Pursuit of a Constitutional Same- Sex Marriage Equal Rights Essay

Life, Liberty, and the Pursuit of Happiness unless you love someone of the same sex and want to get married. A constitutional right denied to a minority gruop due to values established that will be viiolated by the need for love and a legel commitment to cherish and honor one another until death do they part. This is so controvorsely that these same sex partners can’t experience marriage due to values, aka, ingorance among many Americans who continue to slide down the slippery slope. The preverbeial slipey slope once it starts it cna’t stop and remains forever thus, they are considered values. These values provoke fear of the obvious answers to allowing smae sex marriage. The fear of many that this value prevents happiness is said to be an argument based on values that same sex couples if we let them marry we will then allow polygamy, incest, and bestiality of course. This holds up true and has an acronym to define it (PIB).polygamy, incest, and bestiality (PIB) An argument that surfaced before Loving opened marriage to all races raises its head again in opposition to same-sex marriage: the slippery slope argument. If we let same sex people marry, where will it stop? Will society permit underage marriages, polyamorous groups, incestuous unions, even marriages with animals? This argument urges us to take a stand at the top of the slope, in the belief that preventing same-sex marriage is necessary to prevent the other “horribles” listed by opponents of same-sex marriage. This parade of horribles is so frequently invoked by opponents of same-sex marriage that it has been abbreviated in the literature to the “PIB argument”—for polygamy, incest, and bestiality (Corvino 2005). However, as Araujo writes, “no one has ever demonstrated that legalizing gay marriage logically entails the recognition of a marriage among two men, three women, their siblings, a horse, and a brace of pelicans.”

Sadly the rights of these citizens are not allowed due to the obvious thought process assuring many the truth that two men, three women, their siblings, a horse, and a brace of pelicans were united in love and matermony in Masuttues when we allowed our furst gay marriage in .2012.. Thus, they are considered wild animals out of control, so we control the same sex marriages byignoring their importance to the diverse group and to Ameircas as it reflects daily in our socity, views, obvious ignorance and even pliticaly we are affected by this issue.

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The opposition to same-sex marriage in the United States

At their root the arguments against same-sex marriage are primarily arguments against homosexuality. They stem largely from what Eskridge and Spedale call “the politics of disgust,” a revulsion by many against what they consider unnatural, dirty practices, which might pollute them and are therefore immoral (Eskridge and Spedale 2006, 220-3). In religious traditions that accept the Old Testament, homosexuality is an abomination because of injunctions against it in Genesis, Leviticus, and Deuteronomy. Christians add the condemnations of St. Paul.

Somewhere in these prohibitions arose the idea that homosexuality is a choice, an idea that persisted until the last century, although it is still widespread in the writings of those who oppose the emancipation of homosexuals. A person can choose or not to sin,

1 1995. The first country to allow same-sex marriage, as opposed to registered partnerships or civil unions, was the Netherlands in 2001. Now LGBT couples can be married in Belgium, which passed a law permitting marriage in 2003; in Spain and Canada since 2005; in South Africa, since 2006; and in Massachusetts since 2004. It must be made clear, however, that only in Canada is the legal status of couples

same-sex marriage have residency requirements that do not apply to heterosexual marriage. In Massachusetts, married homosexuals cannot file their federal income tax jointly because of DOMA.
Civil unions or registered partnerships are also available nationwide in nineteen countries and in regions of three other countries. In the United States, these unions are recognized in seven states and the District of Columbia, and will be recognized in two other states beginning in 2008.

Despite the ravages of AIDS and the public opposition to homosexuality, the
movement towards same-sex marriage was quietly gaining strength in the American LGBT community during the late 80’s and early 90’s. The AIDS crisis actually helped the movement in two ways: on the one hand, it was argued that marriage would reduce promiscuity among male homosexuals; on the other hand, stories were emerging of devoted same-sex couples suffering tragically when one became ill and the other had no legal right to hospital visits, medical decisions, or to property after a partner’s death (Chauncey 2004, 87-122).

In the U.S., a pattern developed: movement towards marriage in the courts was countered by legislative action, nowhere more dramatically than in Hawaii. It almost became the first state to recognize same-sex marriage when in 1993 the state supreme court ruled in Baehr v. Lewin that banning marriage seemed to violate the state’s Equal Rights Amendment. The supreme court remanded the case to a lower court to determine whether the state had a “legislature. The same pattern—a court interpretation of the state constitution overruled by a constitutional amendment—played out in Alaska in 1998. Hawaii now allows same-sex couples some rights as partners, as do New Jersey and Maine, but nowhere near the complete rights of marriage.

Vermont was the next state where LGBT activists and lawyers thought they had a chance of success. The Gay and Lesbian Advocates and Defenders (GLAD) brought thecompelling interest” in denying marriage to LGBT people. Unfortunately, the lower court waited too long to take up the case, so that it began deliberations on the same day that the U.S. Senate passed DOMA in 1996. The tide of support turned, so that although the lower court in Hawaii found for the LGBT couples

As a political and a legal matter, decriminalization lands one in both an interesting and, for some, uncomfortable social position. In important respects, gay people’s relationship to the state at this moment shares some similarities with the position of freed men and women in the nineteenth century in the period between the ratification of the Thirteenth and Fourteenth Amendments. Black people were no longer enslaved or enslavable, yet they did not enjoy robust civil and political rights either. They were
not citizens or full civil and political subjects, rather they were freed-people, not free people. It took the 1866 Civil Rights Act and ultimately the Fourteenth Amendment to the Constitution to transform Black people into African-Americans. The middle ground they lived in during the period makes it possible that, in the interim between a state court decision ordering the recognition of same-sex marriages and a state constitutional amendment reversing that decision, same-sex marriages will be recognized in an individual state. Yet this lag between judicial action and democratic response is familiar in all states where state constitutional amendment
procedures are time-consuming and cumbersome. These states, too, have always been trusted to handle their own courts and constitutions. There is no reason to believe that the temporary recognition of same-sex
marriages in a state presents such a special and immediate danger to the nation that it can be handled only by a federal constitutional amendment.20 Even where a state supreme court orders the recognition of full-fledged, same-sex marriage in a state, the ruling is limited in its reach to the state itself. A state court ruling favoring same-sex marriage could not require other states to recognize such marriages. That could be accomplished only by additional hypothetical rulings by courts of last resort in other states requiring their own jurisdictions to recognize such marriages.

passed in the Hawaii case of three same-sex couples who wanted to marry before the Vermont Supreme Court in Baker v. State (1997). The court ruled that denying the benefits of marriage to LGBT couples was unconstitutional and directed the Vermont legislature to remedy the situation. Those benefits were established as “civil unions” and were signed into law by Governor Howard Dean in 2000. In California, the state legislature enacted registered domestic partnerships, with almost all the rights and benefits of marriage for partners in established relationships. However, marriage itself was still denied to these couples. Governor Arnold Schwarzenegger vetoed a bill to recognize same-sex marriage in 2005 (Eskridge and Spedale 2006, 237-9).

Emboldened by the relative success of Baker v. State, in 2001 GLAD and its allies brought suit in Boston on behalf of seven couples in Goodridge v. Department of Public Health. As the case was being argued, in 2003, the U.S. Supreme Court’s ruling in Lawrence v. Texas swept away sodomy laws, insofar
as they criminalized private conduct between adults. Although the reaction to the decision in Lawrence was such that the Federal Marriage Amendment (FMA) was proposed in Congress, a major obstacle to equality for LGBT people was gone. Marriage as a civil right seemed possible. The case for same-sex marriage is based, ultimately, on the legitimacy of the claim to equal rights by LGBT people. As Mary Bonauto, the lead attorney for GLAD, writes, “the de jure exclusion of same-sex couples from marriage is a massive affront to the dignity of all LGBT Americans.” In its 2003 decision, the Massachusetts Supreme Judicial Court agreed: “Civil marriage is at once a deeply personal commitment to another human being and a highly public celebration of the ideals of mutuality, companionship, fidelity, and family” (Bonauto 2005, p. 4). The court found “no rational basis” in the Massachusetts government’s policy of denying marriage licenses to samesex couples. The court directed the state to begin issuing marriage licenses to LGBT couples 180 days after it handed down its decision. In Cambridge, the first licenses were issued at 12:01 am on May 17, 2004, to two women who had stood in line for twentyfour hours to claim first place. Behind them were 250 other couples. But the same pattern that overturned the apparent successes in Hawaii and Alaska still threatened: the Massachusetts state legislature could enact a state constitutional amendment banning same-sex marriage. Although an amendment was voted down in 2005, a citizen initiative was started to place a constitutional amendment on the ballot. This initiative had to receive 50 votes in two successive sessions of the legislature in order to be on the statewide ballot in 2008. On June 14, 2007, the proposed ballot initiative received only 45 votes (17 fewer than during the previous session in January) and same-sex marriage is now secure in Massachusetts until at least 2012. Governor Deval Patrick said: “Today’s vote is not just a vote for marriage equality. It was a vote for equality itself” (Boston Globe 2007, p.1).

Litigation over same-sex marriage continues. New York and Maryland have determining or receiving “benefits, rights, and privileges” (Congressional Budget Office 2004, p.1).

The statutory provisions counted by the Congressional Budget Office here are only on the federal level. Because each state has its own provisions, and in many cases they vary from each other, the total number of provisions affecting marriages in the U.S. is much larger. Married people can rent or buy houses and other property without trouble. They share in health, pension, and insurance benefits, and claim support in divorce settlements. They can claim immigration rights for a spouse of a different nationality. They may not wish to negotiate a surface-mine lease, but the ordinary economic processes of life stated that “a marriage is between a man and a woman, and I think we ought to codify that one way or another.”6 More recently, the President issued a Proclamation in 4 See Alliance for Marriage, Legal Impact of the Federal Marriage Amendment, available at http://www.allianceformarriage.org/reports/fma/colorchart.cfm. 5 Amy Fagan and Bill Sammon, Bush Weighs Marriage Amendment; Awaits Court Rulings on Gay Unions, WASH. TIMES, Aug. 1, 2003, at A1. (“Sen. Rick Santorum, Pennsylvania Republican, and Senate Majority Leader Bill Frist, Tennessee Republican, have voiced support for a constitutional amendment. An aide to Mr. Frist said members of the House and Senate also are exploring ways to defend traditional marriage.”). 6 Jesse J. Holland, Senate subcommittee to take gay marriages after August recess, ASSOC. PRESS, Aug. 1, 2003. 2

support of “Marriage Protection Week, 2003,”7 an effort by certain religious and conservative groups to consolidate their attacks on same-sex families.8 In contrast, a number of prominent conservative leaders have spoken out against the proposed constitutional amendment on federalism grounds. Former Representative Bob Barr (R-Ga.), one of the authors of the federal Defense of Marriage Act (“DOMA”) (discussed below), has expressed his opposition to the proposed constitutional amendment, stating: Marriage is a quintessential state issue. The Defense of Marriage Act goes as far as is necessary in codifying the federal legal status and parameters of marriage. A constitutional amendment is both unnecessary and needlessly intrusive and punitive. . . . As any good federalist should recognize, [DOMA] leaves states the appropriate amount of wiggle room to decide their own definitions of marriage or other similar social compacts, free of federal meddling.9 In a similar vein, with respect to the issue of protection for same-sex couples, Vice President Dick Cheney has stated: “I think different states are likely to come to different conclusions, and that’s appropriate. I don’t
think there should necessarily be a federal policy in this area.”10 The Defense of Marriage Act

In 1996, Congress enacted the Defense of Marriage Act (DOMA). At the time, no state recognized same-sex marriages, but it was believed that one or more states might soon do so, either through legislation or by court decision. The Act contains two substantive provisions. The first seeks to relieve states of their obligation to accord full faith and credit to same-sex marriages that are lawfully entered into in other jurisdictions.11 The second provides that the federal government will not recognize such marriages.12 7 Marriage Protection Week, 2003, By the President of the United States of America: A Proclamation, Oct. 3, 2003. See http://www.whitehouse.gov/news/releases/2003/10/20031003-12.html 8 See National Gay and Lesbian Task Force, Marriage Protection Week’ Sponsors: Are They Really Interested in ‘Building Strong and Healthy Marriages? available at http://www.ngltf.org/downloads/MarriageProtectionWeek.pdf.

9 Bob Barr, Leave Marriage to the States, WASH. POST, Aug. 21, 2003. Similarly, conservative constitutional scholar Bruce Fein has argued that “conservatives should squelch a rash constitutional amendment pending in the House of Representatives to prohibit states from recognizing homosexual marriages and thus place the issue off-limits for democratic discourse. The amendment would enervate self-government, . . . and clutter the Constitution with a nonessential.” Bruce Fein, Constitutional Rashness, WASH. TIMES, Sept. 2, 2003. 10 Alan Simpson, Missing the Point on Gays, WASH. POST, Sept. 5, 2003, (quoting Dick Cheney). 11 Section 2 of DOMA provides in the following terms that States need not respect the marriages of same-sex couples from other states: The paper itself begins with an introduction that lets the readers know what the paper will say. You should include a brief overview of the political debate and current policy, and a well-thought out thesis statement. Your stance on current policy relating to the controversy should be included in the thesis. Anthropological Association (AAA) issued a statement strongly opposing a constitutional amendment limiting marriage to heterosexual couples. The AAA depended on its professional expertise when it wrote:

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 Three-fifths of a marriage: why not civil unions? Civil unions in lieu of marriage have been accepted by some legislators and activists. When same-sex marriage seems politically unattainable, some state legislatures and governors—like Vermont Governor Dean in 2000—settle for civil unions or domestic partnerships. Some legislators, such as those in New Hampshire, believe that civil unions provide partners with the same “ ‘rights, responsibilities and obligations’ as heterosexual marriage, differing in name only” (Moskowitz 2007). Some LGBT activists believe that settling for civil unions or domestic partnerships is a realpolitik strategy, with civil unions serving as a step towards same-sex marriage.

However, civil unions or domestic partnerships are not equivalent to marriage. Accordingly, CFI maintains that LGBT persons are entitled to the option of marriage. To clarify CFI’s position, this paper will discuss the distinctions between such legal partnerships and marriage in three sections: the economic and social differences between the two; the second-class citizenship implied in civil unions or domestic partnerships; and the anomalous disparity between adoption laws and marriage laws in many states. 1. Economic and social problems with civil unions and domestic partnerships Three states in the U.S. offer civil unions: Vermont, which was the first to do so, Connecticut, and New Jersey; New Hampshire will offer them beginning in January 2008. Four others—California, Maine, Washington, and the District of Columbia— provide domestic partnerships, with Oregon providing them in January 2008. Hawaii has a law providing “reciprocal benefits” in lieu of unions or partnerships. In establishing civil unions or domestic partnerships, legislatures have attempted to reproduce the economic and social benefits of marriage. For example, in Vermont, they have enacted laws enabling mutual financial support between partners; laws on domestic relations, child custody and support; and laws providing spousal benefits (Vermont Secretary of State 2006). The other states have substantially the same provisions. But they cannot ensure recognition for civil unions in other states and they cannot ensure federal benefits. Only marriage can do that: Marriage can affect a person’s eligibility for federal benefits such as Social Security.

Married couples may incur higher or lower federal tax liabilities than they would as single individuals In all, the General Accounting Office has counted 1,138 statutory provisions—ranging from the obvious cases just mentioned to the obscure (landowners’ eligibility to negotiate a surface-mine lease with the Secretary of Labor)—in which Voters have enacted constitutional bans on gay marriage in a number of battleground states that will decide the 2012 election, among them Ohio and Florida. Mr. Obama’s Wednesday announcement came a day after residents in North Carolina, a state the president hopes to win in November, voted overwhelmingly in favor of a constitutional amendment defining marriage as between a man and a woman. North Carolina is also hosting the Democratic National Convention, where Democrats were set to battle over whether to make gay marriage rights a plank of their party’s official platform. The issue holds potential perils for conservative Democrats, and benefits for Mr. Romney

Marriage Equality for Same-Sex Couples
ABSTRACT: Same-sex couples encounter barriers to health care that include concerns about confidentiality and disclosure, stigma and discriminatory attitudes and treatment, limited access to health care and health insurance, and often a limited understanding of their health risks. Same-sex couples and their families are adversely affected by the lack of legal recognition of their relationships, a problem with major implications for the health of same-sex couples and their families.

Tangible harm has come from the lack of financial and health care protections granted to legal spouses, and children are harmed by the lack of protections afforded to families in which partners are married. However, the recent Supreme Court ruling, The United States v Windsor, which afforded equal treatment for legally married same-sex couples will provide many important health and financial benefits. Evidence suggests that marriage confers health benefits to individuals and families, yet a sizable proportion of individuals do not experience these health benefits because of their sexual orientation. Additional data suggest that same-sex couples who live in states with bans on same-sex unions experience adverse health outcomes. Civil marriage is currently available to same-sex couples in only thirteen states and the District of Columbia and honored by one state. The American College of Obstetricians and Gynecologists endorses marriage equality for same-sex couples and equal treatment for these couples and their families and applauds the Supreme Court’s decision as an important step in improving access to benefits received by legally married same-sex couples. However, additional efforts are necessary to ensure that same-sex couples in every state can receive these same benefits. “We cannot accept the view that Amendment 2’s prohibition on specific legal protections does no more than deprive homosexuals of special rights. To the contrary, the amendment imposes a special disability on those persons alone. Homosexuals are forbidden the safeguards that others enjoy or may seek without constraint” -Justice Anthony Kennedy, writing for the majority of the U.S. Supreme Court in the decision overturning Colorado’s Amendment 2 referendum It’s a tired argument by now that the problem with these staged spectacles of homo kinship is that they are boring, though of course they are. How can it be that in such a short period of time the spectacularity of gayness has become so dull? Consider Ellen DeGeneres—only a few short years ago a trail-blazer as the first out lesbian character on television whose very being was regarded as a threat to all things descent and christian, now a cute and innocuous daytime talk show host whose lesbianism is less her signature than are her sneakers. Perhaps this is best understood as the consequence of an increasingly successful civil rights movement—as the claims of the movement gain greater acceptance in the larger society those claims become less alarming. Or maybe it is the other way around—diminished alarm motivates political possibility. More radical critics would argue that the same-sex marriage movement has accelerated and privileged the more
assimilationist aspects of the gay rights struggle.5 What we are witnessing in the gay community, I would argue, is a radical substitution or transformation of the nature of homosexual desire. Into the psychic space created by decriminalization has rushed a desire for governance, a desire for recognition—recognition by legal and state authority. The de jure refusal to all gay people to satisfy this desire has formed the basis of the new civil rights claims made on behalf of “the community.” Take, for instance, the complaint filed in the case challenging New York’s marriage law. Lambda Legal—the preeminent gay and lesbian rights legal organization—argued on behalf of the five same-sex couples who sought to be married that the marriage law denied Lauren Abrams and Donna Freeman-Tweed’s right of “their families Body:

The application of the FMA to private action is not an inevitable interpretation; supporters deny that they intend such an individuals desire intimate, committed relationships no less than heterosexuals. Such relationships are a critical component of a person’s life. Heterosexuals have the right to marry and share their life with another person who has the same sexual orientation. Why should LGBT individuals be denied this fundamental right? Moreover, freedom to marry whom they choose means recognition that they are not second-class citizens, just as the same freedom meant that African-Americans were legally equal to everyone else. In the Goodridge decision, the Massachusetts Supreme Judicial Court made precisely this point: “The Massachusetts Constitution affirms the dignity and equality of all individuals. It forbids the creation of second-class citizens” (Chauncey, p. 134). Marriage carries with it a series of rights and responsibilities inherent in the name of an institution that has been bolstered by law over many centuries. Married couples do not have to fight authorities for visitation rights in hospitals, for power of attorney over medical decisions, or for inheritance rights. They can petition to adopt children without question about their status.

And they can make divorce settlements. It is impossible to divorce without being married, and divorce laws contemplate an equitable division of property following dissolution of the marriage. Therefore, married couples benefit from the special status accorded marriage even when the marriage is breaking up. Given our present legal and social system, which provides a preferred status to married couples in many respects, LGBT people rationally insist on “marriage” and distinguish it from civil unions. No matter how liberating civil unions and registered partnerships may be, there is no substitute for marriage: “Saying a civil union is the same as marriage does not make it so. Civil unions are a newly invented category, neither universally recognized or understood…Why relegate a minority group to a separate category?” (New York Times 2007, editorial).

3. The anomaly of adoption laws
Although marriage is forbidden to same-sex couples in all but one state, by a strange anomaly, adoption—that is, the formation of a family with children—is open to LGBT couples and even to LGBT individuals in a majority of states. Children may be adopted by LGBT individuals or same-sex couples in 34 states; only Florida is logically consistent in its animosity to LGBT persons, forbidding both same-sex marriage and expressly forbidding either LGBT individuals or couples to adopt a child. (Wald believes that Anita Bryant’s crusade, mentioned above, is responsible for Florida’s blanket