In some cases this kind of bond or marriage between two people is strong enough for those two people to want to share it with all of their family and friends. However, in every state but two, marriage means the legal union of a man and a woman.

Currently both Massachusetts and California recognize same-sex marriage on par with marriages of the opposite sex. The Massachusetts Supreme Court decided in 2003 that the law forbidding same-sex marriage went against the Massachusetts constitution (Doskow).  Recently, the California Supreme Court came to a similar conclusion; “The majority opinion, by Chief Justice Ronald M. George, declared that any law that discriminates on the basis of sexual orientation will from this point on be constitutionally suspect in California in the same way as laws that discriminate by race or gender” (Dolan). As of June 14, 2008 same-sex couples may marry in California (Doskow). However, on November 4^th the people of California will vote on this issue known as Proposition 8. This proposition reads, “Only marriage between a man and a woman is valid or recognized in California” (Proposition 8). If this proposition passes it will override the California Supreme Court’s decision made in June making same-sex marriage illegal in California. It will not recognize any previously legal same-sex marriages in California or ones from other states. Proponents for this proposition have the same argument that so many others have; they wish to “restore the meaning of marriage to what human history has understood it to be and over 61% of California voters approved just a few years ago” (Proposition 8). They also argue that same-sex couples have the same rights under domestic partnerships/civil unions in California.

[An update on the situation regarding Proposition 8 in California: Proposition 8 narrowly passed, meaning it was approved to amend the state constitution to define marriage as between a man and a woman. Those who were married will retain their rights, possibly, but it has incited numerous peaceful rallies almost daily across the state (peaceful so far) and already been challenged back to the State and potentially the U.S. Supreme Court to challenge the constitutionality of the amendment, both how it was voted on as well as the actual content.  It is the first time in history that the constitution has been amended to take away rather than grant rights. Furthermore, when you analyze the election results, it is really the extra heavy African American vote that came out for Obama but also voted against gay marriage - how can they not understand that civil rights are civil rights, it wasn't so very long ago that the southern system of 'passing for white' was prevalent among blacks of mixed race (mulatto, quadroon etc - the less black you were, the higher on the social scale) - doesn't seem so different from gays who feel the need to stay in the closet to avoid discrimination. The proponents argue that they are 'protecting the family' and yet there is no evidence to show that children raised by gay parents are any better or worse off than children raised by heterosexual parents and specifically absolutely no evidence to show that they end up more homosexual.  In fact what matters is loving adults consistently present in a child's life, regardless of gender or sexual orientation.]

 In response to this same-sex marriage concept came the idea of a civil union and domestic partnerships. The definition of a civil union according to Webster’s New Millennium Dictionary is “a legally recognized and voluntary union of adult parties of the same sex. Parties to a civil union have all the same protections, responsibilities, and rights as partners in marriage.” In Vermont, Connecticut, New Hampshire, and New Jersey same-sex couples can enter into civil unions, which mostly give the same rights to those couples as marriages in that state (Doskow). However, same-sex unions of any kind do not give rights and benefits of marriage under federal law. These include Social Security benefits, immigration privileges, marriage exemption to federal estate, transfer, and gift taxes. In Oregon and Washington same-sex couples can enter into a Domestic Partnership, which is the equivalent of marriage in that state, just like a civil union is in the states that allow those (Doskow). In Maine and D.C. same-sex couples can enter into a Domestic Partnership but the rights are more limited than that of the Domestic Partnerships in Oregon and Washington. In many other states, the law actually bans same-sex couples from marrying, according to Kavan Peterson of stateline.org:

thirty-nine states already prohibit gay and lesbian couples from marrying with laws modeled after the federal Defense of Marriage Act (DOMA). Passed by Congress in 1996, the federal DOMA bars federal recognition of same-sex marriages and allows states to ignore gay marriages performed elsewhere. Four states (Maryland, New Hampshire, Wisconsin and Wyoming) have laws or court rulings prohibiting same-sex marriage that predate the federal DOMA.

Therefore, if a couple gets married in California then returns to their home state of say Idaho, Idaho does not have to recognize that marriage.  However, this doesn’t hold true for heterosexual couples. If they do the same, Idaho must recognize that marriage. This is because the constitution has the full faith and credit clause that protects heterosexual marriages in other states (US Const., Article IV, Section 1).  Here the DOMA is discriminating against same-sex couples based on their sexual orientation, and that is unconstitutional.

The motivation for bans on same-sex marriages often stems from religious people’s belief that God does not want homosexuals to marry. Often religious people use the argument against gay marriage that God defines marriage as “a union between man and woman.” However, nowhere in the Bible does it specifically state that marriage is between a man and a woman. This conclusion is inferred from the numerous passages describing marriage between a man and a woman. However, these same passages to support the “union between man and woman” conclusion also describe marriages between one man and numerous women (polygamous arrangements). For example, 2 Samuel 3: 2-5 states

Sons were born to David in Hebron: His first born was Amnon the son of Ahinoam of Jezreel; his second, Kileab the son of Abigail the widow of Nabal of Carmel; the third, Absalom the son of Maacah daughter of Talmai king of Geshur; the fourth, Adonijah the son of Haggith; the fifth, Shephatiah the son of Abital; and the sixth, Ithream the son of David’s wife Eglah. These were born to David in Hebron (NIV Teen Study Bible).

Let’s summarize here and see what it tells us: David’s wife was Eglah. However, he had sons born from Ahinoam, Abigail, Maacah, Haggith, and Abital. The Bible also states that couples are married in the eyes of God when they have sexual relations and are married in the eyes of the law. So if we are inferring that marriage is between only a man and a woman, according to this passage we can also infer that marriage can be between one man and multiple women. Who are we to define marriage based exclusively on Biblical law and then modify the law to suit our purposes, eliminating what doesn’t suit our needs?

When looking to the Bible for guidance on this issue, one will not find a single reference to same-sex marriage. However, there are three stories of loving, same-sex relationships, though these may or may not have involved sexual activity. Ruth 1:16-17 describes the close friendship of Ruth and Naomi; “Where you go I will go, and where you stay I will stay. Your people will be my people and your God my God. Where you die I will die, and there I will be buried. May the Lord deal with me, be it ever so severely, if anything but death separates you and me” (NIV). This verse is often read at both heterosexual and same-sex marriage ceremonies (Robinson, “The Bible & Same-Sex Marriages”). Also referring to the relationship between Ruth and Naomi, Ruth 1:14 mentions that Ruth “clave” onto her (KJV). This use of semantics is important as “the Hebrew word translated here as “clave” is identical to that used in the description of a heterosexual marriage in Genesis 2:24: ‘Therefore shall a man leave his father and mother and shall cleave unto his wife: and they shall be one flesh’ (KJV). In the Bible there are also several passages about homosexuality though not a homosexual marriage. Leviticus 18:22 states “Do not lie with a man as one lies with a woman; that is detestable” (NIV). However, whether God condemns homosexuality is rather unclear. However, this is not of importance when making the decision of whether the state will allow same-sex marriage. There is separation from church and state in this country, except where marriage is concerned.

This “Separation between Church and State” is never actually written anywhere in the US Constitution. However, the First Amendment of the United States Constitution does state that

“Congress shall make no law respecting an establishment of religion [Establishment clause], or prohibiting the free exercise thereof [Free exercise clause]; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances” (Robinson, “Separation of Church and State”). The Church and state are separated in many ways. In 1948 Supreme Court ruling of McCollum v. Board of Education Dist. 71 the court found that teaching religion in public schools violates the Establishment clause (McCullom v. Board of Education…). In the 1989 Supreme Court ruling of Allegheny County v. ACLU, the court found that a nativity scene displayed in a government building violates the Establishment clause (Allegheny v. ACLU). Same-sex couples are not asking to be accepted by God and religion, or religious institutions, or to be married in the eyes of God; they are asking to be married in eyes of the state. Every state requires a “marriage license” in order to recognize a “marriage”.  Therefore, this becomes an issue of discrimination versus an issue of religion. All arguments against or for same-sex marriage based on religion are therefore not legitimate.

When one looks at this issue one must ask, well, how is the rest of the world handling this issue? The Netherlands, Belgium, Canada, Spain, Norway, and South Africa are the only countries where same-sex marriage is legally the same as opposite-sex marriage. The Netherlands were the first country to grant this right to same-sex couples in 2001. However, most countries aren’t put in the same position as the United States as they don’t have the problem with religious marriage being connected to legal marriage. Here is where the United States gets in a pickle.

The opponents of Gay Marriage may say many things to make same-sex marriage seem like a bad thing with arguments that are not very factual. For example, many of William Bennett’s points, in his essay “Leave Marriage Alone,” to support his argument were both insulting and irrelevant.  He tells us the effects of legalizing same-sex marriage would “change the rules which govern behavior…”(Bennett). This argument is irrelevant as allowing same-sex couples to marry isn’t going to make it ok for people to kill others. Bennett also asserts that allowing gay marriage will “endorse practices which are completely antithetical to the tenets of all the world’s major religions” (Bennett). Marriage is no longer solely a religious ceremony, but is also a legal issue. The state won’t recognize religious ceremonies of marriage without a state marriage license. Also, as Sullivan said, “for centuries, marriage was by definition a contract in which the wife was her husband’s legal property [now amended]… by definition between two people of the same race [now amended]” (Bennett).    

Bennett also believes that allowing same-sex marriage will “send conflicting signals about marriage and sexuality, particularly to the young…”(Bennett). This seems ironic. Are there not conflicting signals about marriage and sexuality in heterosexual couples? According to the Bible, in marriage one is supposed to forsake all others; well this doesn’t always happen. The union is to last until “death do you part.” However, the US divorce rate is the highest in the world: 4.95 per 1,000 people (“People Statistics”). Though the divorce rate isn’t as high as it used to be in the 70’s, it still exists and is a huge part of many people’s lives in this country. If marriage is supposed to be this “sacred thing” then why are we giving conflicting ideas about it to the young by divorce? Divorce exists for very good reasons, but people tend to take advantage of this by eloping in Vegas when they are not entirely competent. How is Brittney Spears’ 55-hour marriage more sacred than that of a homosexual couple who have been devoted to each other for 22 years? If same-sex marriage is threatening the “sacredness” of heterosexual marriage, why aren’t the same people advocating against same-sex marriage also advocating to eliminate all chapels in Vegas? Or perhaps have a clause of commitment that one must abide by the sacred rule of marriage. Bennett also says that allowing same-sex marriage will “obscure marriage’s enormously consequential function- procreation and child-rearing” (Bennett). It is true that same-sex couples can’t make babies. However, do we not have a solution here with the issue of foster children, orphans, and the population growing to excess? If gay couples want to raise a child, we should not deny the child of their choosing their opportunity for a healthy, loving environment, that is most likely better than their current condition, to grow up in.

The issue of same-sex marriage generates strong emotions – in many cases, those advocating against same-sex marriage are merely letting their own prejudices against gay people be their reasoning. If this statement, said by Bennett of Sullivan, were directed in a way to a black person, it would be considered racism; “having employed sexual relativism in his own defense, he has effectively lost the capacity to draw any lines and make moral distinctions” (Bennett). How does supporting (or seeking) gay marriage make him lose his ability to make moral distinctions? It seems that if you asked him is it ok to kill someone for fun that he would say affirmatively no! The analogy here is comparable to telling a black man that because he wants equality with whites that he has lost his ability to make moral distinctions. When determining the legal status of same-sex marriage one cannot allow their previous views and prejudices to influence their views.

No state allows “marriage” without a state issued license - therefore it is not just a religious institution and should not be segregated or subject to discrimination. As I can see it, to make everyone happy we should change how we get married in this country. We can change the semantics of a marriage license to a civil union license, regardless of gender.  Treat all “civil unions” as equal under federal and state laws.  Leave the term “marriage” as a religious term that can be defined by the church.  Then, for the religious, one can get “married” in their church, but no one is precluded from the benefits that accrue to “civil unions”. We as a society will need to continue to evolve as our constitution was intended to. With the increasing number of blended families, same sex unions, single adults and the aging population that will need support - we may need to consider definitions of civil unions (that provide legal rights) outside of the traditional guidelines of “marriage” that have existed for centuries.

Works Cited

"Allegheny v. ACLU." The Oyez Project. 28 Oct 2008 <http://www.oyez.org/cases/1980-1989/1988/1988_87_2050/>. Bennett, William. "Leave Marriage Alone." Newsweek. 3 June 1996. 23 May 2008 <http://www.newsweek.com/id/102334>. 

"civil union." Webster's New Millennium™ Dictionary of English, Preview Edition (v 0.9.7). Lexico Publishing Group, LLC. 18 Jun. 2008. <Dictionary.com http://dictionary.reference.com/browse/civil union>

Dolan, Maura. "California Supreme Court Overturns Gay Marriage Ban." LA Times. 16 May 2008. 18 June 2008 <http://www.latimes.com/news/local/la-me-gaymarriage16-2008may16,0,6182317.story?page=1>.

Doskow, Emily. "Same-Sex Marriage: Developments in the Law." Nolo. 23 May 2008 <http://www.nolo.com/article.cfm/pg/2/objectId/6DF0766E-C4A3-4952-A542F5997196E8B5/catId/64C2C325-5DAF-4BC8-B4761409BA0187C3/118/304/190/ART/>. 

KJV Study Bible. Grand Rapids, MI: Zondervan, 1999.

"Marriage." Def. 1a, 1b, 2, 3. The American Heritage Dictionary of the English Language. 4th ed. 2006.

"McCollum v. Board of Education Dist. 71, 333 U.S. 203 (1948)." The Oyez Project. 11 Jan 2009 <http://www.oyez.org/cases/1940-1949/1947/1947_90/>.

NIV Teen Study Bible. Grand Rapids: Zondervan, 1998.

"People Statistics > Divorce rate (most recent) by country ." NationMaster. 2004. 29 Oct 2008 <http://www.divorcereform.org/nonus.html#anchor5599108>.

"Proposition 8." California General Election Voter's Guide. 11 Aug. 2008. 29 Oct. 2008<http://www.voterguide.sos.ca.gov/title-sum/prop8-title-sum.htm>.

Robinson, B. A. "Separation of Church and State." Religious Tolerance. 14 Dec. 2007. 23 May 2008 <http://www.religioustolerance.org/scs_intr.htm>. 

Robinson, B. A. "The Bible & Same-Sex Marriages." Religious Tolerance. 16 Jan. 2005. 23 May 2008 <http://www.religioustolerance.org/hom_marj.htm>. 

 Sullivan, Andrew. "Let Gays Marry." Newsweek. 3 June 1996. 23 May 2008 <http://www.newsweek.com/id/102333>.