Same Sex Marriage: A Human Rights Issue
Today, a majority of Americans live in a state where same-sex couples can legally marry. These marriages are recognized by the federal government and granted by 35 states. However, the debate on same-sex marriages rages on. The American reluctance to embrace same-sex marriages is seen as odd by people from other industrialized countries and is a historical anomaly as well. Same-sex unions have been sanctioned by cultures and societies from the ancient Greeks to twentieth-century Native Americans. In A History of Same Sex Marriage (1993), William Eskridge Jr. dissects the American obsession with heterosexual exclusivity of marriage. According to Eskridge, twentieth-century Americans “consider marriage to be an institution that intrinsically involves different - rather than same - sex partners” (p. 5). As a result, our laws reflect these cultural attitudes. For example, Black's Law Dictionary defines marriage as the "legal status, condition, or relation of one man and one woman united in law for life, or until divorced” (Garner, 1999, p. 288).
Cultural norms change, and the US is reaching a tipping point when it comes to societal acceptance of gay marriage. In a recent article in the New York Times, Adam Liptak compares the recent same-sex marriage judicial rulings to earlier Supreme Court rulings on interracial marriage and sodomy. When the Supreme Court struck down bans on interracial marriage in 1967, it was still illegal in 16 states. When the court finally struck down antiquated laws making gay sex a crime in 2003, sodomy was still illegal in 13 states (Liptak 2014). Walter Dellinger, a retired solicitor general, sees the same-sex marriage debate going in the same direction. “Historically, there seems to be a tipping point at which the justices seem more comfortable setting aside state practices,” he said. “When only a third of the states still retain a practice, the court seems ready to act” (Liptak 2014). Today, the current judicial landscape concerning the legalization of same-sex marriage looks the same as it did in 1967 for interracial couples and in 2003 for same-sex intimate partners. In the near future, same-sex marriages will be against the law in less than 15 states. This, according to Dellinger, is the tipping point for same-sex marriage; and the inevitable tide of public opinion will move federal legislation. However, leaving the ideological, religious political maneuvering and emotional public debate out of the equation, and same-sex marriage should still be legalized because it is a basic inalienable human right to be married.
The same sex marriage debate is often an emotional one, with feelings, stereotypes, generalizations, and oversimplification dominating the discourse. The international community looks on with confusion. Recently, a Canadian columnist wrote that “from abortion to school prayer to contraception, Americans never stop debating issues most developed countries settled long ago. Gay marriage may just be the latest addition to this list” (Yakabuski, 2014). Indeed, the same-sex marriage debate in the US has been so heavily politicized that it is difficult to make any observations without resorting to a left vs. right, Democrat vs. Republic construct. This political polarization is unfortunate, because the issue is largely about fairness and basic human rights. Same-sex couples want to marry for the same reasons as heterosexual people. They are in love, but also need legal security and to provide protection for their children. Everyone wants to publicly celebrate their marriage and feel equal under the law of the community and society with which they live.
However, social norms are constantly changing and evolving and the tipping point has been reached. In a study on attitudes towards homosexuality in thirty-five democratic countries, Andersen and Fetner (2008), reported a greater tolerance for homosexuality in younger generations. According to political scientist Peter Levine, this has been a major generational change: “A majority of Americans now accept gay marriage, in the long run, everyone is going to be for gay marriage" he says, "but in the short term, Republicans have a problem of perceived intolerance" (NPR Morning Edition, 2014). Levine believes instead of being rationally analyzed as a civil rights issue, gay marriage has become part of a manufactured political "culture war" that “has plagued American society in recent decade” (NPR Morning Edition, 2014). Levine believes the opposition to gay marriage is crumbling. The federal legalization of gay marriage will finally end this polarizing futile conflict and can focus their attention on addressing other problems in society.
In The Tipping Point: Attitudes on Same-Sex Marriage in the United States, 1988-2012, R. Steven Daniels examines the same-sex marriage debate and suggests that there has been a shift in the way Americans think about the issue, moving away from a religious, morality and political framework to more of an equal rights and justice perspective. He cites a number of important psychological tipping points in the discourse on same sex marriage. The “available survey data suggests that beliefs about the biological or genetic origins of homosexuality crossed the 50% “tipping point” in 2003-2004. Opinions on the morality of homosexuality crossed that point in 2010. Attitudes toward same-sex marriage reached majority status in 2011-2012” (Daniels, 2013, p. 4). UCLA’s Williams Institute recently released a report that analyzed over 325 national public opinion surveys dating back to June 1977 asking the public their opinions on LGBT rights. The report found a “rapid and significant increase over the last three decades in public support for the rights of lesbian, gay, bisexual and transgender people in the United States. On average, public support for marriage equality has more than doubled since the early 2000s” (Census & LGBT Demographic Studies, 2014).
Other research indicates that legally, the opponents of same sex marriage do not have much of a leg to stand on. In his 2008 book Same-Sex Marriage and the Constitution, Evan Gurstmann makes a very simple argument - marriage is a protected and "fundamental right" under the constitution, and “as such it is illegitimate to refuse to extend this right to same-sex couples” (p. 31). Gertsmann dismisses a great deal of “noise” about the gay marriage debate, ignoring “gay rights” arguments, dismissing false analogies such as comparing it to polygamy or framing it as a moral or religious question. Instead he focuses on the “true bedrock of American freedom: the Constitution”(p. 7). According to Gertsmann marriage was one of the first fundamental rights recognized by the Courts. Moreover, it is granted to everyone, from slaves to serial killers: "Far from being limited to a racial context, it has been applied to individuals whom society has every reason to punish, individuals whose fitness for marriage and parenthood could be doubted” (p. 41). Gertsmann explains that Americans have been slow to recognize the legality of gay marriages because they did not want to endorse homosexuality. However, he compares issuing a marriage license to a gay couple to issuing them driver’s licenses. The marriage licenses are for all people, straight people, gay people, all people. When it comes to granting marriage licenses, the states job – according to Gertsmann – is “simply granting certain benefits to its citizens without respect to their sexual orientation” (p. 56) By divorcing the gay marriage debate from homosexuality, he is framing the debate in a logical way that must eventually lead to legal status.
This constitutionality argument is timely. Recently there have been a number of judicial victories for same-sex marriage. This progress has been driven by judges; not by voters or their elected representatives (Holpuch, 2014). In the past twelve months, the number of states allowing same-sex marriage grew from 19 to 35. The country is becoming increasingly receptive to the idea of gay marriage, and even The Church of Jesus Christ of Latter-day Saints, an institution that has vehemently opposed gay marriage for decades, have publically conceded defeat. (NPR Morning Edition, 2014) In 2013, President Obama voiced his support for gay marriage, telling the American public that “upon a long period of reflection, I concluded that we cannot discriminate against same-sex couples when it comes to marriage” (Johnson, 2014).
The US is embarrassingly behind the times when it comes to same-sex marriage. There has been growing momentum in Europe and around the world for states to offer all individuals the fundamental right to marriage (Holpuch, 2014). In 2000, the European Union adopted the Charter of Fundamental Rights, which prohibits discrimination on the grounds of sexual orientation and also guarantees a right to marry and form a family. (EU Charter of Fundamental Rights, 2014). Today, in many countries denying same-sex couples the right to marry is a violation of international human rights law. However, there are currently 17 countries that allow gay marriage. In many countries it is still illegal or even punishable by death to be a homosexual (Johnson, 2014). This issue is therefore a global human rights issue where the United States needs should lead, not follow in the struggle for worldwide recognition of gay marriage. If America does not act resolutely on this issue, they will be on the wrong side of history. The US prides itself on liberty and freedom for all, however, when it comes to this issue, we are not living up to the ideals set forth in our Constitution.
The arguments against gay marriage usually revolve around religion, political conservatism, and the belief that gay marriage will somehow weaken the institution of heterosexual marriage. (The Pew Forum, 2008). Many opponents believe gay marriage will destabilize society and families. However, the opposite has been shown in numerous studies (Brumbaugh, 2008; Badgett, 2014) Marriage equality will offer gay Americans far more stability, increased economic opportunities and improved health. Many opponents argue that granting homosexual couples the right to marry will further weaken marriage “at a time when the institution is already in deep trouble due to high divorce rates and the significant number of out-of-wedlock births” (The Pew Forum, 2008). Gays have not had the right to marry; therefore, the institution of marriage is in deep trouble because of heterosexuals. To deny equality in marriage for this reason is not logical.
Instead of hypothesizing based on fears and fallacies, there are states and countries where the positive results of same-sex marriage can be concretely evaluated. In When Gay People Get Married: What Happens When Societies Legalize Same-Sex Marriage (2014), Lee Badgett quantifies the benefits of gay marriage by in-depth examination of long-term married couples in the Netherlands and Massachusetts. Badgett found that these same-sex couples believed marriage had increased their commitment and their sense of responsibility. Furthermore, the couples felt their children were better off and their families were more stable. They also felt more a part of their communities. They earn more money, are healthier and contribute to their communities in valuable way. Same-sex couples contribute to the US culturally, socially, financially, politically, vocationally, and spiritually. During a worldwide economic recession, it makes little sense to discriminate against a group of people that have so much to contribute to the economy. Badgett’s conclusion is a positive one: families are strengthened by marriage.
Furthermore, there is a strong economic argument to be made for the legalization of same-sex marriage. The Congressional Budget Office estimated in 2004 that if same-sex marriages were legalized in all states, it would add $1 billion to the economy each year for a decade. More recently, researchers at UCLA’s Williams Institute studied the economic impact same-sex marriage would have on individual states. In North Carolina, for example, same-sex marriages would contribute an additional an $64.4 million in spending to the state economy over the course of three years (Census & LGBT Demographic Studies, 2014).
The opponents of same-sex marriage rely on political rhetoric, religious dogma, appeals to emotional fear, generalizations and negative stereotypes to perpetuate an archaic heterosexually exclusive marriage model. There are real economic, constitutional and human rights reasons to pass same-sex marriage legislation at the federal level. There is also substantial academic research to support same-sex marriage. Young people are increasingly tolerant and supportive of gay rights and same-sex marriage and there is a growing consensus that we have reached a tipping point; and that same-sex marriage is not only fair and right, it is inevitable.
References
Andersen, R., & Fetner, T. (2008). Economic inequality and intolerance: attitudes toward homosexuality in 35 democracies. American Journal of Political Science, 52(4), 942-958.
Brumbaugh, S. M., Sanchez, L. A., Nock, S. L., & Wright, J. D. (2008). Attitudes toward gay marriage in states undergoing marriage law transformation. Journal of Marriage and Family, 70(2), 345-359.
Census & LGBT Demographic Studies. (n.d.). Retrieved November 25, 2014, from http://williamsinstitute.law.ucla.edu/category/research/census-lgbt-demographics- studies/
Congressional Budget Office. (n.d.). Retrieved November 25, 2014, from http://www.cbo.gov/sites/default/files/06-21-samesexmarriage.pdf
Daniels, R. S. (2013). The Tipping Point: Attitudes on Same-Sex Marriage in the United States, 1988-2012. In APSA 2013 Annual Meeting Paper.
EU Charter of Fundamental Rights RSS. (n.d.). Retrieved November 25, 2014, from http://ec.europa.eu/justice/fundamental-rights/charter/index_en.htm
Garner, B. (1999). Black's law dictionary(7th ed.). St. Paul, Minn.: West Group.
Gerstmann, E. (2004). Same-sex Marriage and the Constitution. Cambridge University Press.
Holpuch, A. (n.d.). Retrieved November 25, 2014, from http://www.theguardian.com/us- news/2014/oct/27/gay-marriage-legal-us-states
Johnson, L. (2013, March 1). Obama: 'We Cannot Discriminate Against Same-Sex Couples When It Comes To Marriage' Retrieved November 25, 2014, from http://www.huffingtonpost.com/2013/03/01/obama-same-sex- couples_n_2790434.html
Liptak, A. (2014, November 24). In Justices’ Calculations on Gay Marriage, a Legal Golden Ratio Looms. Retrieved November 25, 2014, from http://www.nytimes.com/2014/11/25/us/politics/supreme-court-gay- marriage.html?_r=0
Turf Shifts In Culture Wars As Support For Gay Marriage Rises. (n.d.). Retrieved November 25, 2014, from http://www.npr.org/2014/10/20/357440359/turf-shifts- in-culture-wars-as-support-for-gay-marriage-rises
Yakabuski, K. (n.d.). Gay marriage as America's latest culture war. November 25, 2014, from http://www.theglobeandmail.com/news/world/gay-marriage-as-americas
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