The American Episcopal Church is meeting and voting on whether they will accept and support gay marriages. I saw this story on CNN headline news this morning as I was getting ready to go to work.

This is news in America because most Christian institutions are opposed to homosexuality in general, and vehemently opposed to giving legal rights to same sex partners. Unfortunately, in America, the church is able to implicity control the government and can force the whole country to bow to its whim.

Why the fuck should I care what the Episcopal Church says about gay marriage? Who cares if Billy Graham is against same sex unions? What is their logical argument against it?

The bible says it is wrong.

That's it. The bible says it is wrong. These people are screwing with the whole country because they think their religion demands it.

People, America is not a theocracy. There is a consititutional separation between the government and organized religion. Your religion is not allowed to make political decisions. You can not tell other people what to do based on your religion or your holy books.

This is the only argument being put forth by those opposed to gay marriages. The only thing they can come up with is a few quotes from their holy book, dismissing the passages that are apparently in favor of homosexual relationships.

Why? Why bother? Why not just let those people do what they want? Why do you have to control something that doesn't affect you at all?

I have known many people in gay/lesbian monogamous relationships. Many of them were a great deal more stable than my own first marriage. Why shouldn't these people be afforded the same rights under law as the rest of us? Where does it say in your bible that fags can't file taxes jointly? Where does it say that lesbians can't apply for a marriage liscense from a courthouse just like everyone else?

America: Please don't let your ignorance ruin my wonderful country.

Ah yes, The Church. As if there were one large church in the United States. The largest of all the denominations in America is the Roman Catholic Church, not the Episcopal. And even they only have 76 million or 28% of 272 million people. All protestant denominations only have 56%. The largest of the protestant denominations, the Southern Baptists, has 16 million followers.

And they certainly do not present a unified front. There is a range of opinion from Reverend Phelps’s "homosexuality is an abomination" to the Metropolitan Community Church with a largely gay congregation. I am of the opinion that the dislike of homosexuality comes more from culture and religion only reflects the opinion of the public. Look at what the Episcopalians are doing, they are voting on if they should bless gay unions or not.

Another point to consider is what influences the young more, the church or the culture of machismo that stereotypes gays as wimps?

I think it is more accurate to say that Americans in general are either uncomfortable or don't care much about homosexuality. So most states do not recognize same sex marriages, but they still exist. I know several of my friends are married, it just has no legal value unless a bunch of power of attorney forms are filled out and a living trust is created to get around the probate laws. But if they do most of the same rights are avalible.

Is it fair? Heck no. But there are a lot of more important things to worry about. Like making homosexuality legal. Six states (Arkansas, Kansas, Maryland, Missouri, Oklahoma, and Texas) still outlaw homosexual acts and two more (Alabama and Ohio) effectively outlaws them by banning sodomy outside marriage and making asking for sex with another male illegal respectively. And a lot still have anti-sodomy laws. Arizona, Florida, Idaho, Louisiana, Massachusetts, Michigan, Minnesota, Mississippi, North Carolina, South Carolina, Utah, and Virginia. Plus Puerto Rico. That's 20 states and the largest US territory.

People will always interpret the bible toward whatever suits their "cause", because they feel it's their "mission" to attempt to "save" the people from "evil" in society.

Be it the Anti-Gay, the KKK, the anti-enjoyment of life because everything's a bloody fucking sin group, the pro lifers... the United States of America isn't the land of the free, it's the land of the illusion of freedom, and the freedom is lessening day by day.

Marriage should be about love, period.

I think my friends should have the freedom to marry whomever they choose, hell I should too.

Then we have psycho "Dr. Laura", the wannabe Doctor who symbolizes much of what is wrong with this country (money-greed-power aside). Very very wicked woman who belives people should only mary within their religion, only marry people of the opposite sex, and is on the bad side of every closed minded issue anyone could think of. A preacher.
Hermetic wrote a number of statements that are factually incorrect:

There is a consititutional separation between the government and organized religion.

This is simply not true. Separation of church and state is not in the Constitution, which only says that the government shall not establish an official religion. This means that the government cannot choose to support one religion over another. However, the Constitution does not prevent the government from giving benefits to religious groups, as long as it gives those benefits equally to all religious groups. For example, the government doesn't tax the property of any religious organization; this is a benefit given to religion in general, but not to any particular religion. That's entirely legal.

(Note to Saige: let's define a religious group as an organization of people who are united by a set of metaphysical principles and who want to join together to express those principles in a social way. Practically, a "religious group" could be humanistic or atheistic--look at the Unitarians. Your point about the free exercise of religion is a good one, but (as you note) it isn't absolute. Furthermore, in order to make a free exercise of religion argument for gay marriage, you'd have to have a religion that mandates gay marriage. As far as I know, no such religion exists in the US.)

Your religion is not allowed to make political decisions.

This is not only false, but it goes against the whole American tradition. Every American is guaranteed the rights of free speech and free association. This means that they have the right to create an organization and to make political statements through that organization. It is just as unconstitutional to prohibit organizations that espouse popular views from exercising their rights of free speech as it is to prohibit unpopular organizations from speaking.

You can not tell other people what to do based on your religion or your holy books.

This isn't really true either. Each person and group in the United States has certain freedoms under the law. As long as those freedoms aren't violated, religious people--just like everyone else--have the right to pursue legislation that limits other people's behavior. If your religion inspires you to force other people to pay their employees a guaranteed minimum wage, to wear motorcycle helmets while riding, or to feed their children, you can tell other people what do do based on your religion.

Actually, I'm in favor of gay marriage. However, it bothers me a great deal when people want to limit my right to free speech simply because they don't like the process I use to come to my conclusions.

There is a consititutional separation between the government and organized religion.

This is simply not true. Separation of church and state is not in the Constitution, which only says that the government shall not establish an official religion.

The actual text of the relevant portion of the first amendment is: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof". There are various interpretations of this. For example, if we read the Letter to the Danbury Baptists by Thomas Jefferson, you see that he intended separation of church and state.

Theoretically, the free exercise clause seems like it would be enough to change the situation. After all, doesn't being legally forced to follow the rules of one religion violate one's rights to freely exercise their beliefs? Though there's not a lot of reason to expect it, after all, the government has eliminated the rights of Mormons to practice bigamy, which would be (or at least would have been, when it was officially condoned by them) a violation of their religious freedom.

And besides, isn't the idea of marriage religious in nature? Aren't they preferring one form of religious belief over another by sanctioning a practice that is not common to all religions?

This means that the government cannot choose to support one religion over another. However, the Constitution does not prevent the government from giving benefits to religious groups, as long as it gives those benefits equally to all religious groups.

Are you suggesting they should be able to give preference to belief over non-belief? Fortunately, the supreme court has, at least part of the time, decided that non-believers should be entitled to their (lack of) belief, and should be treated equally.

I would like to add something to this debate which, although not my personal belief, I found good food for thought.

Hermetic noted that "This (the bible saying homosexuality is wrong) is the only argument being put forth by those opposed to gay marriages." I remember this point I read in a philosophy textbook, which gave me a more rational view of the debate. I will attempt to paraphrase the general idea.

  • Some people involved in the debate are concerned about the "slippery slope" idea. Marriage should be about love, but it's original intention was as a sort of "blessing" so that people could go on to have children, and provide them with a stable household. It's foundation is in procreation. When you redefine the concept of marriage to allow homosexuals to marry, all of a sudden there are countless other examples which arise. A father and daughter, for example. Or a threesome. Or sisters. The lines which currently surround the marriage concept blur.
I thought this was sort of an interesting point - perhaps because it swims in a sea of stupid, ignorant notions and very biased, backwards people. The solution to this might be a sort of of different declaration of love which would entitle the non-married couple to enjoy both the public declaration and the legal rights of married couples.

This debate isn't only limited to religion.

The United States has a divorce rate of 49%.
The United Kingdom -- 53%
Canada -- 45%
Germany -- 41%
Russia -- 65%
France -- 43%
Human Development Report, 1999, United Nations

Why my fellow homosexuals want to emulate a heterosexual practice with such a dubious success rate is beyond me.

Gays have the luxury of not having to worry about community property laws.

As it stands now, they can form a union, with one or more other people and then break it with the same ease with which it was formed.

Gay "marriage" would serve to benefit only one section of society worldwide.

Divorce attorneys.

In the highly charged political and social debate surrounding the issue of gay marriage, representatives on both sides of the argument continue to throw out copious amounts of rhetoric designed to make us believe that their side is the morally and politically correct side. Activists in favor of legalizing gay marriage maintain that marriage is a basic right for all humankind, believing it to be a union between two people no matter what their sexual orientation. The opposition, however, contends that there is an essential complementarity that can only exist between two people of the opposite sex, a bond for which the reward is marriage. While both sides of the issue use strong emotion and logic to promote their arguments, there is little sound evidence to support the claim that homosexual marriage should remain illegal. Instead this position uses only traditional moral values to reinforce an idea based solely upon prejudice and fear.

In some ways, those who oppose gay marriage present a very convincing argument. They prey upon the emotions of their readers, and present the general idea that homophobia and gay marriage are two completely different ideas. For example, Lisa Schiffren states, “…one may feel the same affection for one’s homosexual friends and relatives as for any other, and be genuinely pleased for the happiness they derive from relationships, while opposing gay marriage for principled reasons,” (Schiffren, 1). At first glance, a reader might feel as though this statement were absolutely true. However, when you take a step back, the only real evidence that exists is a human sentiment that homosexual marriage and essentially homosexuality is abnormal, improper, and wrong. This is, by all means, the definition of homophobia. It is this general anti-gay feeling that is deeply ingrained in our culture that prevents us from accepting gay marriage.

A theory that the anti-gay argument tends to champion is the idea of legalized gay marriage being a stepping-stone of sorts for the ultimate decline of all that is moral. In his article “What is wrong with gay marriage” Stanley Kurtz writes that, “…in short gay marriage represents but a critical first step toward the legitimization of multipartner marriages and then, perhaps, the eventual elimination of state-sanctioned marriage as we have known it,” (Kurtz, 6). He goes on to an example in which he defames one of today’s most prominent gay celebrities, Melissa Etheridge. Kurtz alludes to a hypothetical situation in which he states that perhaps, if gay marriage is allowed, there would then be no grounds upon which Etheridge and her partner could then be denied the right to both marry the father of their child. However, by using this example he is only appealing to the sense of basic morality that we all possess, this being that a marriage consists of only one partner. By doing this Kurtz tries to attach an unrelated moral issue viewed extremely negatively by the public to make us believe that gay marriage is simply a gateway to the moral decay of society. When past the emotion, however, there is no hard evidence that proves allowing gay marriage would lead to such an extreme situation. The entire argument is based upon “what ifs,” and while Kurtz would have us believe that such an outcome is natural, he has no basis whatsoever to conclude that this outcome would actually occur in reality.

Kurtz also takes the radical, unsupported position that homosexuals are attempting to create the downfall of Western society. He draws this theory by quoting Michael Bronski, an advocate of same sex marriage, who states, “homosexuality posits ‘a sexuality that is justified by pleasure alone’ and that is ‘completely divorced from the burden of reproduction’; as such it ‘strikes at the heart of organization of Western culture and societies,’ destabilizing both monogamous marriage and the role of two sexually complementary parents within the nuclear family,” (Kurtz, 2000). By intermixing his own ideas with those of a supporter of gay marriage, Kurtz attempts to prove it is not only those opposed to gay marriages that acknowledge it might deteriorate societal norms. However, it must be noted that the strongest arguments against gay marriage come from Kurtz himself, while the Bronski statements are general and easily manipulated into favoring what is clearly not his side of the argument. Since the Bronski statements are out of context, and are also based solely upon opinion, Kurtz once again lacks any solid evidence that would prove the slippery slope theory that gay marriage would in fact lead to a widespread societal downfall.

Another generalized idea that the opposition holds is that, contrary to the beliefs of gay marriage supporters, allowing two gay men to marry will not curb their sexual promiscuity. Lisa Schiffren posits, “What will keep gay marriages together when individuals tire of each other? Similarly, the argument that legal marriage will check promiscuity by gay males raises the question of how a ‘piece of paper’ will do what the threat of AIDS has not,” (Schiffren, 2). While there is seemingly no solid evidence either way, simply stating that something will not work without even giving it a chance is illogical and judgmental. Schiffren also drops in a red herring by bringing up AIDS, which has no relevance on whether or not gay marriage should be legalized. Similarly, she does not even back up her claim about the threat of AIDS; she has no evidence that promiscuity among homosexuals has not been reduced by AIDS, nor does she have any solid evidence that this promiscuity exists in the first place. Frankly, all that Schiffren truly has to stand on is a base of traditionalistic views of homosexuality that have no place in her argument.

Stanley Kurtz also feels that the gay community has, “…put a premium on sexual promiscuity, as well as on rebellion against everything subsumed under the word proper,” (Kurtz, 2). However, he can do nothing except throw ideas like this out, seeing that he truly has no grounds upon which to base them except his own opinion. He creates a rise in emotion by using forceful language, but once again returns to nothing but traditional morals as his evidence. He continues by quoting from an article by William J. Bennett who says, “…legalized marriage would not domesticate gays but rather the reverse: that an often openly and even proudly promiscuous population would fatally undermine an already weakened institution by breaking the bond between marriage and the principle of monogamy,” (Kurtz, 2). Not only is there once again no sound evidence to support the statement, but Bennett creates an enormous generalization about the gay population. It is illogical and judgmental to assume that an entire population fits a stereotype such as promiscuity.

A popular reference used by supporters of gay marriage is the idea of miscegenation. Basically speaking, gay rights advocates feel that their current situation is not unlike that of men and women of different races wishing to marry in the middle part of this century. In response to this claim, the Commonwealth article entitled “The homosexual agenda” states, “…the analogy about miscegenation assumes rather than examines the claim that the differences between heterosexual and homosexual relations are as irrelevant as to moral reasoning and public policy as the differences of skin color,” (Commonwealth, 2). However, people in the fifties and sixties felt that skin color was as much of a moral issue as we believe homosexuality is today. The statement only looks at one side of the idea rather than examining both perspectives and addressing them accordingly.

The final and perhaps the weakest argument made against the legalization of gay marriage is the idea that the exclusive purpose of a marriage is to rear children. Since procreation is physically impossible for all gay couples, many who oppose gay marriage see it as defeating the entire purpose of marriage altogether. Lisa Schiffren states, “Society cares about stability in heterosexual unions because it is critical for raising healthy children and transmitting the values that are the basis of our culture. Whether homosexual relationships endure is of little concern to society,” (Schiffren, 2). She also states that it would be impractical to ban non-child bearing heterosexual marriages because that would be too prying (Schiffren, 2). This is a completely hypocritical statement, for if marriages are based solely upon the creation of children, then the heterosexual relationships aforementioned should not be allowed. In addition, it seems like by discriminating against homosexual marriages, we are prying into their own personal affairs as well.

While the argument against gay marriage seems to be a logically flawed and weak one, there is still a great deal of power and persuasion that remains wrapped in the blanket of morality, tradition, and gut feeling. The power that emotion has is a great one, and no matter what the logical fallacies, it will be difficult to persuade the general public that everything they know as normal is essentially wrong. It is because of this general ideal that gay marriage supporter Wendy Kaminer says, “How do you argue with a feeling? That’s the challenge facing gay rights activists today,” (Kaminer, 2).

I'm a lesbian, and I'm married (to a woman), and here's my $0.02 on the matter.

I think the arguments that are usually made, on either side, are rather limited and tend to ignore what has real impacts on people's daily lives. Yes, I think queer relationships ought to be valued by their communities. Yes, I think that if two guys want to settle down in Yonkers to raise babies and SUVs, there's nothing any more or less moral about that than there would be if they happened to be of different genders. But the moral and social benefits of marriage have little to do any more with marriage as a legal entity. Really, when's the last time you asked a straight couple to whip out their marriage license so you could decide how to judge them morally? Whether or not we, and the relationships we form, are supported and treated with respect by the people around us, has little to do with the vagaries of the law.

So why do I want that piece of paper? So that if I die, my wife will not be automatically cut off from inheriting any of our joint property that happens to be in my name. So if she comes down with a deadly disease and has to spend the rest of her life in the hospital, I can legally visit her, without having to depend on the goodwill of nurses and doctors who may or may not think I have the right to see her. And, especially, so that if and when we have a baby, she will be able to adopt it without lengthy legal battles. So if the sperm donor we haven't seen in ten years has a change of heart and decides to sue us for custody, the court will have to recognize that she has a relationship to our kid. So if I die, our kid won't be separated from its mother and farmed out to foster care or to a sperm donor it may never have even met.

And if my wife or I happened to be from another country, none of this would even be an issue, because we couldn't be together. Period. Being in love, unless you're straight, is not considered a valid reason for immigration to the United States. International gay couples either have the ridiculous amounts of money needed to maintain a really long-distance relationship, or they break up when one of them leaves the country.

I find the moral arguments about gay marriage, both pro and con, rather dilletantish. High rhetoric is all well and good, but it conveniently sidesteps the fact that the law-- as it's currently written-- permits some really atrocious things to happen to queer families.

Legalizing Gay and Lesbian Marriage: An Attempt to End Discrimination in America

Although most Americans would agree that there is still discrimination in America, as seen by minorities and women earning lower incomes than white males, few would agree that discrimination is still a legalized practice. For many, America is seen as a free country, but they do not realize that homosexuals are discriminated in our society by being denied the right to get legally married. There are religious and moral issues that conflict with the desires of homosexuals to get married, but all sides must be explored before a decision to legalize or outlaw homosexual marriage is made.

When campaigning for equal rights, including the right to marry, one of the main arguments made by homosexuals is the fact that homosexuality is natural and not a choice. This concept is explained by Andrew Sullivan , a doctor of political science, when he writes, “Homosexuality is an essentially involuntary condition that can neither be denied nor permanently repressed” (302). In addition to personal beliefs, the idea that homosexuality is a natural occurrence has recently been supported by some medical studies. In 1990, Simon Levay, a doctor of neuroanatomy, discovered that a small section of the human brain, the hypothalamus, in “straight” men is more that two times the size of the hypothalamus of gay men (46). However, this study does not state the cause of homosexuality. Some possible explanation for the decreased size of a homosexual’s hypothalamus could be environmental, genetic, or even a side effect of homosexual activities. But, even though this study does not prove the cause of a decreased hypothalamus size or when the decrease occurs, it suggests that there are inherent biological differences in homosexual brains, which suggests that homosexuality is biological instead of a lifestyle choice.

Along with the support of scientific studies, such as Levay’s, gays and lesbians also validate themselves through the many societies of the past that supported homosexuality. For the past century, historians and literary experts have been studying gay marriages of the past, and they have found “tangible evidence of same-sex marriage in classical Greece, imperial Rome, and medieval Europe” (Eskridge 17). Some evidence that suggests how homosexual unions were accepted in ancient times can be seen in the writings of Plato, a philosopher whose writings greatly influenced the formation of American democracy. In an essay, Plato wrote, “I am convinced that a man who falls in love with a young man of his age is generally prepared to share everything… he is eager, in fact, to spend his life with him” (Eskridge 21). When only looking at the biological and historical arguments of homosexuals and their allies, it is hard to dispute homosexuality as a natural occurrence, but those that disagree present some interesting arguments.

For example, many people that oppose gay and lesbian marriages believe that homosexuality is unnatural, and they think that homosexuals should not be allowed to legally marry. Typically, opposing arguments rely on the Judeo-Christian beliefs that have been a base for American marriages. Gretchen A. Stiers, a doctor of sociology, explains the beliefs of some religions when she writes, “The issue of legitimizing same-sex marriages stirs up strong religious beliefs because it questions both the social and religious conception that marriage is a union between a man and a woman and that its main purpose is procreation” (5). This point was reiterated when the Catholic Church declared, “Sex between two women or two men is not procreative and therefore is immoral and cannot be the basis for marriage” (Eskridge 90). Under this definition of procreation being the underlying purpose of marriage, those against gay and lesbian marriages argue that homosexual marriages would threaten the symbolic meaning of heterosexual marriages because homosexuals cannot procreate on their own (Stiers 8). According to these beliefs, homosexuality is unnatural, and the marriage of two gays or lesbians is inherently wrong. Their arguments make sense in a religious context if one relies on a literal translation of the Bible, but one must wonder how these arguments fit into a legal debate, especially since our government is expected to protect the separation of church and state.

Assuming religion is left out of the debate concerning gay and lesbian marriages, the people that oppose homosexuals claim that homosexuality is a violation of social beliefs. On the stage of right-winged politics, the pursuit of homosexuals to gain the right of marriage is seen as a symbol of our declining society (Stiers 163). In other words, a married homosexual family is far different than the socially accepted families of the past that have typically consisted of a married heterosexual couple and their children. Along with not fitting the stereotypical family image, homosexuals are also seen as sexual deviants by conservatives. James Q. Wilson even accuses homosexuals of having a “great tendency to be promiscuous,” but his assumption is very misguided (311). In fact, most non- religious arguments against homosexuality are based on misconceptions of gay and lesbian lifestyles, and those against homosexual marriage either don’t realize the monogamous relationships between loving homosexuals or they refuse to acknowledge them as monogamous.

Ironically, while some opponents insist on classifying homosexuals as immoral and unworthy of marriage, there are many state laws that are hypocritical on a moral level. As William N. Eskridge, Jr. points out, “No state refuses to issue a marriage license to a couple on the ground that society disapproves of their erotic practices or their sexual orientation—unless they are homosexual” (63). Eskridge goes on and points out a law in Virginia that virtually allows pedophilia, even though Virginia does not allow legalized homosexual weddings. According to Eskridge, “it is statutory rape in Virginia for an adult male to have sex with a girl of fourteen, unless the man subsequently marries the girl” (64). In other words, a pedophile can avoid incrimination as long as he is willing to marry a fourteen year-old girl he is taking advantage of. The hypocrisy of Virginia implying that homosexuals are immoral by denying them the right to marriage, while they practically legalize pedophilia, is an obvious sign of discrimination against gays and lesbians.

When homosexuals are thought of as normal citizens, which is a difficult concept for some opponents, the arguments for homosexual marriage do not seem unreasonable. Opponents generally deny the commitment gay couples have toward each other, even though “a large proportion of American adults who identify themselves as lesbian or gay live with another person of the same sex and regard that person as their life partner” (Chambers 449). Gay and lesbian couples, unlike heterosexuals, are denied the right to legitimize their relationship through the union of marriage, even though they are as committed to their lovers as heterosexual couples, and by denying homosexuals the right to marry, the United States is also denying them of many legal benefits (Stiers 167). Although some homosexuals have symbolic unions of marriage, sometimes even in a liberal church setting, they cannot obtain the privileges heterosexual couples receive after a legalized marriage. For example, without a legal marriage license, homosexual couples cannot be guaranteed the possessions of a lover that dies without leaving a will, become responsible for the life of a critically ill lover that is being hospitalized, have the right to claim a dead lover’s remains, or receive additional Social Security benefits based on a lover’s income (Eskridge 67). Without having the right to marriage, homosexuals are denied many privileges and benefits that are awarded to married heterosexuals, and laws denying homosexuals the right to marry is a legalized form of discrimination.

Fortunately, gays and lesbians are beginning to gain more legal respect, even though more progress still has to be done. In Hawaii and Vermont, homosexual marriages have been legalized, but couples married in these states are not legally recognized throughout the United Sates. Since Hawaii legalized homosexual marriages, “sixteen states have adopted laws declaring that their state does not recognize same-sex marriages even if conducted validly in another state” (Chambers 451). The states that passed these laws were most likely afraid of changing the long-lived belief in the United States that homosexuality is wrong, and they passed these laws as a deliberate attempt to discriminate against homosexuals. Eskridge clearly points out that denying homosexuals the right to marry will eventually seem ridiculous when he writes, “For most of American history, different-race marriages were not acceptable, but that was no argument to perpetuate this discrimination once our society rejected the racist assumptions of that exclusion” (91). Similar to interracial couples of the past, homosexual couples are being discriminated against now, and until the discrimination ends, the United States will never be a truly free country.

In the end, the legalization of homosexual marriage is all a matter of equality. At the current moment, gays and lesbians are denied privileges heterosexuals obtain after becoming legally married, and they are also denied the proof of legalized commitment that heterosexuals can receive. Therefore, homosexual marriages should be legalized in every state at an attempt to end the discrimination of homosexuals. However, legalizing homosexual marriages does not mean churches are expected to legitimize homosexuality in the eyes of God or opponents are expected socialize with the homosexual community. Legalizing homosexual marriage would only represent a victory for gay and lesbian activists because they will finally be allowed the rights and privileges that heterosexuals obtain after marriage.

Works Cited: Chambers, David L. “What If? The Legal Consequences of Marriage and the Legal Needs of Gay and Lesbian Couples.” Michigan Law Review. 95 (1996): 447-491.; Eskridge, William N. Jr. The Case for Same-Sex Marriage: From Sexual Liberty to Civilized Commitment. New York: The Free Press, 1996.; Levay, Simon, and Dean H. Hamer. “Evidence for a Biological Influence In Male Homosexuality.” Scientific America. May 1994: 44-49.; Stiers, Gretchen A. From This Day Forward: Commitment, Marriage, and Family in Lesbian and Gay Relationships. New York: St. Martin’s Press, 1999.; Sullivan, Andrew. “Virtually Normal.” Taking Sides: Clashing Views on Controversial Political Issues. 12th ed. Eds. George McKenna and Stanley Feingold. New York: McGraw-Hill/Dushkin, 2001. 302-306.; Wilson, James Q. “Against Homosexual Marriage.” Taking Sides: Clashing Views on Controversial Political Issues. 12th ed. Eds. George McKenna and Stanley Feingold. New York: McGraw-Hill/Dushkin, 2001. 302-306.

In the United States today, we pride ourselves today on living in a nation conceived in liberty for all. It seems contrary to these roots to hold to a policy of discrimination on the basis of sexual orientation. But the fact remains that our former so called democratic president Bill Clinton signed a law known as the Defense of Marriage Act in 1996 which supports such a legacy of discrimination. The law denies federal recognition to marriages between two people of the same sex. Activists have always found the stark contrast between the name and effect of this law to be rather amusing- the law claims to defend marriage when it in fact works to undermine the efforts of many devoted couples who wish to enter that blessed union. Similar laws denying recognition of same sex marriages at the state level exist around the nation, as conservatives battle homosexuality with flowery speeches about traditional values and the morals of our country.

Such opponents of same sex marriages say that marriage has traditionally been the union of a man and a woman. When I hear this, I cannot help but wonder how many other traditions of marriage they support. There was a time when tradition in this country dictated that marriage was a union between a white man and a white woman- indeed, laws against interracial marriages were not declared unconstitutional by the Supreme Court until 1967. Now, a mere 35 years later, America is faced with a new hurdle to overcome towards true equality for all. Can we as a people learn to overlook sexual orientation in matters of marriage as were learned to overlook race?

Looking back, interracial marriage, like same sex marriage, was once prohibited because it was generally thought to be wrong. But notions of “right” and “wrong” have no place in arguments of liberty! Morals are a personal matter, formed from religion, parental guidance, experiences… all things that can lead to a loathing of homosexuality. Maybe you have heard those around you call homosexuality evil, or perverted, or simply wrong in the eyes of god. But just listen to the ACLU and you will hear exactly the opposite. Thus as long as we as a people do not have a clear moral stance on homosexuality, unified and unbending, how can we ask the government, which is representative of all people, to dictate such a stance for us? We cannot.

More dangerous to the battle to win the right to marriage for all citizens than those who stand by muttering about morals and traditions are those who dismiss outright the necessity of gaining this right for same sex couples. Even some would be supporters of the movement fail to see the importance of marriage to the homosexual community. Perhaps that is because such people have never thought about the rights that marriage provides a couple, rights that they may take for granted. According to the ACLU, among these rights conferred by marriage are the right to visit a partner or a partner's child in a hospital; inherit from your partner if she or he doesn't have a valid will; obtain joint health, home and auto insurance policies; enter joint rental agreements; make medical decisions on a partner's behalf in event of illness; take bereavement or sick leave to care for a partner or a partner's child; and to choose a final resting place for a deceased partner. And when a same sex relationship is not seen as equal to a heterosexual marriage, these rights may be limited or even nonexistent.

Therefore why are these relationships not allowed to reach the same level as those between a man and a woman? Has our country forgotten that when our forefathers wrote the Declaration of Independence, they declared that "all men are created equal"? I’m sure that everyone here is only too familiar with these words. But perhaps there are some among you who have been disregarding them, whether knowingly or not. Because right now, over 30 states have laws that declare gays and lesbians as lesser citizens by denying them the rights and protection they are due. And many of you, whether through careless words or a mere lack of action, are supporting the public legacy of discrimination that keeps these laws in place.

Allow me to elaborate. How many times have you heard the word “gay” used in a derogatory manner today alone? I myself was in my computer science class just a few days ago, and I heard one of my fellow students refer to a broken down computer as gay. The use of the term seemed a bit odd to me- did he mean by that, perhaps, that he had caught the computer in bed with another Macintosh? By calling that broken computer gay, this student had projected society’s opinion that a gay was less than a person, that gays are somehow "broken." Later that day, another student used the word gay when referring to one of their more awkward peers, which again seems to me a strange insult.

I could go on, for the word gay is overused by people in our society and our schools in some very absurd manners. And yet, unless one finds oneself in the presence of one of the more outspoken “queers,” one rarely hears anything referred to mockingly as “straight” or “hetero.” When this country becomes home to a voting body that can refrain from using sexuality as an insult, or indeed from seeing an alternate lifestyle as something to be mocked or scorned, then maybe such unreasoning discrimination as is embodied in the Defense of Marriage Act will become a thing of the past.

The original form of this writing was a diary rant in my online diary at http://www.freeopendiary.com/entrylist.asp?authorcode=A415773.

Same-sex marriage

Consequent upon several judgments finding that the South African law fell foul of the South African Constitution in view of the fact that it recognised the institution of marriage only when concluded between one man and one woman,1 the South African Parliament enacted the Civil Union Act, act number 17 of 2006, the date of commencement being 30 November 2006.  The act was the result of the Constitutional Court ordering government to enact legislation within a specified period of time to deal with the lacuna, and to ensure homosexuals the right to marry.  For many of us, the simple solution was to just alter the common law definition of “marriage” to also apply to people of the same gender who wish to marry one another.  Instead, the legislator opted for an act which creates a “civil union” in a sort of “separate but equal” dispensation.

Homosexuals may now marry one another but it is not called a marriage.  Instead, what they have is a civil union (and judging by what comes out in the wash during divorces, no union is ever very civil).  The objective of the act according to its preamble is “To provide for the solemnisation of civil unions, by way of either a marriage or civil partnership; the legal consequences of civil unions; and to provide for matters incidental thereto.”  In other words, on the face of it, homosexual couples may opt to either marry one another, or to enter into a civil partnership.

Section 2 of the act, however, provides as follows:

The objectives of this Act are-

                        (a)        to regulate the solemnisation and registration of civil unions, by way of either a marriage or a civil partnership; and

                        (b)        to provide for the legal consequences of the solemnisation and registration of civil unions”

As will be noticed, mention is made here of solemnisation of a “marriage” between the people, but the wording persists with the notion of a “civil union”.  However, be that as it may, the act further provides in section 13:

(1) The legal consequences of a marriage contemplated in the Marriage Act apply, with such changes as may be required by the context, to a civil union.

(2) With the exception of the Marriage Act and the Customary Marriages Act,2 any reference to-

                        (a)        marriage in any other law, including the common law, includes, with such changes as may be required by the context, a civil union; and

                        (b)        husband, wife or spouse in any other law, including the common law, includes a civil union partner.

Put differently, the consequences of a civil union once entered into, are intended to be exactly the same as that of marriage.  Then why, one wonders, is an entirely new piece of legislation necessary.  Simply enact a General Law Amendment Act which changes the common law definition of marriage to also include a marriage between persons of the same gender.

Furthermore, the act of marriage between people of the same sex creates other problems.  What, for instance, happens when John and Peter marry each other in South Africa, and then go and live abroad in a country that does not recognise as valid their union?  How do they succeed in obtaining a divorce?  It must be remembered that various patrimonial consequences ensue upon marriage that are unalterable consequences of marriage, such as the duty to maintain the other spouse, which duty continues until a decree of divorce is obtained.  John now leaves Peter.  Can Peter sue him for maintenance in the country where they live, but where their union is not recognised?

What happens in cases where the union is one in community of property and both spouses are equal owners of an undivided half share of the joint estate?  Unless a decree of divorce can be obtained, there can be no judicial and legal division of the estate.

Some would argue that John and Peter can simply return to South Africa and obtain a divorce.  Not so, says South African law.  A court has jurisdiction to adjudicate an action for divorce only where the plaintiff party is in fact domiciled in the jurisdiction of the particular court.  Domicile can not be temporary in terms of the dictates of South African law.  It is of necessity permanent and South African courts still require the plaintiff party to prove domicile in evidence before a decree of divorce is granted.  The plaintiff must assert under oath that he or she lives within the area of jurisdiction of the court, and regards that as his or her permanent home.

Let us suppose John and Peter still live in a country where their union is not recognised by law, and John dies as a result of an accident on his way home from work one evening.  In terms of South African law, the surviving spouse is entitled to maintenance from the deceased estate under certain circumstances.  Where the union is not recognised by the laws of the country where the couple are domiciled, would such an entitlement be upheld?  Or does Peter get left with nothing?

Rules of intestate succession may determine what portion of the deceased estate devolves upon the surviving spouse.  Where the union is not recognised, what is the position?  After all, one would imagine that people marry under the understanding that both are entitled to the patrimonial benefits of marriage, and that they may rely that the consequences they intended will ensue.  In most jurisdictions, the default arrangement is that a marriage solemnised elsewhere will be recognised in so far as it does not offend against the mores, uses and laws of the other country.  Where a country steadfastly refuses to recognise homosexual unions, such union offends against the mores, uses and laws of that country.

The answers to these questions are not simple, for the reason that whatever answer is proposed, it must be an answer that does not only address the specific situation that obtains between Peter and John, it must also be a solution which can be applied equally in any such case where people of the same sex are married.  The foundations of our legal systems are not equipped to deal with this kind of problem.  Roman law was rigid, and proposed solutions for relatively simple situations, where marriage was a simple arrangment between a man and a woman (and life generally was a simple arrangement between man and man), and virtually the entire world has over time accepted that.  While homosexuality was not only known in Rome, it was as far as we can tell not uncommon, and may even at some times have been popular.  But the Romans never considered the possibility that the law would recognise such unions, and then provide legal answers to the perplexing problems such unions raise as matters of law.  When the foundations fail us, one can only wonder about the strength of the edifice.



1 Marriages concluded in terms of Muslim personal law are still not recognised in South Africa as they have the potential of being polygamous.

2 This act regulates marriage between people who live according to the precepts of the traditional indigenous peoples' customs, and allows for one man to marry more than one wife in terms of the indigenous law.

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