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SOCIAL AND LEGAL ASPECTS OF SAME SEX MARRIAGES

Posted by Admin on January 30, 2011

Introduction: This paper is a presentation of the social and legal aspects of same-sex marriages. Although debates about this institution are strongly centered round legal aspects, this paper does not turn out to be a purely legal one. It looks at the system from the standpoint of society’s attitudes towards it, listing some of the arguments in favor of and against this system. Occasionally, the physical or sexual aspect of same sex marriages is sprinkled in the paper.

Limitations of this paper: One limitation of this paper is that it looks at the issue predominantly from the Western perspective. Although homosexuality, even if it is not solemnized by legal protection in most cases to be called same sex marriages, is universal, this paper restricts itself almost purely to the situation of same sex marriages as it exists in the West, in which too, most of the issues are from an American viewpoint. Secondly, this paper does not make a compartmentalization of social, moral, religious and legal issues concerning same sex marriages, instead looking at the issue of mixed marriages as a blend of these factors. Finally, in the concluding section, in which a prognosis is made of the issue, no claim is made that this is by any means an infallible one, whose certainty can be guaranteed. This forecast is at best a pointer made on the basis of very great variables, based on the way the issue has grown, which is liable to change at any time in unforeseeable altered circumstances.

Understanding same-sex marriages: In the simplest terms, same sex marriage, as the term indicates, is the marriage between individuals of the same sex. There is disagreement over whether this term is analogous to gay marriage, since some people can be homosexual, and could still be in a heterosexual marriage. Those who oppose the usage of the term ‘gay marriage’ do so because they would like the genealogy to include what are called ‘LGBT’, or lesbian, gay, bisexual and transgender relationships. (Same-sex marriage)

History of same sex marriages: By whatever names they were called, unions between people of the same sex have existed since ancient times in almost all parts of the world; some prominent examples are those of Greece, in which an elderly man would cohabit with a younger male, in a manner strikingly similar to heterosexual practice. This often happened with the full consent of the family and the society. Acquiescing with an elderly man of considerable social standing was perhaps a way to climb the social or intellectual ladder. In ancient Rome, too, this practice is believed to have existed for centuries before the advent of Christianity. Once this religion was born, with its firm accent on marriage as a means for procreation, same sex relationships started to go underground, perhaps in view of the enormous influence the Church held over people’s daily lives. In the US, as late as the 19th century, there was a system in which two women would cohabit and make commitments to each other, in what was known as Boston Marriage. (Same-sex marriage)

Legal status of same sex marriages: Much of the debate on same sex marriages, though concerning the biological aspects, also focus much attention on the legal aspects, which make them as important a component as any other –biological, religious and moral.

The Netherlands became the first country in the world to legalize same-sex marriages, in April 2001. This was followed by Belgium in 2003; Canada is in the process of legalizing it in stages. This was after the Canadian Supreme Court, in late 2004 brought same sex marriages within the ambit of the Canadian Charter of Rights and Freedoms, the legal document that guarantees human rights for all citizens; this ruling meant that same sex couples were in future not to be treated as separate and different. The situation in the world’s biggest democracy, the US, is different, with stiff opposition to the enactment of laws that legalize same sex marriages. Only one state, Massachusetts legalized same sex marriages. (Alderson) However, in September 2005, by a margin of 157-39, lawmakers rejected this earlier amendment, although this would not have retro effect, and would not apply to marriages until 2008. The rationale for this rejection was that it would lead to the growth of civil unions, and that only a marriage between a man and a woman is a proper marriage. (“Gay ‘Marriage’ Amendment Rejected;” A04)

Courts in the US have put forward various reasons for rejecting same sex marriages. In the first such case that came before it, two men, Richard Baker and James McConnell applied for a marriage license in Minnesota in 1970. The clerk rejected their application on the ground that they were both men, and that marriage license, according to the law at that time, could only be given to heterosexual people. The two went to court. The Trial Court upheld the clerk’s decision. When the two went on appeal, the Minnesota Supreme Court, too, affirmed this decision. The basis on which it upheld the lower court’s decision is interesting –it cited the same reason for which the clerk had denied permission, stating that marriage has always traditionally been a heterosexual institution, and that consenting to same sex marriages would be an anomaly. It is, in the words of the court, “a union of man and woman, uniquely involving the procreation and rearing of children.” (Hohengarten) Some states have the existence of what are called ‘civil unions’. By this term is meant a contract afforded to same sex couples to live together, short of marriage. Additionally, this legal term means that the same sex couples are not recognized as a married couple, and are not required to divorce each other to end the union, as in a marriage. (Alderson) Some of the rights civil marriages carry are social security, health insurance, taxation and inheritance. (Same-sex marriage) In the US, a landmark law came into effect in July 2000 in Vermont, by which civil unions were granted. This law states that “all the same benefits, protections and responsibilities under law, whether they derive from statute, administrative or court rule, policy, common law or any other source of civil law, as are granted to spouses in a marriage.” This was the last in a series of laws with the same intention –the earlier ones being judicial decisions to allow civil unions in Alaska and Hawaii. This, however, needs to be understood in the backdrop of stiff opposition to the issue –prior to this law, six states held referenda and 29 states legally barred same sex marriages. (Barclay, and Fisher) Today, in the US, it is estimated that there are between three and four million same sex parents that have adopted anywhere between six and 15 million children. (Bolte) Some of the factors that have fostered the enactment of laws supporting same sex marriages have been high urbanization, racial and ethnic diversity, greater influence of the Democratic Party, and reduced missionary activities. This of course, is not the rule, for there are notable exceptions to these contributing factors, the most prominent being, ironically, Vermont itself. (Barclay, and Fisher)

Debates concerning the issue: This section presents some of the arguments put forward by votaries and opponents of same sex marriages.

One of the strongest bases of support for same sex marriages is in the point of view that “they would serve comparable needs for intimacy and stability and they would entail comparable rights, duties, and liabilities in the various areas of law that impact family life. The only difference between them lies in the sex of the spouse, but this difference is simply immaterial–in all important, or essential respects that matter, the union is of the same sort.”  (West 261) The argument of those in favor of same sex marriages is that this is more important than the legal or biological or social factors; rather than marry someone simply because that person is of the opposite gender and suffer a loveless life, these advocates of this system ask if it is not wiser to marry some one they really love and care for, the only limiting factor being the gender of that person? (Wardle, Strasser, Duncan, and Coolidge 4) There is the argument that same sex marriages can never exist, since marriage is one that is a union between a male and female; hence, in this sense, the idea of same sex marriages is a kind of oxymoron, since same sex couples can never meet the most essential purpose of a marriage in the Judeo-Christian sense, procreation. Courts have traditionally held the view that marriage is untenable if it does not lead to procreation; seen in this sense, supporters of same sex marriages argue that even old people and sterile heterosexuals should be denied marriage. This argument, though, is defeated by the allusion to the point that with the advancement of science, it is possible for same sex couples also to have children. (Alderson)

The argument that children of same sex parents suffer ostracism and become objects of ridicule in society is countered by the fact that once these couples of civil unions separate, due legal protection is offered to the children. This protection is far superior to and more solid than what is offered to children of heterosexual parents, who are not obliged to provide financial support for their children. (Bolte)

People who support same sex marriages argue that they simply have no choice; homosexuality was what they were born with, and hence it is only same sex marriages that can consummate their feelings for each other. If they had the chance to take to homosexuality by choice, why should they take it, they ask, when the topic is still very much hushed up, and by and large, homosexuals are maligned and persecuted in most parts of the world. Their argument also runs into something like this –the true democracy is one that goes by the majority, but respects the sentiment of the minority. Hence, disallowing same sex marriages is a mark of double standards of governments that claim to be democratic, but practice persecution of the minority which does not count for votes. (Deshwar) The urge for love is deeply internal and personal; what is more important is to find emotional and mental stability in a relationship that is expected to last a long time; when this most important foundation of such a relationship, trust, is not to be found in the opposite sex, but in someone of the same sex, is it not sheer need that should drive these people towards a marriage? More importantly, they argue, the emotion of love, so central to a human being, is not monopolized in heterosexuals.  (Gomes)

Another argument in favor of same sex marriages is that the central element on which this relationship is built is friendship. Friendship, so very indispensable an element of happiness, is not bound or obliged to be only between those of opposite sexes. (Weeks, Heaphy, and Donovan 51) Further, there is the argument that any kind of activity that results in sexual gratification need not involve only what the majority accepts as acceptable behavior; if this is the logic of this argument, what about any kind of orgasmic pleasures, such as masturbation, in which only fantasy is involved, but is pleasurable nevertheless? If pleasure that is got by some kind of stimulation, illusory or real, is acceptable, why is pleasure that is derived by sexual activity with the same sex not? (Wardle, Strasser, Duncan, and Coolidge 97-100)

Those opposed to same sex marriages are equally vociferous in their arguments: they believe that same sex marriage is contrary to nature’s creation; they term homosexuality the height of deviant behavior comparable to some of the most heinous acts, and equate its very existence to promiscuity and sexual depravity. Another extremely important factor these opponents of same sex marriages put forward is that one of the prime functions of marriage is biological; when same sex marriages render this impossible, how can this be considered as any kind of marriage? (Wardle, Strasser, Duncan, and Coolidge 97-100)

Another argument put forward in opposition to same sex marriages is legalizing it runs contradictory to established law –while on the one hand, the government bans some sexual practices such as sodomy, legalization of same sex marriages would negate that, as this practice is accepted as common practice in same sex marriages, especially between two men. (Same-sex marriage)

Others are of the opinion that just allowing the status of same sex partners to remain what it is would be just sufficient. They argue, if all their expectations that they have from a same sex marriage are being met by a civil union, then why the clamor for legalized marriage? Is it not a redundant formalization of a relationship? (Herrick) There are counter arguments, too, to this belief: once the state recognizes by law the institution of same sex marriages, they make partners of these marriages eligible for the same benefits that other humans are entitled to. These laws would legally place same sex couples on an equal footing with other categories such as racial minorities, and preclude them from discrimination they face in substantial areas of life such as employment, housing, governmental benefits and so on. There is another extremely strong social component of legalizing same sex marriages –in religious beliefs, marriage is considered the ultimate crowning glory and the finest culmination of people who love and care for each other. Legalization is believed to be the state’s recognition of such a feeling in the same sex partners concerned.  (Barclay, and Fisher)

Conclusion: Same sex marriages have been on the rise in the last four decades or so. Pro-same sex marriage lobbies have articulated that these need to be treated on par with conventional marriages, since most of the parameters that apply to heterosexual marriages, such as love, caring, commitment, fidelity, promiscuity and so on apply to these marriages as well. They see it as the exercise of natural choice, and refute the procreation aspect by claiming that they can have offspring, too. Testimony to this claim is the fact that no less than a quarter of the estimated 600,000 same sex couples in the US have adopted children. They claim, with credibility, and backed up by facts, that when it comes to habitation, they go by the same set of conditions –they have the same commitment to their children as heterosexual people, live a life in which they cooperate with each other in all major aspects of life, pay taxes and contribute to society. All these would be given a greater impetus if they are legally allowed to live as couples. Another important consideration is that gay couples, too, need to be given the right to make important decisions about the partner, such as possible euthanasia in the event of incapacitation of one of the partners. (Pope)

In view of the developments taking place over the decades, and in view of the openness being generally witnessed in the West to same sex marriages, there is a likelihood that the day is not very far off when these marriages would be legalized. Another strong reason to believe that its legalization would happen sooner or later is that the West has a tradition of liberalism; the tradition that was the product of the Revolutions has touched virtually every aspect of life, and there is no reason to believe that only same sex marriages would be exempt from this sweep. In fact, it is a possibility all the more plausible considering that rights have been obtained, some easily and some after a struggle. It is rather anomalous that the US, which champions itself as the protector of rights and freedoms of all clans and cultures should still find it necessary to keep in place laws that are anachronistic to its liberalism-steeped attitude and philosophy.

Written By Ravindra G Rao

Works Cited

 

Alderson, Kevin G. “A Phenomenological Investigation of Same-Sex Marriage.” The Canadian Journal of Human Sexuality 13.2 (2004): 107+. Questia. 28 Nov. 2005 <http://www.questia.com/PM.qst?a=o&d=5008460442>.

Barclay, Scott, and Shauna Fisher. “The States and the Differing Impetus for Divergent Paths on Same-Sex Marriage, 1990-2001.” Policy Studies Journal 31.3 (2003): 331+. Questia. 28 Nov. 2005 <http://www.questia.com/PM.qst?a=o&d=5002028116>.

Bolte, Angela. “Do Wedding Dresses Come in Lavender? the Prospects and Implications of Same-Sex Marriage.” Social Theory and Practice 24.1 (1998): 111+. Questia. 28 Nov. 2005 <http://www.questia.com/PM.qst?a=o&d=5001360867>.

Deshwar, Amit, 28 November 2005, <http://members.shaw.ca/amitdeshwar/samesex.html>

“Gay ‘Marriage’ Amendment Rejected; Massachusetts Lawmakers Shun Measure Opposed by Both Sides.” The Washington Times 15 Sept. 2005: A04. Questia. 28 Nov. 2005 <http://www.questia.com/PM.qst?a=o&d=5011005871>.

Gomes, Charlene. “The Need for Full Recognition of Same-Sex Marriage.” The Humanist Sept.-Oct. 2003: 15+. Questia. 28 Nov. 2005 <http://www.questia.com/PM.qst?a=o&d=5002552306>.

Herrick, Jim. “Same-Sex Marriage Moves Ahead.” Free Inquiry Aug.-Sept. 2004: 59+. Questia. 28 Nov. 2005 <http://www.questia.com/PM.qst?a=o&d=5006690918>.

Hohengarten, William M. “Same-Sex Marriage and the Right of Privacy.” Yale Law Journal 103.6 (1994): 1495-1531. Questia. 28 Nov. 2005 <http://www.questia.com/PM.qst?a=o&d=5001659660>.

Pope, Stephen J. “The Magisterium’s Arguments against “Same-Sex Marriage”: An Ethical Analysis and Critique.” Theological Studies 65.3 (2004): 530+. Questia. 28 Nov. 2005 <http://www.questia.com/PM.qst?a=o&d=5008305877>.

Same-sex marriage, 28 November 2005, <http://en.wikipedia.org/wiki/Same_sex_marriage#General>

Wardle, Lynn D., Mark Strasser, William C. Duncan, and David Orgon Coolidge, eds. Marriage and Same-Sex Unions : A Debate /.  Westport, CT: Praeger, 2003. Questia. 28 Nov. 2005 <http://www.questia.com/PM.qst?a=o&d=102021283>.

Weeks, Jeffrey, Brian Heaphy, and Catherine Donovan. Same Sex Intimacies:  Families of Choice and Other Life Experiments. London: Routledge, 2001. Questia. 28 Nov. 2005 <http://www.questia.com/PM.qst?a=o&d=107607950>.

West, Robin. “20Gay Marriage and LiberalConstitutionalism: Two Mistakes.”  Debating Democracy’s Discontent: Essays on American Politics, Law, and Public Philosophy. Ed. Anita L. Allen and Milton C. Regan. Oxford: Oxford University Press, 1998. 260-269. Questia. 28 Nov. 2005 <http://www.questia.com/PM.qst?a=o&d=49028871>.

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