Same-sex marriage challenges the definition of marriage. Conservatives oppose it on moral grounds, claiming it threatens the structure of the Western institution of heterosexual marriage. Others identify the social problem as the institution of marriage itself. Supporters of same-sex marriage identify the social problem as heterosexual hegemony and discrimination against gay, lesbian, bisexual, and transgender people.
Although the institution of marriage versus same-sex unions has been critiqued for centuries, in the late 20th century criticisms began with the feminist and gay/lesbian rights movement and the sexual revolution of the late 1960s. Non-procreative sex and sex outside of marriage, particularly for women, redefined monogamous marriage. Radical feminists viewed marriage as an oppressive institution of patriarchy. The heterosexual monogamous lifestyle was challenged by the strengthening of alternative living arrangements. The focus moved to creating equal rights for lesbian, gay, bisexual, transsexual and transgender, and later inter-sexed, queer, and questioning people (LGBTIQQ). In recent decades, that focus changed to legalization of same-sex marriage.
Same-sex marriage differs from civil unions and domestic partnerships. Domestic partnership refers to policies passed by private businesses, local or state governments, and universities that provide legal protections such as health insurance benefits for same-sex couples and unmarried heterosexual couples. However, it doesn’t provide constitutional rights such as a guarantee to due process, marriage as a fundamental right, freedom of association, and the right to equal protection. Some domestic partner benefits require that the employed partner pay taxes on the dependent partner’s benefits.
Civil unions are legal partnerships recognized by local or state governments but do not carry the same weight as marriage. Only marriage allows for the 1,138 federal benefits such as Social Security survivor or spousal benefits, workers’ compensation, and public assistance; the ability to file a joint tax return and other tax benefits; estate benefits; immigration rights; military and veteran’s benefits; and coverage under the Family and Medical Leave Act. The argument for same-sex marriage is likened to ending anti-interracial marriage laws in the United States in 1967 as evidenced in the Loving v. Virginia decision. Meanwhile, civil unions allow states to circumvent constitutional amendments that define marriage as a union between a man and a woman.
The current debate over same-sex marriage focuses on federal policies, court rulings, state laws, and city ordinances. The 1996 Defense of Marriage Act, or DOMA, creates an exception to the Full Faith and Credit Clause of the U.S. Constitution, which allows for enforcement of contracts and other state laws across state lines. DOMA defines marriage as a union between one man and one woman for purposes of federal law and allows states to refuse to acknowledge the legality of same-sex marriages performed in other states. DOMA passed in reaction to a 1993 Hawaii supreme court ruling stating it was gender discrimination to deny lesbian and gay couples the right to obtain a marriage license. In 1998, Hawaii passed a constitutional amendment outlawing same-sex marriage.
The Federal Marriage Amendment seeks to further fight state efforts to legalize same-sex marriage by amending the U.S. Constitution. Introduced in 2003, it would make only different-sexed marriage legal. To date, it has not passed either house of Congress.
However, three 2003 landmark court rulings paved the way for the recent focus on same-sex marriage: (1) Ontario, Canada, granted same-sex couples the right to marry under the Charter of Rights; (2) the U.S. Supreme Court stated anti-gay sodomy laws violate the U.S. Constitution’s right to privacy; and (3) the Massachusetts supreme court stated denial of same-sex marriage violates the constitutional guarantees of equal protection and due process.
Mayors in several U.S. cities defied state law and issued marriage licenses to same-sex couples. Beginning in San Francisco in 2004, the mayors issued marriage licenses followed by civil ceremonies. These acts of civil disobedience renewed the national debate.
States passed constitutional amendments to ban same-sex marriage. Only 11 states had avoided anti-same-sex marriage legislative activity by 2004; several states passed “Super-DOMAs.” Conversely, Massachusetts recently legalized same-sex marriages; Connecticut, New Jersey, and Vermont legalized statewide civil unions.
The lack of recognition of same-sex marriage is also a threat to heterosexual transsexuals. Prior to 2002, if a state allowed the marriage of a post-transition person to the opposite sex, the U.S. government honored it for immigration purposes. In 2002, the United States ended this practice. Rulings against this policy exist; however, it is still enforced.
In the United States, marriage is both a civil and religious institution. The legislation discussed applies only to civil marriage. Just as some religious bodies do not recognize divorce or interfaith marriages, some also do not recognize same-sex marriages. Some religious denominations—Reform and Reconstructionist Judaism, Unitarianism, select United Church of Christ congregations, and Episcopalian congregations— have sanctioned same-sex marriage as a religious contract.
Several countries have pro-same-sex couple laws, including Australia, Belgium, Brazil, Canada, Croatia, Denmark, Finland, Germany, Hungary, Iceland, Israel, Netherlands, New Zealand, Norway, Portugal, Slovenia, South Africa, Spain, Sweden, Switzerland, and the United Kingdom. Internationally, Mexico City legalized it.
Whether same-sex marriage violates the values of those who see it as mimicking a heterosexually privileged institution or those who see it as a threat to the foundation of traditional marriage and the nuclear family, or finds support from those who see it as denying equal rights to same-sex couples and their children, it has created a flurry of policy changes. This attention has changed the face of civil rights discourse for LGBTIQQ people.
- Cahill, Sean. 2004. Same-Sex Marriage in the United States: Focus on the Facts. Lanham, MD: Lexington Books.
- Human Rights Campaign. 2006. “Coming Out.” Retrieved March 25, 2017 (http://www.hrc.org/explore/topic/coming-out).
- Sullivan, A. 2004. Same-Sex Marriage: Pro and Con, A Reader. New York: Vintage Books.
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