Same-sex marriage

Two men marrying in Amsterdam within the first month that marriage was opened to same-sex couples in the Netherlands (2001)

Same-sex marriage (also referred to as gay marriage) is a term for a governmentally, or socially, recognized marriage between two people of the same sex. Same-sex marriage and gay marriage are the most common terms used in news media and politics. Other terms used are included below.

Debates over terminology

File:San Francisco marriage protest.jpg

2004 San Francisco march in support of same-sex marriage

Some proponents of same-sex marriage use the term "equal marriage" to stress that they seek equality as opposed to special rights. Opponents argue that equating same-sex and opposite-sex marriage changes the meaning of marriage and its traditions. Furthermore they frequently use the term "homosexual marriage," and some surveys have suggested that the word "homosexual" is more stigmatizing than the word "gay."

Some have suggested reserving the word "marriage" for religious contexts, and in civil and legal contexts using a uniform concept of civil unions. Harvard Law professor Alan Dershowitz, for instance, writes that such an arrangement would "strengthen the wall of separation between church and state by placing a sacred institution entirely in the hands of the church while placing a secular institution under state control." Some proponents and opponents of same-sex marriage on both sides find such a suggestion impractical. "Why do we suddenly have to throw out the entire system, invent some whole new thing, just because gay people want to get married?," asks Evan Wolfson of Freedom to Marry and a contributor to the landmark cases in Vermont and Massachusetts that led to the legalization of same-sex civil unions and marriages, respectively. "I don’t actually see Alan Dershowitz doing anything about this, other than writing an article, because he probably rightly understands it would be an immense project to go around the country and convince 200 million plus people to trade in their marriage for something new and explain why we are doing this when we actually have a legal system that already clearly distinguishes between civil and religious marriage." Conservative critics in the US like National Review's Jennifer Morse contend that the conflation of marriage with contractual agreements is itself a threat to marriage that "has undermined more heterosexual marriages than anything, with the possible exception of adultery," but has not cited specific evidence to support the claim. However, in the case of one US state in which same-sex marriages are recognized, Massachusetts, there is a long history of marriage being regarded as purely a civil institution, as illustrated in Governor William Bradford's history Of Plymouth Plantation:

May 12 was the first marriage in this place [i.e., Plymouth] which, according to the laudable custom of the Low Countries, in which they had lived, was thought most requisite to be performed by the magistrate, as being a civil thing, upon which many questions about inheritances do depend, with other things most proper to their cognizance and most consonant to the Scriptures (Ruth iv) and nowhere found in the Gospel to be laid on the ministers as a part of their office.

Use of scare quotes in print and online media

Some publications that oppose same-sex marriage adopt an editorial style policy of placing the word marriage in scare quotes ("marriage") when it is used in reference to same-sex couples. In the United States, the mainstream press has largely abandoned this practice. The last major U.S. print daily to employ this editorial style was The Washington Times, which abandoned the policy in February 2008 at the behest of newly appointed editor John Solomon.

Some online publications such as WorldNetDaily and Baptist Press still follow the practice. Cliff Kincaid, editor of the conservative American media-watchdog group Accuracy in Media and president of an anti-U.N. group called America's Survival, agrees with this method, arguing that "marriage" is a legal status denied same-sex couples by most state governments. Same-sex marriage supporters argue that the use of scare quotes is an editorialization that implies inferiority, and point out that the quotes are even used when referring to same-sex marriages in states where such unions are legal.

Associated Press style, which professional journalists in the United States generally adopt, recommends the usages gay marriage and gay marriage amendment with no hyphen and no scare quotes.

History

Main article: History of same-sex unions

There is evidence that same sex unions have occurred since the beginning of recorded history in Egypt, China, Greece, Rome and Japan. Famous lovers include the Egyptian couple Khnumhotep and Niankhkhnum and the Greek couple Harmodius and Aristogiton. The first recorded use of the word "marriage" for same-sex couples occurs during the Roman Empire. A number of marriages are recorded to have taken place during this period. The rise of Christianity changed attitudes to same-sex unions and led to the persecution of gays. In the year 342, the Christian emperors Constantius and Constans declared same-sex marriage to be illegal. In the year 390, the Christian emperors Valentinian II, Theodosius I and Arcadius declared homosexual sex to be illegal and those who were guilty of it were condemned to be publicly burned alive.

Current status

Main article: Status of same-sex marriage

Status of same-sex partnerships in Europe.

  Same sex marriage recognised

  Civil unions recognised

  Unregistered cohabitation recognised

  Issue under political consideration

  Unrecognised or unknown

  Same sex marriage banned

Status of same-sex partnerships in the United States

  Same-sex marriages

  Unions granting rights similar to marriage

  Unions granting limited/enumerated rights

  Foreign same-sex marriages recognized

  Statute bans same-sex marriage

  Constitution bans same-sex marriage

  Constitution bans same-sex marriage and other kinds of same-sex unions

Marriage, as defined by the civil law, is currently available to same-sex couples in six countries. The Netherlands was the first country to allow same-sex marriage in 2001. Same-sex marriages are also legal in Belgium, Canada, Norway, South Africa and Spain, along with two states in the United States, Massachusetts and recently California (for status in California see California Proposition 8 (2008)). In 2005, Spain became the first country in the world to recognize same-sex marriage (including adoption rights) on equal terms and under the same law.

In 1996, the United States Congress passed the Defense of Marriage Act (DOMA) defining marriage as a union between a man and a woman amongst other stipulations. As of May 2007, twenty-six states have passed constitutional amendments explicitly barring the recognition of same-sex marriage., eighteen of which prohibit the legal recognition of any same-sex union. Nineteen additional states have legal statutes that define "marriage" as a union of two persons of the opposite-sex. The territory of Puerto Rico ratified a similar statute in 1998. Nonetheless, some states are beginning to offer legal recognition to same-sex couples, whether in the form of marriage or as civil unions or domestic partnerships.

As of July 8, 2008, Massachusetts and California permit same-sex couples to marry. The states of Vermont, Connecticut, New Jersey and New Hampshire offer civil unions. Also, California and Oregon have domestic partnership laws that grant all of the rights and responsibilities of marriage. Maine, Washington, and the District of Columbia grant certain limited benefits through domestic partnerships, and Hawaii has reciprocal beneficiary laws.

At the federal level, Australia bans recognition of same-sex marriage, but the current federal Australian Labor Party government favours synchronised state and territory registered partnership legislation (as in Tasmania) although the Australian Capital Territory favours the introduction of civil unions with official ceremonies. By stark contrast, same-sex marriage in Canada was preserved when a proposed repeal bill failed at its first reading in 2006, while New Zealand's Parliament similarly heavily defeated a private members bill that would have prohibited same-sex marriage in New Zealand in December 2005. However, as far as current jurisprudence goes, New Zealand's Marriage Act 1955 still recognises only opposite-sex couples as marriageable (although it has also included transsexuals who have undergone reassignment surgery as the 'opposite sex' for these purposes, since Family Court and High Court of New Zealand decisions in 1995.

Israel's High Court of Justice ruled to recognize same-sex marriages performed in other countries, although it is still illegal to perform them within the country. A bill was raised in Knesset to rescind the Israeli High Court's ruling, but the Knesset has not advanced the bill since December 2006. (This makes the practice of same-sex marriage, as far as Israel is concerned, like the performance of a Reform or Conservative Jewish wedding.)

Canada, Spain and Norway are the only countries where the legal status of same-sex marriage is exactly the same as that of opposite-sex marriage, though South Africa is due to fully harmonize its marriage laws. Other nations all have requirements or restrictions that apply to same-sex marriage that do not apply to opposite-sex marriage.

Civil unions and partnerships

Main article: Civil union

The first same-sex union in modern history with government recognition was obtained in Denmark in 1989.

Civil unions, civil partnership, domestic partnership, unregistered partnership/unregistered co-habitation or registered partnerships offer varying amounts of the benefits of marriage and are available in: Andorra, Australia (except Commonwealth law), Colombia, Croatia, Czech Republic, Denmark, Finland, France, Germany, Hungary (unregistered co-habitation since 1996; registered partnership from 2009), Iceland, Israel, Luxembourg, New Zealand, Portugal, Slovenia, Sweden, Switzerland, the United Kingdom and Uruguay. They are also available in some parts of Argentina, Brazil (Rio Grande do Sul), Mexico (Federal District and Coahuila), the U.S. states of California, Connecticut, Hawaii, Maine, New Hampshire, New Jersey, Oregon, Vermont, Washington, and the District of Columbia (Washington, D.C.).

In the United Kingdom, civil partnerships have identical legal status to a marriage, and partners gain all the same benefits and associated legal rights; ranging from tax exemptions and joint property rights, to next-of-kin status and shared parenting responsibilities. Partnership ceremonies are performed by a marriage registrar in exactly the same manner as a secular civil marriage. Civil unions in New Zealand are identical to British civil partnerships in their association with equivalent spousal rights and responsibilities to fully-fledged opposite-sex marriage.

Australia provides under all states, territories and two council areas either a registry system provided in; - Sydney, Melbourne, Tasmania and Victoria; or Unregistered partnership provided in; Queensland, South Australia, Northern Territory, Norfolk Island, Western Australia, Australian Capital Territory and New South Wales. However, Commonwealth law provisions and statutes prohibit the recognition of civil unions, civil partnerships and same-gender marriages; fifty-eight (58) Legislative Acts of the Commonwealth use the phrase 'member of the opposite sex'. However, Commonwealth law still recognises same-sex partner under "interdependancy relationship" for anti-terrorism legislation, migration of same-sex partner, private superannuation schemes and Federal military and ADF services only. In 2007 Grace Abrams and Fiona Power became Australia's first legally recognised same sex married couple [7] after Grace Abrams had gender modification surgery and was later officially granted a passport with female status.

A registered partnership in Scandinavia is nearly equal to marriage, including legal adoption rights in Sweden and, since June, in Iceland as well. These partnership laws are short laws that state that wherever the word "marriage" appears in the country's law will now also be construed to mean "registered partnership" and wherever the word "spouse" appears will now also be construed to mean "registered partner" - thereby transferring the body of marriage laws onto same-sex couples in registered partnerships. In these countries, registered partnerships are generally called marriage in daily speech.

In some countries with legal recognition the actual benefits are minimal. Many people consider civil unions, even those which grant equal rights, inadequate, as they create a separate status, and think they should be replaced by gender-neutral marriage.

International organizations

The terms of employment of the staff of international organizations (not businesses) are not, in most cases, governed by the laws of the country in which their offices are located. Agreements with the host country safeguard these organizations' impartiality with regard to the host and member countries. Hiring and firing practices, working hours and environment, holiday time, pension plans, health insurance and life insurance, salaries, expatriation benefits and general conditions of employment are managed according to rules and regulations proper to each organization. The independence of these organizations gives them the freedom to implement human resource policies which are even contrary to the laws of their host and member countries. A person who is otherwise eligible for employment in Belgium may not become an employee of NATO unless he or she is a citizen of a NATO member state. The World Health Organization has recently banned the recruitment of cigarette smokers. Agencies of the United Nations coordinate some human resource policies amongst themselves.

Despite their relative independence, few organizations currently recognise same-sex partnerships without condition. The Organization for Economic Co-operation and Development (OECD) and the agencies of the United Nations voluntarily discriminate between opposite-sex marriages and same-sex marriages, as well as discriminating between employees on the basis of nationality. These organizations recognize same-sex marriages only if the country of citizenship of the employees in question recognizes the marriage. In some cases, these organizations do offer a limited selection of the benefits normally provided to opposite-sex married couples to de facto partners or domestic partners of their staff, but even individuals who have entered into an opposite-sex civil union in their home country are not guaranteed full recognition of this union in all organizations. However, the World Bank does recognize domestic partners.

Transgender and intersex persons

Main article: Legal aspects of transsexualism

When sex is defined legally, it may be defined by any one of several criteria: the XY sex-determination system, the type of gonads, or the type of external sexual features. By all of these definitions both transsexuals and intersexed individuals are legally categorized into confusing gray areas, and could be prohibited from marrying partners of the "opposite" sex or permitted to marry partners of the "same" sex due to arbitrary legal distinctions. This could result in long-term marriages, as well as recent same-sex marriages, being overturned.

An example of the problem with chromosomal definition would be a woman with Complete Androgen Insensitivity Syndrome (CAIS), who would have a 46,XY karyotype, which is typically male. Although she may have been legally registered as female on her birth certificate, been raised as a female her entire life, have engaged in heterosexual female relationships, and may even have married before the status of her condition was known, using the chromosomal definition of sex could prevent or annul the marriage of a woman with this condition to a man, and similarly allow her to legally marry another woman. These same issues were faced by the IOC to determine who qualified as a female for the women's competitions.

The problems of defining gender by the existence/non-existence of gonads or certain sexual features is complicated by the existence of surgical methods to alter these features. Although it has not been exhaustively stated by a court, it is possible that a court could find that if a person has their gonads removed (not limited to a sex-change but also for medical disorder, such as testicular cancer or removing sexual ambiguity), they would enter a sexual limbo status and fail to meet either set of criteria, thus excluding them from any allowance to marriage. This situation could easily occur through exclusionary findings by separate courts in a state that already does not recognize transsexual marriages to people of the same sex as their birth-sex, as in the case of Linda Kantaras vs. Michael Kantaras. Basing the distinction on genital appearance is complicated by available surgery converting typically male genitalia to typically female genitalia, which has advanced to the point where, even were a genital inspection necessary, many transgendered women would pass this inspection without question.

Requiring a surgical reassignment for definition of gender for the purpose of declaring a marriage valid comes with further problems. The female-to-male sex reassignment surgery is expensive and does not provide results as satisfactory as its counterpart; therefore many female-to-male transsexuals choose not to undergo this procedure. In a situation where genitalia legally defines gender and same-sex marriage is not permitted, the transsexual man would therefore only be allowed to legally marry another man if he wished to marry.

These complications are probably more likely than one would think at first glance; according to the highest estimates (Fausto-Sterling et al., 2000) perhaps 1 percent of live births exhibit some degree of sexual ambiguity, and between 0.1% and 0.2% of live births are ambiguous enough to become the subject of specialist medical attention, including sometimes involuntary surgery to address their sexual ambiguity.

In any legal jurisdiction where marriages are defined without distinction of a requirement of a male and female, these complications do not occur, and some legal jurisdictions may recognize a legal and official change of gender, which would allow one to satisfy the requirement of either "male" or "female" according to their gender-identity within their legal definition of marriage. Although some legal jurisdictions continue to only recognize the "immutable traits determined at birth." (Linda Kantaras vs. Michael Kantaras)

In the United Kingdom, recent legislation (Gender Recognition Act 2004) allows a person who has lived in their chosen gender for at least two years to receive a gender recognition certificate officially recognizing their new gender. Because in the UK marriage is for mixed-sex couples and civil partnership is for same-sex couples, the person must dissolve their marriage or civil partnership before they can get their gender recognition certificate. They are then free to enter into a civil partnership or a marriage again with their former wife, husband, or civil partner.

In countries with legal systems based on the Napoleonic codes, being legally recognized as one's transitioned gender may require conditions of infertility, where if a transsexual were ever found to have had a child, it would result in a reversal of a legal sex change and spontaneous annulment of the marriage if that country does not recognize same-sex marriages.

In the United States, transsexual and intersexual marriages typically run into the complications detailed above. As definitions and enforcement of marriage is defined by the state, these complications will vary from state to state. In Massachusetts no problem should arise in seeking to get a marriage, or enforcing that marriage, however marriage in states that have more prohibitive definitions, any marriage with a transsexual could face challenge in a court based on any number of criteria.

Controversy

Map showing the status of homosexuality laws of the world.

  No information

Homosexuality legal

  Same sex marriages

  Same sex unions

  No same sex unions

  International marriage licenses recognized

Homosexuality illegal

  Minimal penalty

  Large penalty

  Life in prison

  Death penalty

  No info on penalty

The controversy over recognition of same-sex unions as marriages is a small, albeit very important, part of a larger controversy concerning the role of government in recognizing and regulating intimate relationships. While there are few instances of societies recognizing same-sex unions as marriage, the historical and anthropological record reveals a remarkable variety of treatment of same-sex unions ranging from sympathetic toleration to indifference to prohibition. The 2004 Statement by the American Anthropological Association relies upon this variety in reaching its conclusion that same-sex unions can "contribute to stable and humane societies":

The results of more than a century of anthropological research on households, kinship relationships, and families, across cultures and through time, provide no support whatsoever for the view that either civilization or viable social orders depend upon marriage as an exclusively heterosexual institution. Rather, anthropological research supports the conclusion that a vast array of family types, including families built upon same-sex partnerships, can contribute to stable and humane societies.

Some disagree with the idea of government recognition of any marriages, arguing that the personal relationships of citizens are not a proper issue of governmental concern. This view is often expressed by those who see the only legal issues related to marriage involving the nature and extent of parties’ consent to the relationship. Proponents of this view argue that the parties should define almost all aspects of the relationship, in much the same way that parties to other types of contracts are generally free to define the terms of their agreement. Prenuptial and postnuptial agreements arise among those holding this view.

Others, including many gay rights advocates, assert that legal recognition of marriage is based upon the government's interest in encouraging stable, committed relationships. Stable relationships reduce the need for society (sometimes through government) to provide support for its members. Each spouse safeguards the other's well being by, at times, acting as a nurse, banker, policeman, etc. Examples include demanding the keys to the car when one or the other has had too much to drink, or staying home to care for the other after surgery, or paying debts owed by a husband or wife. Advocates for recognition of same-sex unions argue that there is no difference in the ability of same-sex and opposite-sex couples to make commitments and care for each other, and therefore the law of marriage should apply to both.

A third approach to marriage is based on the belief that the government's involvement in marriage arises from the consequences of sexual acts between men and women – namely the creation of children. Based on research showing that, on average, children do best when raised by their biological parents in a low-conflict marriage, proponents argue that legal marriage is society's way of encouraging monogamy and commitment by those who may create children through their sexual coupling. These advocates have been forced to acknowledge that not every opposite couple is capable of creating a child through sexual acts, but they responded by arguing that all laws are over inclusive in some aspect and to create exact congruence marriage and child-bearing capacity would require unacceptable inquiries by government at the time of issuing marriage licences. No such intrusion is necessary to conclude that no sexual act between same-sex partners will result in childbearing, and therefore it is proper to exclude these couples from the legal definition of marriage. However, this does not consider the situation where same-sex couples adopt children, raising questions about the legitimacy of their arguments.

Opponents of marriage within the gay community also object to the same-sex marriage movement, even though their concerns pertain to the institution of marriage, rather than to the gender of its participants. They argue that seeking marriage as a means to social benefits and recognition reinforces the exclusion of other persons, notably the single and those in families composed of three or more intimate partners, from these benefits. From this perspective same-sex marriage is a conservative movement within LGBT politics.

Religious arguments

Historian John Boswell claims the 4th century Christian martyrs Saint Sergius and Saint Bacchus were united in the rite of adelphopoesis, or brother-making, which he calls an early form of religious same-sex marriage

Christian opposition

Some opponents object to same-sex marriage on purely religious grounds. Opponents generally claim that extending marriage rights to same-sex couples could undercut the conventional purpose of marriage as interpreted by religious understanding. Furthermore, opponents frequently argue that same-sex marriage cannot fulfill common procreational roles, and/or sanctions a partnership that is centered around sexual acts that their respective religion prohibits. For example, James Dobson, in Marriage Under Fire and elsewhere, states that legalization or even tolerance of same-sex marriage would redefine the family, damage traditional family unions, and lead to an increase in the number of homosexual couples.

The Roman Catholic Church opposes recognition of same-sex unions, arguing that acts of sexual intimacy are only proper between a man and a woman, and that the proper setting for those acts is only within marriage. Secular government recognition of any other union within the definition of "marriage" would therefore reflect a belief in the moral equivalence of acts between a husband and wife and acts between two men or two women; this belief is contrary to Catholic doctrinal teaching and could in turn, it is feared, form the basis for public education requirements and legal enforcement of that view through laws restricting the actions of those who continue to believe that sexual acts between members of the same sex are not morally acceptable.

Catholic opponents also argue that inclusion of same-sex unions within the definition of marriage would also evidence rejection of the idea that, in general, it is best that children be raised by their biological mother and father, and that it is the community's interest in ensuring the well-being of children that forms the basis for the government's licensure and involvement in marriage.

Conservatives and some moderate Christians further claim that homosexuality goes directly against biblical teaching, and extend this to same-sex marriage. Some Biblical scholars interpret Genesis 19:5 as indicating that homosexual behavior led to the destruction of the ancient cities of Sodom and Gomorrah. Other passages are Leviticus 18:22, Leviticus 20:13, and in the New Testament of the Bible, I Corinthians 6:8-10 and Romans 1:24-27. While these passages do not define the institution of marriage, Genesis 2:22-24 reads as follows: "Then the Lord God made a woman from the rib he had taken out of the man, and he brought her to the man. The man said, 'This is now bone of my bones and flesh of my flesh; she shall be called 'woman,' for she was taken out of man.' For this reason a man will leave his father and mother and be united to his wife, and they will become one flesh." This passage is referred to by Jesus in the New Testament Gospel of Matthew. Furthermore many Christians hold the belef that Romans 1 proscribes all homosexual behavior, regardless of its relational context.

Christian acceptance

Some moderate and liberal Christians claim, however, that Biblical passages concerning homosexual behavior are taken out of full textual, historical and cultural contexts, and are not applicable to homosexual relationships as we know them today. They view the passages about Sodom and Gomorrah as referring to systematic rape and inhospitality. They view the passages in Leviticus as part of the Holiness Code and strictly reserved to the Israelites of that time. Some of this Holiness Code is not practiced by contemporary Christians (e.g., prohibitions on wearing mixed fabrics, a proscription of the consumption of pork, the sacrifice of animals as atonement for sins), while other parts such as the prohibitions on incestuous relations still are. For some modern Christians, the passage in Romans is seen as relating more to specific instances of Graeco-Roman temple sex acts and idolatrous worship and it is not intended to address contemporary homosexuality.

Some modern religions and denominations perform same-sex weddings. At the 1996 Unitarian Universalist General Assembly, delegates voted overwhelmingly that because of "the inherent worth and dignity of every person," same-sex couples should have the same freedom to marry that other couples have.

Judaism

Judaism, like Christianity, reflects differing views between conservative and liberal adherents. Orthodox Judaism maintains the traditional Jewish bans on both sexual acts and marriage amongst members of the same sex. The Orthodox Union in the United States supports a Constitutional amendment banning same-sex marriage. Some Conservative Jews reject recognition of same-sex unions as "marriage," but permit celebration of commitment ceremonies, in part as an expression their belief that scripture requires monogamy of all sexually active couples. Members of Reform Judaism support the inclusion of same-sex unions within the definition of marriage. The Jewish Reconstructionist Federation leaves the choice up to the individual rabbi.

Social arguments

Those who advocate that marriage should be defined exclusively as the union of one man and one woman argue that heterosexual unions provide the procreative foundation of the family unit that is the chief social building block of civilization. Social conservatives and others may see marriage not as a legal construct of the state, but as a naturally occurring "pre-political institution" that the state must recognize as it recognizes other natural institutions such as jobs and families. "Government does not create marriage any more than government creates jobs." They argue that the definition proposed by same-sex marriage advocates changes the social importance of marriage from its natural function of reproduction into a mere legality or freedom to have sex. These sides of the argument may refer to themselves as "defenders" of traditional marriage. As any customary relationship may be considered "marriage," some argue that this then leads to undue legislative burden and an affront to the social value and responsibility of parenting one's own children.

The dissent by Justice Martha Sosman in the decision of the Massachusetts high court that legalized same-sex marriage in that state makes a societal argument without specifying the harm that would occur from this change. Asserting the a priori importance of marriage as an institution, she questions whether the burden of proof that this would be harmless has been met. Her analysis can be seen as an example of precautionary principle, which states that if an action or policy might cause severe or irreversible harm to the public, in the absence of a scientific consensus that harm would not ensue, the burden of proof falls on those who would advocate taking the action.

Marriage is a vocabulary, it’s a vehicle, an engine for a larger discussion that moves people’s understanding of who gay people are, why sex discrimination is wrong, why exclusion is wrong in America, that brings up discussion of the separation of church and state, that brings up discussion of whether there should be limitations or roles based on sex, or whether men and women should be treated equally.

— Evan Wolfson

A common objection to same-sex marriage is that the purpose of marriage is a result of naturally occurring sexual attraction that leads to procreation, and that the same-sex partnership is inherently sterile. Some who hold this view see marriage as the social codification of an evolved long-term mating strategy, with economic and legal benefits to facilitate family growth and stability. Others argue that because the law does not prohibit marriage between sterile heterosexual couples or to women past menopause, the procreation argument cannot reasonably be used against same-sex marriage, particularly since technological advances allow gay couples to have their own related biological children.

Another view is that all marriages should thus be viewed legally as "civil unions." These civil unions would then only receive the benefits of marriage which do not require expenditures from the government (e.g., tax breaks), and any monetary benefits would only be awarded based on the number of children living in a household.

Dissidents to the same-sex marriage movement within the gay community argue that the pursuit of social recognition and legal benefits (e.g., health care insurance) by means of marriage reinforces marriage as an institution of exclusion, because it extends rights and benefits to people on the basis of their relationship status. Some of these rights (e.g., health care insurance), they argue, should be made available to all people, including those who are single and those whose families are composed of three or more intimate partners. Some also argue that seeking marriage as a way of legitimating gay parenting reinforces cultural biases and discrimination against single parents. Lastly, some note that the same-sex marriage movement reinforces a cultural bias against being single in adulthood, treating it as abnormal, undesirable, or immature.

Some same-sex marriage proponents, such as Andrew Sullivan, argue that same-sex marriage is moral enough to support the family-centered role that marriage plays in society despite the absence of biological children. Supporters also argue that the institution of marriage would be strengthened by making it available to more people, and furthermore that same-sex marriage would encourage gays and lesbians to settle down with one partner and raise families. Others argue that marriage no longer retains a procreative function of the government since many governments offer child tax credits and assistance regardless of marital status.

Also, many people argue in favor of same-sex marriage because they say that sexual orientation is uncontrollable. They cite many scientific studies which claim that no one can choose or change their sexual orientation, and that forbidding marriage between two people of the same sex is like forbidding marriage between two people of the same eye color, skin color, or nose length. Some believe that sexual orientation is genetically determined, just like these traits, and thus should not be cited as a basis for discrimination. In contrast, opponents of same-sex marriage (including some ex-gay organizations) argue that homosexuality is not genetic or unchangeable. Same-sex marriage opponents support this position with research as well as anecdotal evidence regarding efforts to overcome unwanted same-sex attractions. Some opponents of same-sex marriage reason that if homosexuality is not genetic or unchangeable, then it is not unjust for government to define marriage as the union of one woman and one man.

Another argument in favor of traditional marriage is that it reflects the biological imperative and innate construct between males and females; that despite the natural desire to procreate, there is also a biological desire to mate with the opposite gender. Hence the fundamental differences between males and females is seen as natural; and such difference exists independently of religion or social prejudice. This view posits that marriage has a universally important shared public meaning, that marriage is the union of a man and a woman.

This meaning has been construed as a constitutive core of the institution. That core meaning is essential in influencing the forming of the individual identity to an extent that common sense readily comprehends.

Arguments about tradition

Proponents of same-sex marriage point out that "traditional" concepts of marriage in actuality have already undergone significant change.

They argue that polygamy has been prohibited, married women are no longer considered the property of their husbands, divorce is legal, contraception within wedlock is allowed, and anti-miscegenation laws forbidding interracial marriage have been eliminated in most modern societies.

The idea that changes in the customs and protocols of marriage often occur gives rise to the argument that marriage is dynamic, and same-sex marriage is only the latest evolution of the institution.

Opponents of such a point of view note that the prohibition of interracial marriage, opposition to polygamy, legality of divorce and the concept of the wife as the property of the husband, have been dependent upon any given society, throughout history. None have been an historical norm, either as accepted or prohibited. These forms of marriage have had varying degrees of acceptance or formation throughout cultures, societies, and civilizations in recorded history. These opponents note that "marriage" between members of the same gender in historical incidence are speculative at best, and in fact have little if any historical record.

Arguments concerning children and the family

Main article: LGBT parenting

In opposing same-sex marriage in various state courts, a common key state's argument against allowing same-sex marriage has been the use of legal marriage to foster the state's interest in human reproduction. In Anderson et al. v. King County in which several same-sex couples argued that the state of Washington's version of the Defense of Marriage Act (DOMA) was unconstitutional, the Washington Supreme Court ruled 5 to 4 that the law was constitutional. Writing in the majority opinion, Justice Barbara Madsen wrote in 2006:

The Legislature was entitled to believe that limiting marriage to opposite-sex couples furthers procreation, essential to the survival of the human race and furthers the well-being of children by encouraging families where children are brought up in homes headed by children's biological parents.

(See also Same-sex marriage in Washington, Same-sex marriage and procreation)

In responding to this argument in 2007, the Washington Defense of Marriage Alliance, a supporter of same-sex marriage, began a petition drive to place a ballot measure on the November 2007 ballot that would require opposite-sex couples who marry to have children within three years or have their marriages become legally unrecognized. Couples seeking a marriage license would also have to show they can produce children. The group admits this ballot initiative aims at calling attention to the Washington Supreme Court's decision in Anderson and the logical extension of this reasoning to childless and/or sterile heterosexual couples.

In terms of numbers, the 2000 U.S. Census reports more than 600,000 same-sex couples (unmarried domestic partners on the Census form) in the United States. The Census Bureau estimates that this number would be over 770,000 in 2005. While a post-Census study by UCLA economist Dr. M.V. Lee Badgett found that there was a significant undercount of same-sex couples in 2000, the Census reports that among the couples answering they are a same-sex couple: one-third of lesbian couples and one-fifth of gay male couples have children under 18 living in the home.

Some object on the grounds that same-sex couples should not be allowed to adopt or raise children or to have access to reproductive technologies, and that same-sex marriage would make such arrangements easier. A number of health and child welfare organizations, however, disagree. They include the Child Welfare League of America, North American Council on Adoptable Children, American Academy of Pediatrics, American Psychiatric Association, American Psychological Association, and the National Association of Social Workers. On July 28, 2004, the American Psychological Association's Council of Representatives adopted a resolution supporting legalization of same-sex civil marriages and opposes discrimination against lesbian and gay parents. Noted Harvard political philosopher and legal scholar John Rawls supported gay marriage and didn't see any problem with it unless it could be shown it would somehow undermine the welfare of children, for which he did not believe there was an argument. He is joined with philosophers Robert Nozick, Martha Nussbaum, Cornel West and Susan Moller Okin among others, who see the issue as a matter of justice within family and society.

Arguments concerning divorce rates

One of four newly wedded same-sex couples in a public wedding at Taiwan Pride 2006.

On an international scale, the most comprehensive study to date on the effect of same-sex marriage / partnership on heterosexual marriage and divorce rates was conducted looking at over 15 years of data from the Scandinavian countries. The study (later part of a book), by researcher Darren Spedale, found that, 15 years after Denmark had granted same-sex couples the rights of marriage, rates of heterosexual marriage in those countries had gone up, and rates of heterosexual divorce had gone down - contradicting the concept that same-sex marriage would have a negative effect on traditional marriage.

All U.S. states submit monthly summaries of vital statistics on births, deaths, marriages, and divorces to the U.S. Center For Disease Control's National Center For Health Statistics (NCHS) who then prepares monthly and yearly reports. The following statistics are based on that NCHS material. Over three years have passed now since same-sex marriage was legalized in Massachusetts and data from all of 2004 and 2005 are now available.

The current divorce trends in Massachusetts counter claims of same-sex marriage having a negative impact on traditional marriage. In fact, for several years now the Commonwealth has had the lowest divorce rate of any state in the union, coupled with near-bottom marriage rates. In 2004 the Massachusetts divorce rate, at 2.2 per 1,000 residents per year, was considerably lower than the U.S. national average rate for that year, 3.8 per 1,000 and close to the national average of 2.0 back in 1940. Massachusetts also has low marriage rates, though: in 2003, when no same-sex marriages were allowed, only 5.6 of each 1000 people did so, making the state 48th in the nation. In 2004, with the allowance of same-sex marriages, the overall marriage rate jumped to 6.5 per 1000. In the first two years of same-sex marriage in the Bay State, the rate of divorce declined, making it likely that Massachusetts will continue to have the lowest divorce rate in the nation.

States which have taken aggressive action against same-sex marriage have not done nearly as well during the two year period of legal same-sex marriage in Massachusetts. The preliminary data from 2004 and 2005—from the 17 U.S. states which have provided data on divorce for 2004 and 2005 and whose voters also passed state constitutional amendments prohibiting same-sex marriage—presents a striking picture: the group of U.S. states arguably most hostile to divorce, those which have passed both state laws and also state constitutional amendments prohibiting same-sex marriage, lag dramatically in terms of divorce rate improvement when compared to same-sex marriage-friendly states.

Among those U.S. states that are most opposed to same-sex marriage which have also provided divorce data for the time period — Arkansas, Kansas, Kentucky, Michigan, Mississippi, Missouri, Nebraska, Nevada, North Dakota, Ohio, Oklahoma, Oregon, Utah, Texas — the average divorce rate (unadjusted for population changes) for 2004 and 2005 increased 1.75%. This group contains 4 of the 5 states with the highest divorce rate increases in the U.S. during 2004 and the first 11 months of 2005.

Arguments concerning equality

Newlywed male same-sex couple at Gaypride 2006 in Reykjavik.

In the United States, there are at least 1,138 federal laws "in which marital status is a factor." (See Rights and responsibilities of marriages in the United States for a partial list) A denial of rights or benefits without substantive due process, assert the proponents of same-sex marriage, directly contradicts the Fourteenth Amendment to the United States Constitution which provides for equal protection of all citizens. For instance, a heterosexual U.S. citizen who marries a foreign partner immediately qualifies to bring that person to the United States, while long-term gay and lesbian binational partners who have spent decades together are denied the same rights, forcing foreign gay partners to seek expensive temporary employer or school-sponsored visas or face separation. See Immigration Equality and Human Rights Watch report on this and other forms of discrimination against same-sex couples.

In a 2003 case titled Lawrence v. Texas, the Supreme Court held that the right to private consensual sexual conduct was protected under the Fourteenth Amendment. The court noted "moral disapproval does not constitute a legitimate governmental interest under the Equal Protection Clause." Both supporters and detractors of same-sex marriage have noted that this ruling paved the way for subsequent decisions invalidating state laws prohibiting same-sex marriage. U.S. Supreme Court Justice Antonin Scalia noted as such in his dissenting opinion to Lawrence.

Some opponents of extending marriage to same-sex couples claim that equality can be achieved with civil unions or other forms of legal recognition that don't go as far as to use the word "marriage" that's used for opposite-sex couples. An opposing argument, used by the Massachusetts Supreme Judicial Court in Goodridge v. Department of Public Health, is the following: "the dissimilitude between the terms "civil marriage" and "civil union" is not innocuous; it is a considered choice of language that reflects a demonstrable assigning of same-sex, largely homosexual, couples to second-class status" and also that "The history of our nation has demonstrated that separate is seldom, if ever, equal." For instance, in matters under federal purview such as immigration, a bi-national same-sex couple committed under civil union do not have the same rights as their married heterosexual counterparts in sponsoring their alien partner for permanent residency. There is however, a bill pending in the United States Congress since 2000, called Uniting American Families Act pertaining to this discrimination.

Parallels to interracial marriage

Opponents of same-sex marriage argue that men and women are fundamentally different from one another, whereas interracial couples still fit within the "one man and one woman" definition of marriage. Louisiana State University law professor Katherine Spaht has characterized the debate as follows: “the fundamental understanding of marriage has always been, by definition, a man and a woman. Never did Webster’s dictionary define the term marriage in terms of the races. There is an inherent difference between interracial marriage and same-sex “marriage” because homosexuals cannot procreate."

Knocking down bans on interracial marriage did not redefine marriage, it affirmed marriage by saying that any man has a right to marry any woman under the law. But what same-sex ‘marriage’ proponents seek to do is to radically redefine the very definition of marriage to say it’s not about gender. Marriage is about bringing the genders together, not keeping the races apart.”

— -Focus on the Family’s Glenn Stanton

Proponents of same-sex marriage make a comparison between racial segregation and segregation of homosexual and heterosexual marriage classifications in civil law. They argue that dividing the concept of same-sex marriage and different-sex marriage is tantamount to "separate but equal" policies (like that overturned in the U.S. Supreme Court case Brown v. Board of Education), or anti-miscegenation laws that were also overturned by the Supreme Court in 1967 in Loving v. Virginia.

In 1972, after the Minnesota Supreme Court's ruling in Baker v. Nelson specifically distinguished Loving as not being applicable to the same-sex marriage debate, the United States Supreme Court dismissed the appeal "for want of a substantial federal question." This type of dismissal usually constitutes a decision on the merits of the case; as such, Baker appeared — at least for a time — to be binding precedent on all lower federal courts.

It is unclear whether Baker v. Nelson remains as a potential bar to the federal courts from hearing cases regarding same-sex marriage. The federal Defense of Marriage Act of 1996 (DOMA) simultaneously created (1) a federal definition of marriage, 1 U.S.C. § 7, and (2) a new rule under the Full Faith and Credit Act (passed pursuant to Congress's authority under the federal Constitution's Full Faith and Credit Clause), 28 U.S.C. § 1738C, purporting to limit mandatory interstate recognition of same-sex marriages. By "federalizing" marriage with statutes that are susceptible to judicial scrutiny, Congress effectively — albeit perhaps unintentionally — expanded the subject-matter jurisdiction of the federal courts, seemingly superseding Baker's dismissal "for want of a substantial federal question."

This loophole in jurisdiction recently came to light when a same-sex couple was granted standing to sue in federal district court on a claim that DOMA is unconstitutional under the federal Constitution. See Smelt v. County of Orange, 374 F. Supp. 2d 861 (C.D. Cal., 2005), aff'd in part and rev'd in part, 447 F.3d 673 (9th Cir. 2006), cert. denied, 127 S. Ct. 396 (2006). In Smelt, the district court applied Pullman abstention to one part of the claim, but it proceeded to the merits on another part, finding DOMA to be constitutional. The United States Court of Appeals for the Ninth Circuit affirmed the district court on the abstention question, but it reversed the district court on the merits, holding that the couple lacked standing to sue. The Ninth Circuit raised the standing question sua sponte, but only because the couple had not demonstrated the requisite injury. The Ninth Circuit left open the possibility that another couple with a demonstrable injury could bring the same suit in the future. Importantly, Baker v. Nelson is mentioned nowhere in the Ninth Circuit's opinion; its continuing relevance is therefore highly suspect.

Beginning in 2003, members of Congress have annually introduced a "court-stripping" provision that would prevent all federal courts from hearing claims challenging the constitutionality of DOMA. See, e.g., Marriage Protection Act of 2003, H.R. 3313 (108th Cong., 1st Sess.). This proposed court-stripping provision has itself been challenged as being of dubious constitutionality. See Jason J. Salvo, Comment, Naked Came I: Jurisdiction-Stripping and the Constitutionality of House Bill 3313, 29 Seattle U. L. Rev. 963 (Summer 2006); Maxim O. Mayer-Cesiano, On Jurisdiction-Stripping: The Proper Scope of Inferior Federal Courts' Independence from Congress, 8 U. Pa. J. Const. L. 559 (May 2006); J. Spencer Jenkins, Note, 'Til Congress Do Us Part: The Marriage Protection Act, Federal Court-Stripping, and Same-Sex Marriage, 40 New Eng. L. Rev. 619 (Winter 2006); Sarah Kroll-Rosenbaum, Note, The Marriage Protection Act: A Lesson in Congressional Over-Reaching, 50 N.Y. L. Sch. L. Rev. 809 (2005-2006); Michael J. Gerhardt, The Constitutional Limits to Court-Stripping, 9 Lewis & Clark L. Rev. 347 (Summer 2005); Theodore J. Weiman, Comment, Jurisdiction Stripping, Constitutional Supremacy, and the Implications of Ex Parte Young, 153 U. Pa. L. Rev. 1677 (2005).

Economic arguments

Economic arguments on the impact of same-sex marriage focus on the effects on same-sex couples, businesses, employers, and governments. Dr. M. V. Lee Badgett, an economist and associate professor at the University of Massachusetts Amherst, has studied the impact of same-sex legal marriage on all four of these groups.

Impact on same-sex couples: Badgett finds that exclusion from legal marriage has an economic impact on same-sex couples. According to a 1997 General Accounting Office study requested by Rep. Henry Hyde (R), at least 1,049 U.S. Federal laws and regulations include reference to marital status. A later 2004 study by the Congressional Budget Office finds 1,138 statutory provisions "in which marital status is a factor in determining or receiving 'benefits, rights, and privileges.'" Many of these laws govern property rights, benefits, and taxation. Same-sex couples are ineligible for spousal and survivor Social Security benefits. Badgett's research finds the resulting difference in Social Security income for same-sex couples compared to opposite-sex married couples is US$5,588 per year. The federal ban on same-sex marriage and benefits through the 1996 Defense of Marriage Act (DOMA) extends to federal government employee benefits. For example, after the 2006 death of former Massachusetts Congressman Gerry Studds (D), the first openly gay member of Congress, his legal spouse Dean Hara was denied the estimated $114,337 annual pension to which Hara would have been eligible if their Massachusetts marriage was recognized on the federal level. According to Badgett's work, same-sex couples face other financial challenges against which legal marriage at least partially shields opposite-sex couples:

• potential loss of couple's home from medical expenses of one partner caring for another gravely ill one

• costs of supporting two households, travel, or emigration out of the U.S. for an American citizen unable to legally marry a non-US citizen

• higher cost of purchasing private insurance for partner and children if company is not one of 18% that offer domestic partner benefits

• higher taxes: unlike a company's contribution to an employee's spouse's health insurance, domestic partner benefits are taxed as additional compensation

• legal costs associated with obtaining domestic partner documents to gain some of the power of attorney, health care decision-making, and inheritance rights granted through legal marriage

• higher health costs associated with lack of insurance and preventative care: 20% of same-sex couples have a member who is uninsured compared to 10% of married opposite-sex couples

• current tax law allows a spouse to inherit an unlimited amount from the deceased without incurring an estate tax but an unmarried partner would have to pay the estate tax on the inheritance from her/his partner

• same-sex couples are not eligible to file jointly or separately as a married couple and thus cannot take the advantages of lower tax rates when the individual income of the partners differs significantly

While state laws grant full marriage rights (Massachusetts) or some or all of the benefits under another name (Vermont, New Jersey, California, etc.), these state laws do not extend the benefits of marriage on the Federal level, and most states do not currently recognize same-sex marriages or civil unions from other states.

One often overlooked aspect of same-sex marriage are the potential negative effects on same-sex couples. While the legal benefits of marriage are numerous, same-sex couples would face the same financial constraints of legal marriage as opposite-sex married couples. Such potential effects include the marriage penalty in taxation. Similarly, while social service providers usually do not count one partner's assets toward the income means test for welfare and disability assistance for the other partner, a legally married couple's joint assets are normally used in calculating whether a married individual qualifies for assistance.

Impact on businesses: Dr. M. V. Lee Badgett's research estimates the potential impact on businesses of same-sex marriage legalization to be $2 billion to the wedding industry alone. Badgett derives this estimate by calculating the amount spent on weddings if a) half of same-sex couples marry and b) each couple spends 1/4 the average amount spent on an opposite-sex wedding (US$27,600 average wedding cost / 4 = US$6,900 per same-sex couple).

Impact on employers: In terms of employers where marriage opponents fear higher benefit costs, Badgett and Mercer Human Resources Consulting separately find less than 1% of employees with a same-sex partner sign up for domestic partner benefits when a company offers them. Badgett finds less than 0.3% of Massachusetts firms' employees signed up for spousal benefits when that state legalized same-sex marriage.

Impact on governments: A 2004 Congressional Budget Office (CBO) report examines the impact of allowing the 1.2 million Americans in same-sex domestic partnerships in the 2000 Census to marry and finds the impact to be comparatively small in terms of the huge Federal budget. While some spending on Federal programs would increase, these outlays would be offset by more savings in other spending areas. The report predicts that if same-sex marriage was legalized in all 50 states and on the Federal level, the U.S. government would bring in a net surplus of US$1 billion per year over the next 10 years. In terms of specific programs' spending the report states:

Recognizing same-sex marriages would increase outlays for Social Security and for the Federal Employees Health Benefits (FEHB) program, CBO estimates, but would reduce spending for Supplemental Security Income (SSI), Medicaid, and Medicare. Effects on other programs would be negligible. Altogether, CBO concludes, recognizing same-sex marriages would affect outlays by less than $50 million a year in either direction through 2009 and reduce them by about $100 million to $200 million annually from 2010 through 2014.

The CBO study counters the economic argument by some U.S. critics of same-sex marriage against governmental recognition on the grounds that the public should not have to shoulder the burden of increased taxes and insurance premiums to cover the associated costs.

Other arguments opposing same-sex marriage

The Weekly Standard commentator Stanley Kurtz argues allowing same-sex marriage blurs other common law precedents and will lead to the legalization of a variety of non-traditional relationships (see Slippery-slope argument).

• Polygamy. The gist of this argument is that the traditional definition of marriage involves two components, a commitment to one person of the opposite sex, and that changing one of these components (restricting it to members of opposite sexes) would necessarily lead to a change in the other component (restricting it to only one person).
• Polyamory. Defined as the practice whereby a person has more than one long term loving relationship in their life, with the knowledge and acceptance of others they are involved with, in whatever form is chosen by those involved. This can include long term stable group marriages, or stable couples who have external partners as well as their 'primary' partner. A polyamorous civil union in the Netherlands in 2005 sparked many comparisons with gay marriage on American conservative blogs.
• Marriages of convenience for tax or other reasons. This however, seems to be more of an argument against government-sanctioned marriage in general, not just same-sex marriage, since couples currently can and do marry for marriage benefits alone.
• Human-animal marriage. Non-human animals, however, do not have the legal capacity to consent into a marriage contract.

See also

• Adelphopoiesis ("brother-making")
• Adoption by same-sex couples
• Blessing of same-sex unions in Christian churches
• Defense of Marriage Act
• Heterosexism
• List of LGBT couples
• Marriage gap
• Marriage rights and obligations
• Marriage, unions and partnerships by country

• Mixed-orientation marriage
• Religion and sexuality
• Same-sex controversy in the U.S. Census 2000
• Same-sex marriage and procreation
• Status of same-sex marriage
• Timeline of same-sex marriage
• Traditional marriage movement
• Uniting American Families Act

Documentaries and literature

• A Union in Wait
• Pursuit of Equality

References

• Mass. governor orders 26 gay marriages registered, Breaking Legal News, April 3, 2007

External links

• Where Can Gays Wed? Newsweek's Interactive Map on same-sex marriage legislation in the United States by Marc Bain, Alicia Parlapiano and Xaquín G.V.
• LA Weekly feature, "California Supreme Court Set to Consider Gay Marriage," Feb. 2008 by Matthew Fleischer
• Today is Freedom to Marry Day - Just Don't Say "Gay Marriage"!, Evan Wolfson, Huffington Post, February 12, 2008.
• 5-15-2008 California Supreme Court Opinion Overturning Ban on Same-Sex Unions
• American Courts on Marriage: Is Marriage Discriminatory? 1998-2008, Joshua Baker, Institute for Marriage and Public Policy, May 2008.

Bibliography

• Boswell, John (1995). The Marriage of Likeness: Same-sex Unions in Pre-modern Europe. New York: Simon Harper and Collins. ISBN 0-00-255508-5.
• Wolfson, Evan (2004). Why Marriage Matters: America, Equality, and Gay People's Right to Marry. New York: Simon & Schuster. ISBN 0-7432-6459-2.
• Boswell, John (1994). Same-sex Unions in Premodern Europe. New York: Villard Books. ISBN 0-679-43228-0.
• Cere, Daniel (2004). Divorcing Marriage: Unveiling the Dangers in Canada's New Social Experiment. Montreal: McGill-Queen's University Press. ISBN 0-7735-2895-4.
• Chauncey, George (2004). Why Marriage?: The History Shaping Today's Debate over Gay Equality. New York: Basic Books. ISBN 0-465-00957-3.
• Dobson, James C. (2004). Marriage Under Fire. Sisters, Or.: Multnomah. ISBN 1-59052-431-4. {{cite book}}: Text "Marriage under Fire: Why We Must Win This War" ignored (help)
• Larocque, Sylvain (2006). Gay Marriage: The Story of a Canadian Social Revolution. Toronto: James Lorimer & Company. ISBN 1-55028-927-6.
• Spedale, Darren (2006). Gay Marriage: For Better or For Worse? What We've Learned From the Evidence. New York: Oxford University Press. ISBN 0-19-518751-2.
• Robert P. George, Jean Bethke Elshtain (Eds.), ed. (2006). The Meaning of Marriage: Family, State, Market, And Morals. Dallas: Spence Publishing Company. ISBN 1-890626-64-3.
• Caramagno, Thomas C. "Irreconcilable Differences? Intellectual Stalemate in the Gay Rights Debate." Westport, CT: Praeger, 2002. ISBN 0-275-97721-8