The Freedom To Marry Law Family Essay

Published Date: 02 Nov 2017

By

Truong An Phuong (Jean)

ESL 408 Section E

Instructor: Ms. Cheryl Arnold

15th February 2013

Abstract

The purpose of this research paper is to explore the nature of legal struggles surrounding homosexual marriage in the United States, focusing particularly on giving reasons to support gay marriages on civil and religious grounds, as well as examining the trend towards legalizing it. Even though there has been a significant amount of extensive researches aimed to explore the struggles over formalizing gay marriage, each research presents different ideas and theoretical perspectives upon this controversial issue, making it hard for readers to quickly get the gist of the general situation of homosexual marriage in the United States. Hence, this paper gathers information and data from various literature resources; then provides more wide-ranging, objective and insightful viewpoints from both sides of the spectrum. These findings indicate that since people started realizing homosexual individuals are not "lesser" in any way, they are becoming more open-minded to accept the legal recognition of marriage for gay and lesbian couples.

Table of Contents

The Freedom to Marry

The topic of same sex marriage or gay marriage is socially recognized. When it comes to discussions about same sex marriage, the definition of the term "marriage" itself is usually taken into reconsideration. Marriage is the legal institution between a man and a woman as husband and wife, whereas same sex marriage is the union between two same sex partners joins together in the promise of love, providing emotional satisfaction to each other (Milne, 2011). Indeed, the difference between two kinds of marriage is simply the issue of legalization, which has raised a controversial debate worldwide. Those who support same sex marriage often argue that restricting the recognition of marriage to gay and lesbian couples violates the fundamental civil right of equality (Rauch, 2004). In fact, homosexual couples should not be discriminated but receiving the same privilege to get married as heterosexual counterparts. On the other hand, those who respect traditional marriage often mention religious beliefs on homosexual individuals’ ability to procreate as the primary rationale for their opposition. This paper will provide reasons for supporting homosexual marriages as well as discussing about the trend toward legalizing them in the United States. However, since secondary analysis is proposed as the main approach to generate this research problem, the limitations encountered in this research paper would include not delivering new perspectives but giving readers more general and objective viewpoints about the contentious issue on same-sex marriage.

Issues on Same-Sex Marriage

Firstly, male-female marriage, which has always been a general legal standard, is considered to be rooted in human nature and thus governed by natural law. Therefore, on May 17, 2004, when Massachusetts became the first state in America to legalize the recognition of homosexual marriage, opponents argued that the formalization of gay marriage would violate the "natural law" (Mercier, 2008). They claimed this shift would lead civil marriage to an institution that undermines the essential and natural facet of marriage, with regard to the very nature of enduring relationships between a man and a woman as well as their capability to procreate (Allen, 2011). Hence, according to Family Research Council, since gays and lesbians are unlikely to engage in committed relationship or build a strong family identity as heterosexual counterparts, they should not be granted the right to marry.

Secondly, according to Pew Research Center, the debate over gay marriage has been a primary concern within the major religious group of America – Christianity, and even within many minor religious groups including Buddhist, Islam, and Orthodox Judaism. While Buddhist opposes to same sex unions generate in the belief in the Law of Karma, Christianity and other major Christian faith-based groups build their viewpoint upon their sacred text, the Bible (Newport, 2012). According to the Bible, it is indicated that marriage is a blessed religious sacrament which is bound by the Church’s legal jurisdiction and regulation. To be more specific, marriage which has been blessed by God should be merely existed between a man and a woman. Hence, when homosexual marriage that clashes with Christian beliefs enters into without the religious blessing, it would be considered "improper" (Milne, 2011).

Thirdly, even though the number of children living in households headed by same-sex parents accounts for less than one percent of all children in America, these families have yielded a significant amount of public attention (Potter, 2012). Opponents of homosexual argue that marriage is the institution that aims to promote the reproduction of the couples and ensure the well-being of their children (Finnis, n.d.). Thus, since homosexual couples fail to meet those minimum standards, the recognition of gay marriages should not be permitted as they can bring detrimental influences to children (Dobson, 2004). In addition, due to the fact that same-sex couples are currently not allowed access to numbers of basic rights such as Social Security survivor benefits or inheritance rights, they cannot ensure their children a promising future, whereas heterosexual couples are provided financial security if a spouse dies or is disabled (Meezan & Rauch, 2005). Taking advantage of this fundamental point, opponents of homosexual marriage emphasize that why should they support the legal recognition when nothing is guaranteed?

Lastly, culture is the conceptual lenses that help human beings make sense of the world around us (Knauff, 2006). In other worlds, culture, where marriage is a crucial component of, helps shape our ideas about sex, sexuality, human relationships, and even our sense of self. Hence, since the traditional concept of marriage which is a union between a man and a woman has always been our "norm" and our cultural value, anything that stands in its way would challenge human beings’ basic identities. In a Harvard Law Review article, it states that the legal recognition of homosexual marriage can cause certain corresponding social harms. Moreover, it causes harms to the rational foundation and even social practices regarding marital norms on which social order depends (Ruse, 2013).

Even though there is a great number of argument that opponents uses as a defense when it comes to the legal recognition of marriage for homosexual community, we still have to take into consideration other crucial principles. Therefore, the following parts of this research paper aim to provide objective information of the formalization of same-sex marriage as well as provide reasons why we should support the LGBT community.

Reasons to Support Same-Sex Marriage

Basic Civil Rights: Love and Equality

Since basic civil rights will be taken as the primary arguments against opponents who do not approve the right to marry for LGBT community (lesbian, gay, bisexual, transgender community), to begin with, we have to take into consideration the history of civil rights in order to obtain a wide-ranging provision. Long ago, marriage was established for the sake of sacramental, covenantal, biblical, or patriarchal beliefs (Milne, 2009). In the very essence of this traditional concept, once married, the wife essentially became her husband’s property while the man took all of her assets and became the head of the household. To put it differently, after becoming married, a woman no longer has a legal personal identity while a man represented them both (Baker, 2005). However, according to John Locke, the representative of Enlightenment thinkers, government was a voluntary social contract; thus marriage was also a voluntary familial one. Consequently, in relation to this "contractarian" model of marriage, individuals who entered into a marital contract would have access to equal power and preserve equivalent status. In time, these ideas of the Enlightenment, with emphasis on liberty, equality, individuality, reasons, and freedom of contract revolutionized the nature of marriage and family life in America by providing the philosophical keystones for the new nation’s founding documents including the Declaration of Independence, the Articles of Confederation, and the United States Constitution (Milne, 2011).

According to United States Declaration of Independence written by Thomas Jefferson on July 4, 1776, it states that equality, liberty, and pursuit of happiness are three fundamental civil rights of people. Thus, the government should embrace equality and provide every human being with the ability to fulfill our life according to our choices, as long as they do not cause harms to society. In general, treatments given to heterosexual or homosexual individuals are similar to each other. Nevertheless, on the particular matter of marriage, homosexual couples still have restricted access to the institution of marriage that guarantees equal privileges and benefits, including insurance, compensation, visitation, inheritance rights as heterosexual counterparts. To put it differently, prohibiting homosexual marriage creates a class of people with unequal citizenship. Hence, in recent years, in order to resolve these problems, the government has developed a variety of alternatives intended to provide gay couples equal citizenship such as civil unions or domestic partnerships. Even though these substitutions offer almost the same privileges as marriage, they still pass no federal benefits or protections for homosexual couples. It means that these rights are merely valid within the particular state that gay couple lives; however, if that gay couple were to cross the state line, their rights would be revoked by any other states (Baker, 2010). More importantly, those alternatives which are supposed to help solve the controversial issue have, instead, created an unfair system that merely promotes straight citizens, making one sexual orientation superior to the other. To make it worse, by prohibiting same sex couples the right to marry, we are essentially supporting the discrimination against a specific group of people (Allen, 2011).

In short, the entirety of the gay marriage movement could be narrowed down to this point: society has reflected its societal judgment that homosexuals are lesser in some way. However, there have been no scientific proves that conclude homosexuality is an intrinsic disorder (Potter, 2012). Hence, since there is nothing wrong with homosexual individuals, and life is all about freedom and equality, why do we hesitate to support them?

Religious Aspects

The separation of Church and State. It is undeniable that the idea of accepting the right to marry for two people of the same gender has brought out extreme emotions and responses from various different religious groups, especially Christianity. As a matter of fact, since a major proportion of seventy-six percent of America’s population are Christians (United States Census Bureau, 2008), they are considered to be the single most prominent force in the attempt to keep the institution of homosexual marriage unauthorized (Baker, 2010). Indeed, the fact that individuals or churches treat marriage as sacred or sacramental cannot be judged. However, we should put into consideration that in the real world, it is authority, not the church court to hold the main key to this very matter. In other words, no government has to legislate under the influence of any religious teachings. Inspired by British philosopher John Locke, Thomas Jefferson, who was the third president of the United States, reintroduced the phrase "separation of church and state" when he was talking about the First Amendment. He made it clear that the United States government should not establish a state religion like in England but to have a separation between church and states. By doing so, this insightful compromise would help avoid that if the power was centralized, the authorities could not use church as a source of power and do whatever they choose (Flax, 2011). Today, no religious group has any legitimate power to be in charge of the public institution of marriage (Baker, 2010). Even though many people choose to involve religion in their marriage, they still have to first inform the authority before celebrating the ceremony. Therefore, reconsidering our controversial issue of same-sex marriage and religion, it can be inferred that religion, in general, has nothing to do with any decision making on permitting homosexual marriage. More importantly, according to Elijah L. Milne who is the Law professor of Columbia University, the so-called "traditional" meaning of marriage, which defines marriage as the union of a man and a woman, is even considered as "an unlawful establishment of religion in contravention of the intent of the First Amendment of the United States Constitution" (2011). In summary, why do we hesitate to support same sex marriage?

Family and procreation. The second most common religious argument against homosexual marriage revolves gay and lesbian couples’ ability to build a strong family identity and procreate. It has been proven that firm families are a cornerstone to a stable society (Ruse, 2013). Therefore, opponents of same sex marriage often base their arguments with the assumption on gay marriages’ likelihood to end up with divorce. Given that, we should not support them as they may cause great harm to the perfect nature of marriage as well as the society’s stability. However, in the issue of same-sex marriage, people tend to look for the faults in homosexual relationships and fail to realize that similar problems may as well exist in heterosexual counterparts. According to the US News, divorce rates are, in fact, lower in states with homosexual marriage. Hence, the argument that same-sex marriage ruining the institute of marriage may turn out to be irrelevant (Baker, 2010). In addition, many also argue that we should not deny that procreation and ability to bear children are important factors of every marriage. However, if we were to enforce the idea that marriage exists for the sake of giving and raising children, how about other heterosexual couples who never plan to have sons and daughters or are physically unable to become pregnant? In fact, according to a report issued by the United States Census Bureau, "18.2% of married women aged 15 to 44 are childless" (2008). That is to say, the argument on procreation might also be invalid. Moreover, even though there are doubts and critics on homosexual parenting skills, researchers have found that children living with gay parents still perform worse than children in nuclear families, but they perform no worse than any other kids in another kind of non-nuclear family (Potter, 2012). Therefore, arguments on gay’s parenting skills are no longer convincing since the problem with slightly poorer performances of kids raised by homosexual parents remained in family structure transitions but not the fact that the alternative family is "gay".

The Trend towards Legalizing Same-Sex Marriage in the United States

As of the end of 2012, the legal recognition of homosexual marriages is available in ten jurisdictions, namely Connecticut, Iowa, Massachusetts, New Hampshire, New York, Washington, Vermont, Maine, Maryland, and the District of Columbia (Ruse, 2013). Even though more than forty states, in contrast, have enacted laws or, in several cases, passed constitutional amendments declaring they would deny offering marriage licenses to gay couples, there has been a gradual shift in public opinion on the controversial issue of same-sex marriage (Silver, 2013). To be specifically, according to Pollingreport.com database, eight national polls on homosexual marriage conducted in early 2013 have revealed that while fifty-one percent of Americans are in favor of the legalization for gay and lesbian couples, forty-three percent disagree (2013).

Comparing this result with the data from 1996 when more than two-thirds of Americans were opposed to homosexual marriage, it is obvious that there is a significant change in American attitude toward gay and lesbian couples. However, even though the growth rate has been slowing down since 2004, support for same-sex marriage will continue to rise by one and a half percentage points nationally per year. In fact, this steadiness of trend is consistent with the idea that the shifts are partly generational, with younger American gradually replacing older ones in the electorate (Silver, 2013). Hence, since generational turnover has a major impact on the support for same-sex marriage, it may require a massive religious revitalization among the United States’ youngest generation to reverse the trend.

In addition, since September 21, 1996, when President Bill Clinton signed the Defense of Marriage Act (DOMA) – a United States federal law that restricts federal recognition for homosexual marriages – into law, numerous gay and lesbian couples have been denied access to 1,138 federal rights that are automatically offered to heterosexual couples (Silver, 2013). However, in 2011, the Obama administration determined that Section 3 in DOMA which defines marriage as existing merely between a man and a woman was unconstitutional. President Obama has also decided that although his administration would continue to enforce the law, they would no longer defend it against court challenges (Baker, 2013). Hence, on March 27, 2013, DOMA came before the Supreme Court, and the justices must consider whether the federal law "is consistent with the principles of a nation that honors freedom, equality and justice above all", said President Bill Clinton (2013). After the discussion, the court may conclude that the Constitution requires all states to offer homosexual couples the right to marry, or they may declare that the Constitution remains silent and refuses to answer questions, leaving states free to permit or reject same-sex marriage. Nevertheless, there is no probability that the court would forbid homosexual marriage in places that choose to allow it (Liptak, 2013). Thus, it can be inferred that the Supreme Court decision, which is expected in June, may somehow significantly kick-start public support for the legal recognition of gay couples, causing it to accelerate faster.

Conclusions

The intense arguments for and against the legal recognition of marriage for gay and lesbians have brought out drastic emotions from various individuals in the entire world. After examining numerous arguments that put forth in attempt to justify the prohibition of homosexual marriage, it can be easily noticed that moral values, the ability to procreate, human beings’ identity threat, or religious beliefs are proposed as the prominent rationales to against legal recognition of gay marriage. However, in fact, gay-rights activists and advocates have proven that none of these points is sufficiently persuasive since they are based on subjective opinions. Even though we have yet to reach the level of open public recognition of gays and lesbians since homosexuals and their lifestyles have been continued to be stereotyped, it is undeniable that progress has been made. To be specifically, many Americans are beginning to realize the prominent topic of homosexual marriage for what it is, an issue of equality and rights. Hence, as the nation that prides itself on freedom and equality for citizens, the United States is now making significant movements towards formalizing same-sex marriage. In addition, from religious viewpoints, besides making clear that there must be a separation between Church and States, researchers have concluded that the arguments on homosexual couples’ ability to rear children are not convincing since kids raised by gays and lesbians perform no worse than kids in other non-nuclear families. As such, we can confidently believe that the decision made in June by Supreme Court may satisfy supporters of same-sex marriage. In other words, we can confidently believe that our moral dark ages will take the first step to the bright, judgment free future.