Gay and Lesbian Rights

Since the birth of the U.S. gay and lesbian rights movement in the late 1960s, members of the movement have sought to attain CIVIL RIGHTS already granted to racial and ethnic minorities. These attempts at legal change have met with some success, yet a fundamental issue for gay and lesbian couples, that of same-sex marriage, has found strong resistance, even from supporters of gay rights.

Same-sex marriage is controversial not only because it would require legal change but also because it raises a host of issues surrounding the definitions of marriage and family. The issue is packed with social and cultural beliefs and symbols that force parties to the debate to examine basic assumptions about how social life should be ordered. Though the overwhelming majority of opposition comes from heterosexuals, there are also some gays and lesbians who have doubts about the wisdom of same-sex marriage.

Advocates of same-sex marriage argue that many same-sex couples consider themselves married for all intents and purposes. The only thing lacking is legal recognition by the government—in this case, the state government—that such marriages exist. The denial of legal recognition constitutes sexual discrimination, resulting in the loss of legal rights and benefits afforded heterosexual marriages. Thus, unless a surviving member of a same-sex couple has been named in the deceased partner's will, the survivor has no legal right to any portion of the deceased's probate estate—whereas in heterosexual marriages, a surviving spouse has a legal right to such assets. In addition, same-sex couples lose out on HEALTH CARE benefits extended to heterosexual married couples.

The legal arguments for same-sex marriage are grounded in the constitutional concepts of EQUAL PROTECTION and due process. Proponents of same-sex marriage point to the U.S. Supreme Court's decision in Loving v. Virginia, 388 U.S. 1, 87 S. Ct. 1817, 18 L. Ed. 2d 1010 (1967), which ruled that state laws that prohibited interracial marriages (anti-miscegenation laws) were unconstitutional. The case established that it is a denial of DUE PROCESS OF LAW to forbid marriages on the basis of race and that the creation of such classifications denied couples equal protection of the law because the classifications had "no legitimate purpose independent of invidious racial discrimination."

For advocates of same-sex marriage, Loving was an example of the proper modern legal response to irrational racial prejudice. The Hawaii Supreme Court's decision in Baehr v. Lewin, 74 Haw. 530, 852 P.2d 44 (1993), which held that the state must have a compelling state interest in order to ban same-sex marriage, used Loving as a controlling legal precedent.

Opponents of same-sex marriage make three main arguments against it: the definition-of-marriage argument, the moral tradition argument, and the pragmatism argument.

The definition-of-marriage argument goes to basic social and cultural assumptions. Opponents claim that marriage is necessarily the union of heterosexual couples and therefore cannot include same-sex couples. Thus, any statute that describes marriage could have only contemplated heterosexual couples, even if the statute does not use the specific terms husband and wife. In Jones v. Hallahan, 501 S.W.2d 588 (1973), the Kentucky Court of Appeals used this line of reasoning to prohibit same-sex marriage, noting that "marriage has always been considered as the union of a man and a woman and we have been presented with no authority to the contrary."

Proponents of same-sex marriage argue that courts have not been presented with "authority to the contrary" because gays and lesbians have been ignored by historians. Major research on gay and lesbian history and anthropology has led some historians and legal scholars to conclude that Western and non-Western cultures have recognized same-sex relationships. In European history, stigmatizing and closeting of gays and lesbians started at the end of the medieval period and the beginning of the growth of nation-states. Thus, the North American continent was colonized at a time when same-sex relationships had lost their cultural and legal protection.

Opponents of same-sex marriage who make the moral tradition argument state that defining marriage to include only heterosexual couples is justified to preserve family values and traditional ethical notions. They point to passages in the Bible that either affirm heterosexual marriages (Adam and Eve) or denounce homosexual practices (Sodom and Gomorrah). The Judeo-Christian moral tradition formed the basis of ENGLISH LAW; thus, it must be assumed that religious teachings against homosexual relationships informed the law. The U.S. Supreme Court echoed the moral tradition argument in its ruling that criminal SODOMY laws are not unconstitutional, suggesting that "millennia of moral teaching" supported a state's right to forbid homosexual acts (Bowers v. Hard-wick, 478 U.S. 186, 106 S. Ct. 2841, 92 L. Ed. 2d 140 [1986]). This case was over-ruled by LAWRENCE V. TEXAS, 539 U.S. ___, 123 S. Ct. 2472, ___L. Ed. 2d ___ (2003); the Supreme Court overruled its prior decision in Bowers v. Hardwick and held that a Texas statute making it a crime for two persons of the same sex to engage in certain intimate sexual conduct was unconstitutional, as applied to adult males who had engaged in consensual act of sodomy in the privacy of home.

Another argument often raised with moral tradition is that heterosexual marriage is based on the need to procreate, something that same-sex couples cannot do. Proponents of same-sex marriage point out that heterosexual couples who cannot procreate are not denied a marriage license. Elderly, disabled, and infertile individuals may choose to marry for reasons other than procreation. In addition, both heterosexual and homosexual couples have taken advantage of advances in technologies such as ARTIFICIAL INSEMINATION and in vitro fertilization to overcome physical limitations on procreation. Critics of the moral tradition argument contend that it is based on misguided readings of the Bible and history. They note that many religious leaders support same-sex marriage and that many same-sex couples solemnize their relationship in a religious ceremony performed by a minister or rabbi.

The pragmatism argument against same-sex marriage is typically made by those who support gay and lesbian rights generally but stop short of endorsing same-sex marriage. The call for marriage, they maintain, will create a backlash against the entire gay and lesbian rights movement. In addition, permitting same-sex marriage would be interpreted as legitimizing homosexuality. The pragmatic position is that gays and lesbians should be tolerated and protected; it does not extend to support the recognition of an alternative lifestyle or the expansion of the traditional concept of marriage.

Along with homosexual opponents who advance these arguments, some gays and lesbians are less than enthused with the prospect of same-sex marriage. This group believes that heterosexual marriage is not a good model for gays and lesbians, as it has traditionally established a hierarchical relationship that has produced the subordination of women. The structure of marriage has fostered domestic abuse, economic disempowerment, and other forms of social dysfunction.

Another argument against same-sex marriage is that it will assimilate gays and lesbians into the dominant culture and drain off the radicalism implicit in the gay and lesbian lifestyle. In LOBBYING for same-sex marriage, gay and lesbian leaders will put forward couples who most resemble their mainstream, heterosexual counterparts. This argument has been met with skepticism as romanticizing the movement. All gays and lesbians cannot be grouped as radicals, and it is to be expected that many gays and lesbians would enjoy the legal protection that same-sex marriage would bring.

When the debate has moved into the legal arena, reaction has been strong and swift. In the 1990s, proponents of same-sex marriage scored victories after courts ruled against state bans on such marriages in both Hawaii in 1993 (Baehr v. Lewin, 852 P. 2d 44 [Hawaii 1993]) and Alaska in 1998 (Brause v. Bureau of Vital Statistics, 21 P. 3d 357 [2001]). In both states, a backlash ensued. Hawaiian voters ratified a state constitutional amendment authorizing lawmakers to define marriage only as a union between a man and a woman. Similarly, Alaskans voted by a 2–1 margin in favor of a similar amendment, while proposals were also floated for subjecting judicial nominees to a legislative vetting process that would weed out those sympathetic to same-sex marriages.

Politicians are responsive to such public sentiment. In Congress and state legislatures, same-sex marriage has been vigorously opposed, and by the late 1990s both federal lawmakers and many state legislatures had adopted outright bans. In 1996, Congress passed the Defense of Marriage Act (DOMA) to give states the right to refuse to recognize same-sex marriages performed in other states. DOMA offered a strong rebuke to proponents by creating the first explicit federal definitions of "marriage" and "spouse" in strictly heterosexual terms, and its very name implied that the institution of marriage needed protection from them.

Despite arguably no movement nationally toward broader acceptance of same-sex marriages, gays and lesbians have enjoyed some related legal gains in the early 2000s. More municipalities, including New York City, extended insurance and health benefits to domestic partners. Following this trend in 2000, Vermont legislators passed a historic civil union law conferring on gays and lesbian partners a status similar to marriage. Although stopping short of legitimizing same-sex marriages, the civil union law cleared the way for partners to secure statewide benefits.

Perhaps unavoidably, the debate over same-sex marriage becomes heated because of the fundamental issues at stake. Proponents see marriage as socially constructed and therefore open to changes that society wishes to make. Opponents see less flexibility, citing tradition, morality, and the integrity of the family.