Marriage Inequality
BY Victoria Garrity
The biggest civil rights issue of the 21st century in the United States is the denial of marriage rights to same-sex couples. At present there are only six states, most recently New York, that have passed laws that recognize same-sex couples’ rights to marriage. The passing of such laws in these states are major accomplishments for supporters of same-sex marriage; however, there also many states that have passed laws banning same-sex marriage. With the passing of Prop 8 in 2008, “California [became] the 29th state to pass an amendment to the state constitution by a vote of the citizens to define marriage as between ‘one man and one woman’” (Fingerhut, Kiggle, and Rotosky). The laws that ban same-sex marriage create inequalities between straight and gay citizens because they unfairly deny same-sex couples the legal and social rights marriage guarantees for heterosexual couples. In order to guarantee equal rights under the law, the government should make marriage open to all citizens of the United States by creating federal legislation that will legalize same-sex marriage.
It is unconstitutional to deny same-sex couples the right to marry. In the 1967 Supreme Court case Loving v. Virginia, in which an interracial couple fought to overturn Virginia’s ban on interracial marriage, Chief Justice Earl Warren wrote in the court’s final opinion that “the freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men” (Warren). The Loving v. Virginia case establishes that marriage is an institution protected by the Constitution because it relates to a citizen’s “pursuit of happiness.” This case also draws on the Equal Protection Clause of the 14th Amendment, which states that “no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” The 14th Amendment relates to the issue of same-sex marriage because it provides evidence in United States law that shows that state legislators should not be able to pass laws on the institution of marriage, like Prop 8, if those laws infringe upon a citizen’s “freedom to marry.” On the basis of what is set down in the Constitution and Loving v. Virginia, it is unconstitutional to deny same-sex couples in the United States the fundamental freedom of marriage.
However same-sex couples are currently denied access to this “freedom to marry,” making the inequalities between the rights of gay and straight citizens in America strikingly clear. By not allowing same-sex couples the right to marry, the government also denies them access to the benefits a married couple can receive in the United States. The NOLO online legal encyclopedia lists several rights benefits that come with marriage. One of these benefits is that married couples can file for joint tax returns and can create family trusts and estates. Married couples can also receive Social Security, Medicaid, and disability benefits through spouses. Being someone’s spouse gives a person the right to visit their spouse in the intensive care unit of a hospital past restricted visiting hours and the right to make his or her spouse’s medical decisions. A married person also has the right to not disclose information about his or her communications with a spouse in a court of law. These are just some of the rights that married couples receive under federal law in the United States, but they are also the rights being denied to same-sex couples in our country. Heterosexual couples have access to these rights through marriage, while homosexual couples do not. Gay citizens are unfairly being denied access to these rights when a state passes a law banning same-sex marriage. The gay citizens of America need to be given access to these rights in order to establish equal rights for all citizens in the Unites States.
In order to establish some semblance of rights for gay citizens, opponents of same-sex marriage have proposed a civil union as an alternative to marriage; however, a civil union is not a viable solution because same-sex couples would still be denied many of the federal legal benefits that go along with marriage. According to the Gay & Lesbian Advocates & Defenders article “Civil Marriage v. Civil Union,” couples in a civil union may have access to state benefits (if their state recognizes civil unions), but they do not have access to the federal benefits that married couples receive like “taxation, pension protections, provision of insurance for families, and means-tested programs like Medicaid.” GLAD also presents the problem of “portability,” meaning that the civil union of a same-sex couple could be invalid if they move to another state that does not recognize civil unions. This lack of equal benefits has led to civil unions being rejected by some members of the gay community on the grounds of them being “separate but equal” (Phy-Olsen 162). The creation of a separate institution just for gay couples is supporting inequality by not giving couples in a civil union the exact same benefits as married couples and also by presenting them with another alternative to marriage instead of making marriage equally available to both heterosexual and homosexual couples.
The key to establishing equal rights in America and passing same-sex marriage legislation is separating the civil institution of marriage from the view of marriage as a religious institution. One of the problems we face when debating gay marriage rights is that marriage is seen as both a civil and religious institution in America. While the religious aspect of marriage cannot be overlooked, the American legal system views marriage as a civil institution. Even if some opponents of same-sex marriage oppose legalizing gay marriage on moral and religious grounds, the fact that marriage is a civil institution allows us to frame this issue as one of equality and justice, not religion. For example, in his essay “Stop Saying It” humanist Jason Frye states: “In the United States, marriage is universally a civil institution, as evidenced by the paperwork those getting married must all submit to the same place: not the church, but the state” (6). By looking at marriage as a civil institution, supporters assert “that it is hypocritical to deny full rights and opportunities of citizenship—which includes access to an institution as basic as matrimony—to a small but significant portion of the population that does not conform sexually to the majority” (Phy-Olsen 76). The Constitution sets down that there must be a separation between Church and State, so one’s religious position or any arguments found in the Bible against same-sex relationships cannot be used to validate the denial of gay and lesbian citizens’ rights. Seeing marriage as a civil institution allows us to move away from religious protests to same-sex marriage and focus on it solely as a matter of the state.
Much of the debate over same-sex marriage surrounds the differing opinions on the definition of marriage. Opponents do not wish to alter the traditional definition of marriage; they believe that “one-man, one woman marriage simply is the one and only correct legal relationship in human culture” (Newton 49). While marriage has not only been between one man and one woman throughout history, this type of marriage was traditionally the most accepted by society. Opponents of same-sex marriage see no reason to alter the current accepted definition of marriage to include same-sex couples. On the other hand, critics of this argument draw on examples like slavery to show that “practices once regarded as inviolable and/or sacred because they have been around ‘forever’ were just simply the right way to do things have eventually been viewed in a new light” (Newton 50). The institution of slavery was completely legal and accepted in the United States until it was outlawed after the Civil War. The argument that society has done things a certain way for all of human history does not mean that certain institutions should not be subject to change. American society saw that the institution of slavery was unjust and then went on to correct the injustices inflicted upon slaves. Not all traditions are good for society, and the tradition of marriage up until this point has unfairly excluded the gay and lesbian citizens of America. If we could change our ways and make the country more inclusive of former slaves, then surely we can do it again by opening the institution of marriage to include all citizens.
In order to open the institution of marriage to all citizens, legislators in support of gay marriage must work to develop legislation that counteracts the arguments of opponents. For example, another argument that opponents reference is the “slippery slope” argument, which is based on the idea that once the Supreme Court gives same-sex couples the right to legal marriage it will open the door for other types of marriage like polygamy and incest to make their case in court (Phy-Olsen 119). Protecting society from falling down this “slippery slope” into immorality and preserving the traditional definition of marriage is essential to some gay marriage opponents. But the slippery slope argument fails to address that marriages between same-sex couples are in no way similar to polygamous or incestuous relationships. A marriage between a same-sex couple is still between only two non-related individuals who share a great love and commitment for one another. Legislation for same-sex marriage must clearly define that marriage is still between only two non-related individuals in order to maintain the clear distinction between same-sex marriage and other more frowned upon sexual taboos. If the marriage laws that are created in order to legalize gay marriage are narrowly tailored, then there should be no concern about opening doors for supporters of polygamy and incest.
While it is essential that legislators develop legislation that guarantees the right of same-sex couples, they must also protect religious institutions’ rights to freedom of religion. Even though same-sex couples are entitled to equal rights as citizens of the United States, one must step back and consider the right of the church to oppose same-sex marriage and refuse to hold services in their facilities. Protecting religious freedom is one of the main arguments of the opponents of marriage equality. For example on the Prop 8 website, supporters of the ban on gay marriage cited the potential for churches to have their tax exemptions revoked for refusing to hold same-sex marriages under the list of “Top 6 Consequences If the Vote Fails.” Opponents of New York’s “Marriage Equality” law felt that “the legal recognition of same-sex marriage can pose a real threat to the freedom of the church and other religious communities that object to the practice on theological and moral grounds” (Protecting Religious Freedom). Without the addition of protections from lawsuits for religious organizations that refuse to hold same-sex marriages, supporters of the bill in New York may not have received the votes of several Republican senators that were needed to pass the bill. If future legislation included these types of exemptions for religious groups, then it might be easier to pass marriage equality legislation and ensure equal marriage rights to all citizens.
Creating legislation that will legalize same-sex marriage is essential to righting the unfair treatment of members of the LGBT community by giving them equal access to the protections set down in the Constitution. The best solution to the issue of marriage inequality would be to pass a federal “Marriage Equality” bill in order to right this wrong. In 1964 legislators were able to pass the Civil Rights Act, prohibiting discrimination based on race, color, religion, and sex in federal institutions. If the national legislature could pass the Civil Rights Act, then surely it can work to pass a federal law that protects members of the LGBT community from discrimination in the institution of marriage. The State of New York’s “Marriage Equality Act” is a good model for what this federal marriage could potentially look like. On top of making same-sex marriage legal, the law emphasizes that no government benefits relating to marriage should “differ based on the parties to the marriage being or having been of the same-sex rather than a different sex.” The law makes it clear that there should be no inequalities between same-sex and different-sex couples when it comes to their access to the benefits of marriage. Also, if this federal law included the previously discussed exemptions for religious organizations like the ones found in New York’s “Marriage Equality Act,” legislators could create a law that would satisfy opponents to gay marriage while ensuring the rights of gay citizens. Denying same-sex couples the right to marry is an unfair restriction on their civil rights, and a federal “Marriage Equality” law like the one described would correct this injustice.
Works Cited
“14th Amendment”. Legal Information Institute. Cornell University Law School. Web. 02 Nov. 2011. <http://www.law.cornell.edu/constitution/amendmentxiv>
“A8354-2011: Enacts the Marriage Equality Act relating to ability of individuals to marry”. The New York Senate Open Legislation Service. New York State Senate. 24 June 2011. Web. 21 Jan. 2012. <http://open.nysenate.gov/legislation/bill/A8354-2011>
“Civil Marriage v. Civil Unions”. GLAD.org. Aug, 2009. Web. Nov. 1 2011. <http://www.glad.org/uploads/docs/publications/cu-vs-marriage.pdf>
Fingerhut, Adam W., Ellen D.B. Kiggle, and Sharon Scales Rotosky. “Same-Sex Marriage: The Social and Psychological Implications of Policy and Debates.” The Journal of Social Issues 67.2 (2011): 225. Proquest Research Library. Web. 18 Oct. 2011.
Frye, Jason. “Stop Saying ‘Same-Sex’ Marriage”. The Humanist 71.5 (2011): 6, 6-7. Proquest Research Library. Web. 19 Oct. 2011.
“Marriage Rights and Benefits.” Nolo: Law for All. Web. 20 Jan. 2012. <http://www.nolo.com/legal-encyclopedia/marriage-rights-benefits-30190.html>.
Newton, David E. Same-Sex Marriage: a reference handbook. ABC-CLIO. Santa Barbara, CA: 2010. Print.
Phy-Olsen, Allene. Same-Sex Marriage. Greenwood Press. West Port, CT: 2006. Print.
“Protecting Religious Freedom”. Commonweal 138.14 (2011): 5. Proquest Research Library. Web. 18 Oct. 2011.
“Top 6 Consequences if the Vote Fails”. Whatisprop8.org. Web. 20 October 2011. <whatisprop8.org>
Warren, Earl. “Loving v. Virginia.” Legal Information Institute. Cornell University Law School, 10 Apr. 1967. Web. 02 Nov. 2011. <http://www.law.cor