Silver-level articleSame-sex marriage

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Gays can't marry because Irish Potato Famine mutant lawnweed can't speak goddamned English.
—Grahame Morris, former Liberal Party[wp] advisor. (Paraphrased)[1][2]

Same-sex marriage (also called gay marriage) is the union of two individuals of the same sex in a marital relationship, with the full legal rights and responsibilities allotted to this contract in a given jurisdiction. Legally defined marriage of homosexual couples is limited to a minority of jurisdictions at this time; more common is a "civil union," which includes many of the all-important legal trappings, without the title "marriage" and the religious overtones some think are implied by the word.

Supporters of same-sex marriage may refer to it as "marriage equality,"[3] while opponents may call it "redefining marriage,"[4] or may use scare quotes (i.e., same-sex "marriage").[5][6]

Already as of July 2015, the institution of traditional marriage has been improved destroyed in twenty-one countries.[7] As a result, millions of poor innocent people around the world have been forced to watch their gay friends and neighbors declare their loving commitment for one another publicly. This, of course, is a sign of progress in society Satan. Marriage has been shifting from a religiously-dictated ritual to a social construct that is no longer related to the personal beliefs, or to any ritualism specific to organized religion. Disgusting!

Since the news media and partisan groups tend to treat both of these topics as a single issue, this article will do the same. Let us acknowledge at the outset, though, that conflating civil unions with marriage, and the rights allotted by marriage with the institution of marriage, is erroneous, and a common rhetorical trick used by conservative commentators. Let us further acknowledge that this conflation (or lack thereof) is precisely the reason for modern court rulings about equality of gay citizens if they must have a "separate but equal" union, i.e., an alternative to marriage.

There are several religious groups which endorse or carry out gay marriages (Though many, particularly the Christian groups, have enjoyed yet another endured a schism when they chose to do so) including Episcopalians, Presbyterians[8] Quakers, Unitarian Universalists, Eckists, Raëlians, Druids, Native American faiths with two-spirit traditions, certain Reform Jewish Rabbis[9] and Wiccans.


[edit] Same-sex marriages in history

John Boswell, a Catholic scholar at Yale discovered dozens of records of marriages between men sanctioned by the Catholic church in the 2nd century ACE. [10]

[edit] Arguments for same-sex marriage

Taste the rainbow, motherfucker!
—Nostalgia Critic
The wedding of Michael Hendricks and René Leboeuf, the first same-sex marriage in Quebec, 1 April 2004.

[edit] Equality

The argument for equality is the most compelling and obvious for allowing same-sex marriage. Most laws in the Western world are designed to be inclusive and protective of all, so it makes little sense to deny a group of people the legal protection and support that a marriage provides.

Some, however, object to equality as an argument for same-sex marriage. They believe that if homosexuality deserves equal protection, then, logically, deviant practices such as incest or bestiality must be allowed the same equal protection. Their belief is that if two adults love each other, that is insufficient grounds to allow marriage—siblings who love each other cannot marry, for example, and an adult who loves a child or their golden retriever cannot marry them. Incest (in the meaning of sexual encounter between 2 closely related beings capable of producing a child), however, differs from same-sex marriage in that there is a higher than usual risk that a child born to the closely related couple could suffer genetic defects.[11] Bestiality and adult-child marriages are also a violation of informed consent, which is the biggest flaw of that argument. Another basic idea, is that when many women got the right to vote a few decades ago, It didn't follow up with dogs getting that right, nor the right to drive cars. Why? Because dogs are not sapient beings with civil rights akin to those of human beings.

In these contexts, the only difference between a gay and most heterosexual marriage is that, well, "baby can't form."

[edit] Basic human rights

A human right, by definition, extends to all humans. Freely choosing one's own spouse, regardless of gender or status, is a fundamental human right. However, social conservatives believe that claims to human rights may be mitigated by moral barriers. They argue that just as humans cannot choose to marry children or siblings, they likewise should not be able to marry someone of the same gender, and rinse/repeat etc.

[edit] Happiness

Being married to the partner of your preferred gender allows participants a much happier domestic life, and better sex. Or at least, sex with a gender you're not desperately unattracted to.

[edit] Same benefits as opposite-sex marriage

The benefits that people ascribe to opposite-sex marriage - greater commitment, a better place to raise children, a more fulfilling and satisfactory existence etc. - ought to be available for same-sex partners who want to get married. There is no evidence, outside the opinions of certain pundits and propaganda from the right-wing, that a marriage between two women or two men is less beneficial to society than a heterosexual one. This argument has been used by UK Prime Minister and Conservative Party leader David Cameron, who has said that "Conservatives believe in the ties that bind us; that society is stronger when we make vows to each other and support each other. So I don’t support gay marriage despite being a Conservative. I support gay marriage because I’m a Conservative."[12] This had brought criticism from leading British figures in the Church of England and the Roman Catholic Church.[13]

[edit] Arguments against same-sex marriage

See homophobia for a collection of arguments against homosexuality.

[edit] Characterizing the opposition

Most arguments against gay marriage suggest that allowing persons of the same sex to marry will somehow destroy the family, destroy marriage, or destroy both at once. Multiple courts have already found such argumentation to be ridiculous.[14][15]

A real problem with arguing for same-sex marriage is that allowing same-sex marriage is much more contentious than allowing same-sex civil unions with all the same rights as marriages.[16] Because the word "marriage" is considered inherently better than the word "civil union," allowing for same-sex civil unions would still let opponents of gay marriage hold what they consider to be a position of superiority over homosexuals, due to the implication that the government holds heterosexuals in higher regard than homosexuals. The Religious Right often attempts to argue against gay marriage by conflating gay marriage with civil unions, and deliberately trying to whitewash over the possibility of civil unions as an intermediate step between no-rights and marriage. Since the Religious Right has a lot to gain from this deliberate mischaracterization, we should not expect it to cease.

However, it is critically important to remember that, when talking about the right to same-sex marriages, few people are talking about forcing churches to marry homosexual couples. In the US this would be unconstitutional.[17] After all, churches will - and should - do what they want, and some churches have already started to marry gay couples.

In the debate on same-sex marriage in the United Kingdom, the idea that churches will be forced (possibly—gasp!–by the European Union) to marry gay couples against their will has been brought up by opponents of same-sex marriage... but nobody ever seems to see that the same argument applies to divorcees or inter-faith marriages. And no evil Eurocrats or activist judges have been keen on forcing Catholic churches to perform marriages for divorcees.

What most people are talking about are the legal benefits that flow from marriage - inheritance, veterans benefits, etc.

[edit] Same-sex marriages threaten traditional marriage roles

This is actually true, though it's mostly phrased this way by supporters considering it as an advantage, not by opponents.[18] The "traditional" roles in question being roles advocated against social changes in the last hundred years. Gay marriage makes stereotypical traditional marriage roles look as silly as they are. Marriage equality is a threat to those who do not believe in equality between the sexes in general.

[edit] Happiness for whom?

Love is a many-splendored thing.

As discussed above, in a community allowing same-sex marriage, the two partners in the union experience greater personal happiness. However, when same-sex marriage is banned, those who experience greater happiness are those uninvolved with the relationship, for example, Bible-thumping preachers, wingnuts, busybodies, etc. These people gain some slight personal pleasure from the violation of rights and oppression of others. It also seems that as moral agents worried about human happiness and suffering, we ought to ignore happiness that comes only through denying rights to others.

Recent studies have suggested that not only does legalizing marriage in an area generally make homosexual individuals in that area happier, it also makes them physically and mentally healthier and saves them money on health care.[19] Studies have not shown a similar increase in health for the oppressors.

[edit] It's unnatural

Apart from homosexual relationships being encountered in non-humans as well[20], this is actually fallacious on multiple fronts. First, it seems to hold nature (the same nature that has given us countless illnesses, parasites, disfigurement, disasters, and death) in a higher regard than human will and happiness. Second, it ignores that humans, gay humans included, are part of nature too and therefore have as much right to define it. Third, it implies that if something is unnatural, it is bad. Of course, this ignores that there are quite a lot of things in the lives of humans that are unnatural. Wearing coats rather than fur, for example. Or even the computers that you're reading this page off of. But really, considering that all computers and smoke-belching factories have to be derived from something natural somewhere, just what exactly is "unnatural"?

[edit] It's yucky

Some people will seriously consider this as a genuine reason for banning gay marriage. An individual being uncomfortable with a subject, however, shouldn't be the basis for a discriminatory law.

The general thinking will be thus: "Seriously, have you ever seen two guys kiss? Unpleasant. And the feelings it stirs up, the twin repulsion and attraction... UNCOMFORTABLE. Clearly, such activities must be banned! Not letting them get married is a good first step."

In a bizarre twist which could be considered irony, people who are squeamish about gay men may well approve of two girls getting it on, especially if there's a cup involved.[21]

[edit] People will be forced to accept gays

A rather lame argument is that even though gay marriage won't affect other people's marriages, it will somehow affect their lives. One example is judges being forced to grant same-sex marriage (aka. do their jobs). If a judge refuses he or she could be sanctioned. However, this is not a religious issue and judges aren't changing their personal views. Of course, if a judge decided not to grant marriage for interracial or interfaith couples, there would be outrage.

If gay people are allowed to adopt, then adoption agencies will have to allow same-sex couples to adopt their children, giving them a loving home. Because of this pressure some agencies would rather terminate their agencies rather than let a minority adopt children. This is where the argument becomes moot, because the problem ceases to exist.[22]

And when it comes to having children, doctors will have to perform artificial insemination on lesbian couples even if it goes against their moral code. In effect, the doctor would be playing God, deciding on who can have children and who can't.[23] As with the judge analogy, people would be outraged if the doctor refused to inseminate based on race or religion (which has happened in 2014[24]). But, I mean, come on. If there's somebody there willing to do an abortion, they'll put a turkey baster in there too.

On the subject of children, schools will teach children what gay marriage is like. This is very simple, but many parents have strong objections over it. The truth is, the schools aren't saying gay marriage is better than straight marriage, it is just saying that this is a reality. Since same-sex couples can have children now, it makes sense for them to teach children what other families are like, and likely decreasing bullying while doing it. In addition, if a parent is so concerned about what their child is learning in school, they might want to consider using the other 17 hours in the day they see them to tell them how much they hate people who don't affect them.

There are moral objections to many aspects of jobs. However, that does not mean people should be excused from doing their jobs. A Hindu waiter can't refuse to serve meat without facing being fired. Doctors, judges, teachers, and adoption agencies shouldn't get a free pass, either.

[edit] More "thin end of the wedge" or "slippery slope" arguments

A common argument against gay marriage in Australia is that it is the thin end of the (gay) wedge that will lead society down a slippery slope to complete collapse.[25] The argument holds that the "gay lobby" only wants gay marriage to be a starting point. Next will be gay adoption, IVF and surrogacy (all of which exist in Australia already). After that will come the lowering of the age of consent and polygamy/polyandry. After that, siblings will be allowed to marry. Once this agenda has been realised, the stage will be set for the legalisation of bestiality and "inter-species marriage". The final step will be "inanimate object marriage."[26]

Once all of this is done, so the argument goes, naturally every single heterosexual person will have either turned gay or married an animal or object with which it cannot reproduce, and society will be forever destroyed.

This argument overlooks several factors, including that: in none of the places where gay marriage is already legal has this occurred; gay marriage activists tend to stop lobbying once they have gay marriage rather than moving on to inter-species marriage; and that most heterosexuals are in fact heterosexuals, and are not simply biding their time until they can legally marry a person of the same sex/donkey/computer keyboard.

At a deeper level, the slippery slope needs no serious answer, because it presumes that gay marriage and (insert horrible thing here) can only be wrong for the same reason, such as "the Bible says so" or "it's just unnatural" or something else. If it's not necessarily the same reason, then each practice can be considered and rejected/accepted on its own terms. But if it always is, then no one would have different opinions on both things, and yet plenty of people do (from gay rights activists who oppose polygamy, to religious fundamentalist polygamists who oppose homosexuality).

To put it another way, users of the slippery-slope argument are saying that one's views on gay rights have to be held hostage to one's issues with polygamy or incest, or else one is guilty of hypocrisy. This is fallacious regardless of whether or not polygamy and incest are objectively wrong. Even if hypocrisy is a consequence accepting gay rights and rejecting the parade of prophesied horribles, it doesn't follow that avoiding personal hypocrisy is more important than expanding civil rights.

Imagine a hypothetical community shares a strong arbitrary taboo, such as a revulsion to marriage between people with different hair colors. For them, the slippery slope from different-hair marriage to incest is just as valid an argument as with respect to gay marriage. Of course, no taboo needs to be invented at all to make this point, as explained in the next section...

[edit] Counter-argument: Comparison with interracial marriage

Some people used to (and some still do) feel that interracial marriage was wrong, and that a black guy kissing a white lady, or vice versa, was creepy and uncomfortable. Simply being uncomfortable with it is not a reason to ban it. Two people speaking Spanish between themselves in front of you on the bus may make you uncomfortable, but is it really a good idea to say that speaking Spanish (in, say, a predominantly English speaking country) should be illegal?[27]

As laws are founded on objective proof and logical discourse, one person's squeamish reaction to two people of the same sex, different race or different social classes getting close should not and cannot be used as a legal argument against them marrying.

[edit] Is religious opposition somehow more credible and salient?

Many Christians attempt to argue that, since their opposition to gay marriage is based on religious grounds, allowing gay marriage or prohibiting discrimination against gays is somehow infringing upon their religious liberty.[28]

The short answer to this is: "Tough!"

The long answer is: "Tough shit!"

The longer answer is that describing hatred or discrimination as religiously-motivated does not make it any less evil. Rigid gender roles and discrimination against people of different races have also been justified on the basis of religion...but they are still wrong. Mass murder and slavery have been justified on the basis of religion. That doesn't make them right, however. This is a basic underpinning of a pluralist society. Where there are multiple versions of "reality" and "morality," the one that should be used to form laws is the one that doesn't hurt people.[29] This is the essential thinking behind laws such as the establishment clause or any law that separates church and state.

In the US specifically, every citizen has the right to "life, liberty, and the pursuit of happiness", any such activity that could interfere with those basic rights is prohibited: the whole "your right to swing your fist ends where my face begins" idea. The legal answer is that, regardless of religion, when a discriminatory action is identified, Congress has the power by the Fourteenth Amendment to eradicate that evil. Further, free exercise does not include hate crimes.[30] Finally, speech against homosexuality - like all hate speech - is protected by the First Amendment, to a degree.[31] Combined with the issue that, at the federal level, Congress is not allowed to pass laws that are purely for religious purposes because of the First Amendment, and religious opposition has no legal ground to stand on. This also applies at the state level with the inclusion of the Fourteenth Amendment, prohibiting rights being denied without a secular cause (due process). And, in many cases, people don't care if [insert religion here] recognizes a gay couple's marriage; they tend to be more focused on their government recognizing their marriage. So religious freedom is unharmed, so long as it does not infringe upon another's freedom. John Stuart Mill would be proud.

[edit] Parenting and childrearing (or Think of the Children!)

The argument that children should not be raised by same-sex couples has been debunked extensively. Scientific research has consistently shown that homosexual parents are just as effective as heterosexual parents, and the psychological well-being of children reared by same-sex couples is not worse than that of children raised by opposite-sex parents.[32][33][34] In fact, same-sex couples and their children are likely to benefit greatly from legal recognition through marriage, more so than civil unions.[35]Recent studies from 2011 added a tantalizing suggestion that not only are gay couples "equal" parents to straight couples, they might even be better on average for two reasons. 1) Gay couples are more likely to have chosen the time and place for children. Gay couples cannot accidentally get pregnant, or have more children than they want. 2) Gay couples (and this is true of any child raised outside of the 'norm') generally expose kids to more diversity in their relationships and the children are raised with more tolerance. [36]

[edit] Procreation

Similarly, some argue that the state recognizes marriage in order to promote procreation, which ensures the state's continued existence. The argument goes that since procreation is generally the result of sexual union between a man and a woman, recognizing same-sex marriage doesn't make any sense. However, they fail to note the generally. Same-sex couples can also procreate (rather than adopt) through IVF or surrogacy, albeit with some more red tape and planning to go through. Scientists are also working on ways to make sperm from eggs, make eggs from stem cells, and grow babies in artificial womb, so in the near future, there won't even be the need for a donor.

This also ignores the fact that procreation is not a requirement for heterosexual marriage. Child benefit is just one of many legal and tax benefits given to married couples, such as spousal social security benefits, medicare and other medical benefits, estate planning benefits, disability benefits, employment benefits, death benefits, family benefits such as right to property, housing benefits, consumer benefits such as tuition and insurance discounts, allowing filings of wrongful death suits, marital communication privileges, visiting rights, and more, alongside simply giving them the opportunity to register their commitment to one another and have it acknowledged by the state. None of these are taken away if a couple fails to produce children on a regular basis, as they are there to provide stability to a committed couple, regardless of how many crying screaming sods bundles of joy they wish to have.

Also, to follow the logic of "marriage is for procreation", then we shouldn't be giving marriage licenses to people who have had vasectomies/tied tubes, or people just naturally sterile, or even the guy that got hit too hard in the soccer balls with a soccer ball.

The procreation argument alone should be insulting for those involved in an honest relationship. To define marriage as simply a vehicle for procreation undermines the deeper relationships and meaning of marriage. So much for "defense of marriage". If anything, the argument is insulting to children, as it determines their worth in numbers, rather than how they are cared for. Better to raise one child or none in a stable working household than bring three into one that cannot support them. And in case you didn't realise, we have a global problem going on.

[edit] Officially invalid

While some states have implemented same-sex marriage bans using procreation as the reasoning, courts within a day of each other in 2013 ruled that the bans in New Mexico and Utah were violations of the equal protection and due process clauses of the Fourteenth Amendment. Both judges ruled that procreation was not a valid argument because heterosexual couples who were elderly (e.g. post-menopausal), infertile or otherwise making a conscious decision not to have children were not subject to the same ban that same sex couples were. Judge Terence Kern noted in his decision for the US District Court for the Northern District of Oklahoma that "civil marriage... does not have any procreative prerequisites," and concluded that "permitting same-sex couples to receive a marriage license does not harm, erode, or somehow water-down the 'procreative' origins of the marriage institution." [37]

[edit] Divine retribution

Christian fundamentalists sometimes argue that same-sex marriage risks divine retribution. In California in 2008, after hundreds of same-sex marriages, Ray Comfort argued that a drought and ensuing wildfires were the result of God demonstrating his displeasure with the state for legalizing gay marriage.

At present (June 2008) there are 840 wild-fires that are burning at once in California, destroying many homes. The fires were started by lightning strikes. Guess who's in charge of the electrical department? These are from thunder storms that have no rain. Guess who gives the rain? You said "while in California it's fair and dry." We are having the worst drought in our recorded history. Last year 1,155 homes were destroyed.[38][39][40][41]

Any natural disaster can be shoehorned into this, "Seriously. Isn’t it nice how God has arranged that there is pain and suffering in every part of the world, just so His preachers have something to point to and say “Sinners!”?" (PZ Myers)[38]

In response to the legalization of gay marriage in the UK, UKIP councillor David Silvester wrote:

The scriptures make it abundantly clear that a Christian nation that abandons its faith and acts contrary to the Gospel (...) will be beset by natural disasters such as storms, disease, pestilence and war. (...) It is his fault (David Cameron, promoter of English gay marriage legislation) that large swathes of the nation have been afflicted by storms and floods. (...) He has arrogantly acted against the Gospel that once made Britain 'great' and the lesson surely to be learned is that no man or men, however powerful, can mess with Almighty God with impunity and get away with it for everything a nation does is weighed on the scaled of divine approval or disapproval. [42]

The Westboro Baptist Church believes gay marriage will lead to destruction on the scale of the Global flood and total destruction of the United States.

Until now only one society in all of history practiced it, the Antediluvian. (…) The practice was the reason for Noah’s flood. The risk of retribution is real. (…) Same-sex marriage will destroy this nation (…) that will cross a final line with God. [43]

[edit] No marriage at all

A rare argument, typically seen among libertarians, is that not only should the state not sanction same-sex marriage, but that it should get out of the marriage business altogether. As a private arrangement between consenting adults, they argue, there is no reason for state intervention.

However, this doesn't really solve the inequality problem. (Advocates of the no-marriage solution rarely seem to spend their time evangelising this view to married heterosexuals). They also don't address the issue of rights, privileges, and benefits associated with marriage. As these include matters where the state has a compelling interest, such as property rights that can frequently end up in dispute, the state has no choice but to get involved in some way so as to maintain order.

Another Libertarian prescription would be to provide civil unions for all, and let churches perform marriages which would have no legal standing. This system exists in several European countries; a legally binding civil ceremony is required, but the option exists to have an additional church ceremony for those who want it. The American system is actually very similar to this; however, due to legal language, the term "civil union" presents a case of "separate but equal," and the Supreme Court has previously ruled the term (in Brown v. Board of Education) to be a paradox: inherently impossible. Because the rights and privileges are currently tied to the specific term "marriage," nothing less than marriage (in the legal sense) is considered acceptable. Meanwhile, proponents correctly argue that the religious ceremony is irrelevant to this case and is not being argued. It is the legal status associated with the civil ceremony that is at issue.

[edit] A child needs a female model and a male model (which he gets from his parents most easily) to grow up normally

Since the most early times, even before we could be called “humans”, our tribes lived their daily lives at the center of the village, raising their children together. The modern version of this is day nurseries, schools, sports clubs, the uncle that gives you a job, etc. So we humans have always had more than just our biological parents to raise us, and there were always enough women and men around. One could even argue, that all groups of social animals do exactly the same, even if in more primitive forms.

This argument is also not an argument against same-sex marriage but against same-sex parenting, which opponents of homosexuality frequently conflate. If you truly believe in the social good of marriage and long-term relationships, but dislike gay people being parents, then given that gay people are parents (from sperm donation, surrogacy, adoption or previous relationships with heterosexuals), they should probably prefer that gay parents are in long term stable relationships... but they never quite seem to get around to seeing the validity of this point.

[edit] Divorce and widowhood are unforeseeable and thus cannot be compared to same-sex union intentionally raising children

Should one answer the previous question with "Widows and divorced couples!"

Drunks, murderers, drug users, violent people, serial killers, Rick Perry, all of those conditions are also unforeseeable, and yet, no one seems to have any kind of problem with people with those conditions having children. Are we going to examine each person and decide whether it can have children or not in order to create some kind of "pure race", where only the perfect people can have children? Even if homosexuality would have a bad influence on the children, it still isn't a good argument, unless you want to create a utopian society of perfect people having perfect children.

[edit] Forcing laws could backfire

If the majority of the people don't want same-sex marriage, unpopular laws allowing it could backfire and result in more aggression (we should wait until people become more open-minded).

This ignores the fact that a slight majority of people do support same-sex marriage, and the generation demographics. Each passing generation is more supportive than the last, with the growth getting faster each time and acceptance growing quicker and quicker as support becomes more visible. The end result is that the largest group of people against it are old, while younger generations who will continue society after the homophobic generations are gone show overwhelming support. [44]

[edit] Murder of African Christians

If the Church of England allows gay marriage Africans could associate Christianity with homosexuality, then Africans could fear Christianity will turn them all gay. Archbishop of Canterbury, Justin Welby claims there has been at least one mass murder of Christians due to this way of thinking. [45] Later Welby amended what he said and claimed allowing such murders to affect Church of England policy would give in to terror. [46]

[edit] Lesbian sperm thieves

David Usher of RenewAmerica warns that women will, given the slightest opportunity, all marry each other, thus taking all the legal privilege from men, and use the men only as a source of sperm.[47] But then, he is batshit insane.

[edit] It is a "counterfeit" that devalues the "real thing"

This video compares gay marriage to counterfeit money, calling your van a "Porsche", or making your college degree look like a Cambridge diploma.[48] It pretends that SSM somehow devalues "real" marriage since the big man in the sky has the patent on it.

[edit] American legal arguments for same-sex marriage

Please see our Fourteenth Amendment article for a primer on types of discrimination, and methods of fighting discrimination. Both are referred to in some of the sections below.

[edit] Possible equal protection arguments

The easiest, most open-and-shut case for gay marriage goes like this: "prohibiting gay marriage classifies on the basis of sexual orientation. Sexual orientation discrimination is repugnant to the Constitution. Please allow gay marriage, or allow civil unions that confer the same benefits." This makes the most sense, and is the easiest formulation to state. However, the issue is a little harder...

The preceding argument is an equal protection argument. However gay rights have, thus far, only been advocated on substantive due process grounds (building from the due process clause), as in Lawrence v. Texas.[49] The same case ardently refused to address gay rights as an equal protection issue, and refused especially to suggest that gay rights deserve any special protection under the equal protection clause. Without this special protection (strict scrutiny, hopefully at some point) such rights can be removed or abridged with a merely pretextual reason, effectively preventing an equal protection argument for gay marriage from succeeding.

Some hope may be had, though; by way of implication in Romer v. Evans the Supreme Court intimated that homosexuality may be entitled to a higher form of protection, noting that "animus laid bare" is not enough to justify discrimination. This suggestion at least leaves the door open for an equal protection argument.

[edit] Substantive due process and the race analogy

The Supreme Court has once before tackled the right to marry. In Loving v. Virginia, the Supreme Court invalidated a Virginia statute which voided and forbade any marriage between members of different races (miscegenation). The aptly named Lovings successfully sued Virginia to invalidate the law, although it took the Supreme Court to win a favorable verdict.

In the opinion, the Supreme Court struck the statute largely on equal protection grounds, finding that the statute improperly set up a racial hierarchy and perpetuated repression and discrimination against African-Americans. Virginia had defended against this argument on the basis that the statute was "formally equal"; it did not hurt African-Americans any more than Caucasians. Neither could marry the other. This formal equality, Virginia argued, was dispositive of any discrimination claim. In finding against Virginia, the Supreme Court employed its rarely used "Get Real!" technique; regardless of formal equality, said the Court, everyone knew the real impetus behind the law, and couching its defense in legal formalities would not allow the court to overlook this great inequity. This case was a great victory for the civil rights movement.

This was the holding of the case - or, its primary legal significance. Importantly, though, as an afterthought, the Court tossed in one comment at the very end of the opinion, saying that the Court had no need to reach the argument that the due process clause could protect, as fundamental to the American way of life, the right to marry. Although merely one line of dicta,[50] this line suggests that the Court at one point recognized a fundamental right to marry.

A theoretical argument for same-sex marriage could make use of this dicta, defining marriage as a "fundamental right" which is "deeply rooted" in the nation's history, implicit in the concept of "ordered liberty," and the restriction of this right should be struck down upon strict scrutiny unless it is "narrowly tailored to a compelling state interest."[51] The Supreme Court has consistently held that such rights are due protection.[52] Opponents will rebut, exclaiming that gay marriage is not a fundamental right - and therefore should be subject to the comparatively lighter form of judicial review, rational basis review. The dicta in Loving, proponents can argue, suggests otherwise.

Even if evaluating gay marriage under substantive due process triggers only rational basis review, though, restrictions on gay marriage arguably fail even this moderate test. Persuasive authority, found in Goodridge v. Dep’t of Public Health,[53] suggests that restrictions on gay marriage do fail rational basis review, finding such restrictions are arbitrary and capricious, since:

  • There is no showing that restricting marriage to heterosexual couples will further any state interest: no state actor can prove damage to heterosexual marriages if gays are allowed to marry,
  • Discrimination based on immorality fails, since this is impermissible in the wake of Lawrence v. Texas, and,
  • The state (here, Massachusetts) conceded that gay parents are good parents.

However, any substantive due process argument for same-sex marriage would have to establish, as a predicate, that same-sex marriage is a type of conduct, since substantive due process generally protects only conduct.

[edit] Objections to the race analogy

Conservatives object strongly to any attempt to analogize between racism and homophobia, and discrimination against gays and discrimination against non-white races. The objection is based upon the assumption by said conservatives that sexual preference, unlike race, is not inborn (immutable). The obvious objection is that, in fact, sexual preference is immutable,[54] or, if not immutable, is so highly correlative with personal identity that it defies classification as a "choice," and should still be legally protected. A more appropriate analogy than race, in this case, would be religion - religion is a choice, although a deeply personal choice - and therefore, the law protects (and should protect) individuals from discrimination on the basis of such deep choices (and it does, in the case of religion).

On the other side of the political spectrum, some adherents of racial identity politics also maintain that analogies between racism and homophobia are false, their specific beef being the gay campaign against "don't ask, don't tell." Activist Sharon Martinas puts it this way: "Some queer activists, whose movement was started by queers of color at Stonewall, focus their struggle on the right to become equal opportunity murderers of peoples of color in the U.S. military. And we use false analogies between homophobic and racial oppression to justify demands for these 'equal rights.'"[55]

These objections are, at least in the context of American constitutional law, spurious: Loving v. Virginia did not rely on race as a unique distinguishing category but on its conclusion (for which reason it was instrumental in developing substantive due process) that no state interest whatsoever benefited from excluding particular people from marriage. The decision in that case pointed out that marriage is a critically significant (and private) individual choice (outside the opinion, it's notable that even convicted murderers on death row are accorded the right to marry) and weighed restrictions on marriage as being presumptively unconstitutional and requiring the state to individually justify any limitations on it.

[edit] Conduct or status?

Although marriage has traditionally been described as a status - a quality that inheres as a result of a legal imprimatur - gay rights activists have increasingly sought to characterize marriage as a type of conduct. This characterization is a deliberate legal and rhetorical strategy that builds upon the fact that, although marriage fits more neatly within the description of a "status," certain aspects of marriage - the fact of the couple's presentment to the community as a joined entity, as well as the personal expression qualities of engaging in a marital relationship - suggest that marriage can be defined at least partially as a type of conduct.[56]

This new characterization has important ramifications for the law of same-sex marriage. As discussed in Lawrence v. Texas, homosexual conduct is protected at a high level - somewhere between rational basis review and strict scrutiny. Status, though, is protected at a low level. Although this distinction itself may fade before the law comes to conceive of homosexual relationships as "conduct," this plan of attack is yet another potentially successful legal strategy.[57]

[edit] Conflict of laws - American perspectives

Same-sex marriage presents an interesting difficulty in the American federal system. Where some states may allow gay marriage, others may not, and pursuant to the Defense of Marriage Act, states may even refuse to honor the rights that come with a same-sex marriage (such as the right to sue, the right to inherit, etc.) One group of people most likely affected by DOMA are children who are safe with two parents in one state, but find themselves orphans in another, should the biological parent die while on vacation, or should the couple move. This proposes a problem in many different ways.

  1. Suppose a couple runs to Massachusetts or Connecticut, gets married, and returns to their home state, which forbids gay marriage. Should the home state nonetheless honor the duly executed marriage?
  2. Suppose a couple lives and is married in a state where it is legal, but then moves to an intolerant state. Should the new state recognize the marriage?
  3. Suppose a couple lives and gets married where it is legal, and travels on a brief vacation to an intolerant state, where for some reason their marriage becomes a legal issue. How should the new state treat the marriage?
  4. A gay couple married in Massachusetts actually tried to get divorced in Rhode Island, where such a move has been declared illegal.[58] You'd think they'd be eager to untie that knot!
  5. Federal definition of marriage has always (and necessarily so) allowed the states to individually define marriage, which is then applied across the board to Federal matters. That is, if one state says a couple is married at 16 years of age, the US government recognizes the marriage for any taxation, immigration or other federal issues. But, if a different state does not allow marriages until 18, that state's rules are followed for residents in that state.
  6. Full Faith and Credit demands, however, that if one state says you cannot marry till you are 18, but you are legally married in a state where the age is 16, both states must equally recognize the marriage. States must respect the legal documents and contracts of another state, including adoption and marriage.
  7. Full Faith and Credit becomes problematic if one state can say "I do not recognize your marriage, or your children's rights under that marriage" should you visit our state, move to our state, or just fly over our state and wreck.

Professor Linda Silberman proposes a solution: a same-sex marriage should be evaluated under the law of the domicile of the married couple, not the law where the marriage was solemnified (as was the common law custom).[59] Thus, in situations (2) and (3), the same-sex marriage should be honored, even by a reluctant state. In situation (1), which can best be characterized as an attempt to evade the law of the home state, the marriage should not be honored. This solution best preserves a state's interest in protecting its morality (somehow), but also preserves the rights of the married couple.

This approach presumes that the Defense of Marriage Act - which permits states to completely ignore a same-sex marriage where convenient - will not (or should not) be taken advantage of by states to spitefully nullify legitimate out-of-state same-sex marriages. However, many states (Nevada, Georgia, etc.) have declined Professor Silberman's persuasive analysis.

This issue is extremely important, since marriage creates such real and beneficial legal effects. Under the Defense of Marriage Act, states like Nevada and Georgia can prevent the widow of a gay marriage from receiving anything from his or her partner's intestate estate... for no reason other than intolerance and spitefulness. At a less dramatic level, there are many situations where being "family" provides vital legal rights, such as approval of care, etc., and the only way for two unrelated people who share their life to be "family" is for them to marry.

Apparently, "family values" have even reached into the Universal Declaration of Human Rights. Article 16, part 3 says: "The family is the natural and fundamental group unit of society and is entitled to protection by society and the State."[60][61] Yes, let's protect the family... but what is a "family"?

[edit] Status

[edit] Nations

  • Argentina legalized same-sex marriage on July 15th 2010.
  • Austria allows civil unions ("registered partnerships") since January 1st, 2010. Benefits are mostly equal to full marriages but exclude adoption rights.
  • Belgium was the second nation, after the Netherlands, to legalize same-sex marriage on January 30th 2003, in an at the time controversial move.
  • Brazil has had civil unions since 2004. The current situation is complex but a number of these unions have been recognised as marriages. Marriage is legal as of December 2012 in the states of Bahia and São Paulo.
  • Canada legalized gay marriage in the province of Ontario in 2003.[62] Other provinces soon followed suit, and it was legalized across the country on July 20 2005, later surviving a second vote called by the Conservative government of Stephen Harper in 2006, who following the vote declared that the he "[doesn't] see reopening this question in the future."[63]
  • The Czech Republic established civil unions in July 2006.
  • Denmark was the first country to establish registered partnerships in 1989. The relevant rights have since been steadily expanded and cover adoptions as of July 2010. Full marriage as of June 2012.
  • Finland has been allowing civil unions since 2002, including the right to adopt a partner's own children. Attempts to introduce a gender neutral marriage law failed in 2012 after a 9 to 8 decision by the Legal Affairs Committee of the Finnish Parliament. However, on March 19th, 2013, a citizens initiative managed to collect the 50,000 signatures required to override the Committee's decision in just a single day, putting the bill before parliament.[64]
  • France established civil unions in the form of private contracts in 1999. They're equal to marriages as far as taxation is concerned, but lack some joint property and adoption rights. Same-sex marriage was legalized on May 18th, 2013.[65]
  • Germany has been allowing civil unions (called "registered partnerships") for same-sex couples since 2001. They currently include most of the benefits of a full marriage. Following a 2009 ruling by Germany's constitutional court, full equality to marriage will have to be implemented.
  • Hungary began to recognize same-sex registration on July 1, 2009.
  • Iceland legalized same-sex marriage in June 2010.
  • Iran does not even have any homosexual people, according to President Ahmadinejad.
  • Ireland approved a bill establishing civil unions with privileges equal to opposite-sex cohabitation (but not marriages, notably excluding joint adoption) in July 2010. The law came into effect on January 1st, 2011. Civil unions could not be classed as 'marriages' due to the constitution's definition, but following a referendum on May 22nd, 2015, the constitution was amended with a 62% majority to explicitly include same-sex couples. [66]
  • Israel recognizes marriages granted in other countries. A bill to legalize same sex marriage failed in May 2012.
  • Japan conferred all rights of married couples to gay couples married outside of Japan, if one of the partners is a legal citizen or resident of that foreign country on March 27, 2009. So a Japanese couple can't go to Sweden just to get married, but if one of them is a Swede, Japan will recognize the marriage and give them the legal status of marriage for all government-related issues.
  • Luxembourg established civil unions without joint adoption rights in 2004. The government introduced a bill to legalize same-sex marriage in July 2010.
  • Mexico has legalized same sex marriage in two cities, however a same sex marriage ban was struck down in December 2012.
  • The Netherlands became the first nation to grant same-sex marriages in April 2001. They are not granted, however, in the other constituent countries of the Kingdom of the Netherlands (i.e. Aruba, Curaçao and Sint Maarten), though these countries must recognize same-sex marriages performed elsewhere in the Kingdom of the Netherlands.
  • Norway legalized same-sex marriage on June 12, 2008 (effective January 1, 2009). They also made adoption easier for same-sex couples, and made lesbian couples eligible for state-funded fertility drugs.[67]
  • Portugal legalized same-sex marriage in 2010, the relevant bill came into effect on June 5th.
  • Saudi Arabia still does not recognize same-sex marriage. Actually, same-sex sex is a capital crime there.
  • In Slovenia, a law that would legalize gay adoption and even out hetero- and homosexual partnerships was put to a referendum that is still to occur.
  • South Africa legalized same-sex marriages in November 2006 following an earlier ruling by the country's constitutional court.
  • Spain, in June 2005, despite strong opposition from the Roman Catholic Church, allowed full marriage rights for same-sex couples.
  • Sweden legalized gay marriages on May 1, 2009.
  • Switzerland established civil unions on January 1st, 2007. Benefits are mostly equal to full marriages but exclude adoption rights.
  • The United Kingdom instituted "civil partnerships" on 5 December 2005, which have identical rights and responsibilities to civil marriage under all Marriage Acts since 1836, except that you were not allowed to call them "marriages", or have them solemnised in a religious ceremony.[68][69][70] The law was further changed for England and Wales in July 2013[71] so that same sex couples could have marriages, though religious organisations will not be forced to perform or recognise them. The first such weddings are legal from 29 March 2014 in the England and Wales. Scotland, where marriage is a devolved issue, is currently considering similar legislation as that passed for England and Wales[72] [73] Northern Ireland currently has no plans for gay marriage. [74][75]
  • Uruguay's president signed a law permitting same-sex marriages on May 3, 2013, and it took effect that August 5.[76]

[edit] The United States of America

In a little more than five years, the United States went from being a nation where same-sex marriage was unthinkable to one in which it was the law of the land. In 2009 five states and the District of Columbia legalized same-sex marriage. Gradually, more states passed laws allowing marriage equality, and while some legal challenges to the movement were successful, it became obvious that the tide was turning in favor of same-sex marriage. On 26 June 2015, the Supreme Court laid the issue to rest in a 5-4 ruling in the case of Obergefell v. Hodges.

[edit] Timeline
May 15, 2008
The state Supreme Court strikes down California's statutory ban on same-sex marriage.
November 4, 2008
Proposition Hate passes in California, re-editing the state Constitution to make the ban "constitutional".
April 3, 2009
The Iowa Supreme Court required that the state recognize same-sex marriage. (So that's where the good lawyers were when California needed them!)
April 7, 2009
Vermont legalized same sex unions.
April 23, 2009
Connecticut changed "civil union" language to full marriage, saying "separate is not equal".
May 5, 2009
The Washington, D.C. City Council approved a measure recognizing gay couples legally married in other states. Conservative members of Congress swear they will block the Council's will.
May 6, 2009
Maine Governor John Baldacci became the first Governor to sign a bill legalizing gay marriage. This was also the first state that did this according to "conservative rules", by going through the legislative process, and not the courts. Of course, even though teh gays followed the conservative rules, the conservatives still intend to attempt to reverse it.
May 7, 2009
New Hampshire's General Assembly (the legislature) approved a gay marriage bill, two years after the state legalized civil unions. Governor Lynch signed it into law shortly after some language indicating that churches would not have to perform them was inserted. Effective 1/1/2010.
May 18, 2009
Washington governor Christine Gregoire signed an "everything but marriage" bill, conferring the same rights and obligations to same-sex couples enjoyed by opposite-sex couples, just without calling it "marriage". Conservatives announced their intent to repeal it by referendum. On November 2, 2009, this referendum was rejected by the state's voters.
August 4, 2010
A Federal District Court struck down California Proposition 8, a referendum that banned same-sex marriage (which had been legalized by the legislature and governor) as violating the United States Constitution.
January 31, 2011
Illinois governor Pat Quinn signs a bill into law legalizing civil unions for same-sex couples. The law took effect on June 1, 2011.[77]
June 24, 2011
The New York State Legislature approves, and its governor signs, a bill granting marriage equality, with some safeguards against religious institutions being compelled to be involved in same-sex marriages.
July 2nd, 2011
In Rhode Island, civil unions are signed into law as marriage in everything but name, however the bill comes with even more religious exceptions than New York.[78]
February 13th, 2012
Governor Christine Gregoire of Washington signs into law The Marriage Equality Act, legalizing same sex marriage.
February 17th, 2012
New Jersey passes a same-sex marriage bill, but it is vetoed by Governor Chris Christie.[79]
March 1, 2012
Maryland governor Martin O'Malley signed the Civil Marriage Protection Act, set to grant marriage equality on January 1, 2013, subject to popular referendum.
November 6, 2012
Maryland voters approve same-sex marriage in the aforementioned referendum, as do voters in Maine and Washington state. All three states become the first in 32 attempts for marriage equality to pass a popular referendum. Minnesota voters reject a constitutional amendment to ban same-sex marriage, but a statutory ban still exists.
June 26, 2013
The Supreme Court overturns a portion of DOMA on Fifth Amendment grounds[80], and lets stand a lower court ruling invalidating California's Proposition 8 on procedural grounds.[81]
March 21 2014
A Federal judge in Michigan overturned the state's law banning marriage equality. People were able to marry for a day until a stay was imposed pending an appeal. Stay tuned.
May 19, 2014
A federal judge in Oregon ruled the state's ban unconstitutional, and so it became legal.
May 20, 2014
A federal judge in Pennsylvania ruled the state's ban unconstitutional, and so it became legal.
October 6, 2014
The Supreme Court rejected appeals to hear same-sex marriage cases out of Indiana, Oklahoma,Utah, Virginia, and Wisconsin, immediately legalizing it in all those states.[82]
October 11, 2014
A federal judge in North Carolina ruled a state constitutional amendment unconstitutional, and so it became legal.
November 6, 2014
The Federal Court of Appeals for the 6th Circuit, covering Kentucky, Michigan, Ohio, and Tennessee, upheld a ban on gay marriage brought before them. This created a "circuit split" in which different circuits have taken different stances on the same issue. Such splits practically compel the Supreme Court to rule on an appeal from these circuits as they are the only body capable of resolving the split.
January 16, 2015
The Supreme Court agreed to hear an appeal from the 6th Circuit over the gay marriage ban. Arguments were heard the last week of April, with a decision due before the end of the court's session in June.
June 26, 2015
The Supreme Court overturned the 6th Circuit decision, striking down all remaining prohibitions on same-sex marriage in the United States. "America thus abandoned marriage. So God might abandon America, if He hasn’t already." (one conservative view)[83]

[edit] See also

[edit] External links

[edit] Footnotes

  1. Presenting one of the worst arguments ever against same-sex marriage. Seriously
  2. Australian commentator: We shouldn’t approve gay marriage because Irish people "can't grow potatoes"
  3. See wp:Marriage Equality Act (New York) and wp:Marriage Equality Act (Vermont)
  4. Ironic, considering the Oxford English Fucking Dictionary did exactly that [1].
  5. Like in this Washington Times editorial: [2]
  6. Bryan Fischer even calls it sodomy-based marriage. [3]
  7. Namely Argentina, Belgium, Brazil, Canada, Denmark (including Greenland), Finland, France, Iceland, Ireland, Luxembourg, the Netherlands, New Zealand, Norway, Portugal, Slovenia, South Africa, Spain, Sweden, the UK (performed in England, Scotland, and Wales), the United States, and Uruguay. Although recognised nationwide in Mexico, it is only performed in four states, so, 21½?
  11. Frank B. Livingstone: Genetics, Ecology, and the Origins of Incest and Exogamy
  12. Daily Mail - Gay marriage is ‘a step too far’, says defence minister as Cameron proposes full marriage rights for same-sex couples
  13. Catholic cardinal criticises gay marriages plan
  14. Prop 8 Full Ruling, see p. 77
  15. See the Wikipedia article on Goodridge v. Department of Public Health.
  16. According to several polls, around 45% of Americans oppose any recognition of gay unions. Around 25% support full marriage rights, and calling it "marriage." 27% support, at least, "civil unions." Thus, a plurality of Americans prefer some sort of civil union.
  17. Remember the First Amendment?
  21. This can be proved with extremely bad statistics; There's a lot of lesbian porn out there, there are lots of homophobes out there. Ergo, the two groups must overlap somewhere.
  22. Catholic Charities stuns state, ends adoptions March 11, 2006
  23. And this is coming from the people who decry playing God.
  24. The Globe and Mail: Calgary fertility clinic in hot water after refusing to help with mixed-race babies
  25. Some excellent examples can be found in the comments of The Punch's article Give the Coalition time and they’ll vote for gay marriage
  26. And it actually happens, see 5 People Married to Inanimate Objects
  27. It doesn't help that there are people who would answer "yes" to that.
  28. There have been cases where anti-gay/homophobic t-shirt slogans were prohibited in schools, but the action was fought on grounds of religious expression.
  29. And then the religious people will go back to the claim that same-sex marriage hurts people, and the cycle goes ad infinitum
  30. "Laws are made for the government of actions, and while they cannot interfere with mere religious beliefs and opinions, they may with practices." From the Supreme Court's decision in Reynolds v. United States, 1878.
  31. See, e.g., Gooding v. Wilson (405 U.S. 518) (applying the First Amendment to strike down statutes that prohibit "abusive" language, and protecting such language so long as it does not present a clear and present danger).
  32. Marriage of Same-Sex Couples – 2006 Position Statement of the Canadian Psychological Association
  33. Amici brief in Perry v. Schwarzenegger from the American Psychological Association and others
  34. Literature review of LGBT-parented families from the Australian Psychological Association
  35. University of California psychologist Gregory M. Herek: Paper published in American Psychologist, 2006
  37. Bishop v. Oklahoma, pp. 58
  38. 38.0 38.1 Ray Comfort answers a question
  39. Comfort's Words of Comfort: The Atheist Worldview June 24, 2008
  40. Survivor Sucks: Kirk Cameron associate - CA wildfires are punishment for gay marriage June 24, 2008
  41. It's smiting time! July 03, 2008
  42. UK storms are divine retribution for gay marriage laws, says Ukip councillorUKIP councillor blames storms and floods on gay marriage
  43. In The Supreme Court of the United States Brief of the WBC to the Supreme Court of the United States. Copy paste has been made deliberately difficult and unintentional copying errors are possible.
  45. Welby: backing gay marriage could be 'catastrophic' for Christians elsewhere
  46. Welby: Church 'struggling' over same-sex marriages
  49. In Romer v. Evans, the Supreme Court did address discrimination against homosexuals, and struck it down on equal protection grounds... however, this did not add any new rights to couples, or remove existing barriers. Instead, it merely prevented the state of Colorado from erecting (tee hee) new barriers.
  50. "Dicta" is by-the-way argumentation presented in an opinion, not necessary to the underlying holding or the critical legal issue being resolved. An example would be, in an opinion holding a defendant liable for tort damages, the court discussing a theory of tort recovery not relied upon in the case. Dicta don't provide precedent; they are, however, illuminating and can be used to form a persuasive case, if not relied upon as the entirety of that case.
  51. Washington v. Glucksberg, 521 U.S. 702 (defining the standard for substantive due process claims, and stating that fundamental rights are due strict scrutiny).
  52. Id.
  53. 400 Mass. 309 (Marshall, Chief Justice, for the Court).
  54. Although debate goes on. See Wikipedia's coverage of the issue.
  55. Martinas, Sharon. "Racism and the Rise of the Right," p.5.
  56. Forthcoming article from the NYU Review of Law & Social Change: will update upon publication.
  58. R.I. court won't let gay couple divorce December 8, 2007
  59. Silberman, Same-Sex Marriage: Refining the Conflict of Laws Analysis, 153 U. Penn. L. Rev. 2195 (2004-05).
  60. This is right before the "Think of the Children!!!" article.
  61. More seriously, the context is often forgotten, as the rest of the article says : "1. Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution." and "2. Marriage shall be entered into only with the free and full consent of the intending spouses." In 1948, affirming that the family was more important than ethno-racial barriers was pretty radical stuff.
  62. It should be noted that Canada has not yet been destroyed by God as an example unto others.
  63. Same-sex marriage file closed for good, PM says, on gay marriage referendum.
  67. Norway approves same-sex marriage law June 12, 2008
  68. BBC report
  69. England/Wales Government website
  70. Scottish Register Office website
  71. BBC News Report: Same-sex marriage becomes law in England and Wales
  72. BBC News Report: MSPs endorse gay marriage bill
  73. UK Government news story 'Same sex marriage becomes law'
  74. Gay marriage legalised at midnight in England and Wales
  75. Gay marriage ban ending in England and Wales on Saturday
  76. Same-sex marriage bill comes into force in Uruguay
  77. Illinois Gender Advocates: Illinois Law
  78. WPRI: Chafee signs civil unions legislation July 3, 2011
  79. CNN:N.J. governor vetoes same-sex marriage bill
  80. United States v. Windsor, 507 U.S. -- (2013)
  81. Hollingworth v. Perry, 507 U.S. -- (2013)
  83. Marriage is no more
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