Same-Sex Marriages: Evolution (From an Informal Logic Perspective)
My Informal Logic research paper condoning pro same-sex marriage laws
Same-Sex Marriages: Evolution
Putting oneself in someone else’s shoes, and truly doing so, can sometimes be very difficult. Doing so might make us feel uncomfortable, or like it is a waste of time; or sometimes it truly is impossible to really know what someone else is experiencing. If we are able to drop our preconceived notions, and simply look at something from someone else’s perspective, even if it is just partially experiencing it, we can evolve and progress in communication and interaction. Using deductive and inductive logic, reasoning and examples, coupled with my counter to an anti-thesis, I hope to put the reader in the shoes of a same-sex couple trying to become legally married, in order to condone all states to make it legal for same-sex couples to marry (for the purpose of relevancy in this paper, the focus will just be on same-sex couples in the United States).
I find it important to stipulate some terminology regarding same-sex marriages. Civil marriage is a legal status that automatically confers over a thousand federal rights and benefits and hundreds of additional state rights and benefits, which include an automatic right to visit a spouse in a hospital or to make medical decisions for an incapacitated spouse (LaSala, 2007). A civil union is a separate legal status that provides all the rights and responsibilities of marriage under a different name. Differences between a civil union and a civil marriage include the fact that parties to a civil union are denied all of the 1,138 federally conferred rights, benefits, and responsibilities of marriage (NCLR, 2008). Also, it remains uncertain whether other states will honor civil unions (especially with the passing of the Defense of Marriage Act). The Defense of Marriage Act (DOMA) denies federal recognition of gay marriages and gives each state the right to refuse recognition of same-sex marriage licenses issued by other states (Morse, 2004). Lastly, a domestic partnership refers to a committed relationship between two people who are not married. The rights and responsibilities of a domestic partnership vary, ranging from providing domestic partners with nearly all of the rights and responsibilities of married couples under state law to jurisdictions that have much more limited rights (Nolo, 2009). Also, none of these domestic partnership laws provide any federal rights or benefits. I find stipulating these three “terms” important because of their connotations, especially when they are juxtaposed; then we are able to see the discrepancies and inequalities between them. This hopefully sheds some light on how simply giving same-sex marriage a different name is still unequal, and, further explained, unconstitutional.
Same-sex marriage issues have been in the court systems for nearly forty years, and although progress has been made, there are very few states that support same-sex marriages, which I believe is something that should be supported. The reasons I believe this centralize around many fundamental ideals and foundational concepts that our nation had in mind during its developmental stages, and subsequently its conception. These ideals and concepts also boil down to what is perceived as humane, benevolent, compassionate, etc.—basically along the lines of the “Golden Rule” of treating others the way you would like to be treated—and unfortunately, opinions differ on those ideals regarding this subject. Denying someone this basic and fundamental right (or any “universal” right) because of the way they were born, or even just because of their sexual preference (assuming homosexuality is not hereditarily-based in this instance), is an everyday occurrence that needs to be remedied, for this infringes upon equal treatment laws, and what I perceive to be common decency “laws.” Much of the opposition to same-sex marriages is derivative of religion (usually cited from the Bible), which brings up the issue of separation of church and state. Imposing one’s religious beliefs through state or federal law is, in turn, violating the constitutional right to freedom of religion to those affected. Not allowing a same-sex couple to marry carries the connotation of inequality. It is virtually punishment for a different life-style: you are not man and wife so you are going to get similar, but a lesser degree of, rights. It could also been seen as punishment in the sense that these couples are condemned by constitutional law. This country was founded with the ideals that all people were created equal, and those people also possess inalienable rights, and denying these marriages is the exact opposite of those ideals. It is un-evolutionary in the sense of civil rights and equality; though it is important to recognize the discrepancy and problems that can arise regarding religion in this specific situation—the Bible predates the Constitution, so when people reference the Bible saying that God tells us it is a sin to be homosexual, and people have believed and followed this for thousands of years, in these people’s eyes, the Bible takes precedent over the Constitution. The Bible possesses higher meaning, power and relevance, in this case. This paper’s intention is not to discuss whether God exists, or if He is right, or if we are interpreting the Bible “correctly,” etc., because this issue basically dwells down to personal belief and faith which contain so many varying factors that are usually unarguable, and subjective (or inductive), and will vary from person-to-person. The real point, and key word to recognize, is the legal aspect of the issue, which will be discussed in greater detail later.
The issue is not—law over religion, just because it states freedom of religion in the Constitution; the issue is religion over law. The Bible has been around much longer than the Constitution, and it has withstood the test of time. In fact, the Constitution has a lot of religious background to it, as most American settlers were affiliated with some religion. More specifically, for example, approximately eighty-eight founding fathers (about fifty-five percent) were Episcopalian/Anglican (Adherents, 2005). In addition, there is no doubt religion/God played an influence in the writing of the Constitution, as well as many other governmental issues: “In God We Trust” is inscribed on our money; in the court of law we swear to tell the truth on a Bible, or “So help you God”; and up until recently, prayer was allowed in schools, as well as using the word “God” in the Pledge of Allegiance. This is also seen above within the argument in favor of legalizing same-sex marriages: the “Golden Rule” is derivative of religion. Religion/God is ultimately the highest authority to answer to, and allowing same-sex marriages to become legal will infringe upon religious institutions across the nation (by undermining DOMA). Although this is inductive reasoning, the probability that this will occur is very likely. Changing the legal definition to incorporate homosexual couples as well will cause an inconsistency between legal and religious definitions of marriage. This can contribute to the possibility that any discrimination against same-sex marriages may be seen as "invidious discrimination," "irrational," or "motivated by animus," (Severino, 2007, p. 939). So if a religious institution does not extend identical benefits (or get rid of them altogether) to same-sex marriages, they face the possibility of civil liability, or the exclusion from government programs and benefits (Severino, 2007). Also, making this a federal law creates the prospect of legal threats for following one’s religious beliefs. If the Bible really is the word of God, and God condemns homosexuality, and I believe in God, and that He is a higher authority than anything else, then creating and enforcing same-sex marriage laws will encroach on my religious freedom, and put us (believers of God) in legal jeopardy, if one were to break the new same-sex marriage laws. It also jeopardizes the religious institution’s employee/employer relationship, as an employee might enter into a same-sex marriage in defiance of religious teaching, or employers might seek to terminate employees who reject their moral and religious teachings (Severino, 2007). It also creates the risk of lawsuits for dissenting religious institutions under fair housing laws, public accommodation laws, as well as the potential for “hate crimes” or “hate speech” liability, losing tax-exempt status, exclusion from competition for government-funded social service contracts, facilities, fora, and from the state function of licensing marriages (Severino, 2007). All of these risks contribute to the conundrum that if same-sex marriages become legal, it may cause many additional issues, as well as the fact that it has the very real plausibility of inadvertently infringing upon religious freedoms of those who oppose same-sex marriages. There is also a fear that opening the door to same-sex marriages will also open the door to the issues of polygamous and incestuous unions (Borchers, 2008). If we grant same-sex couples these rights, who is to say polygamous and incestuous couples should not receive the same rights? Further, allowing the federal government to make decisions about same-sex issues requires the Court to "tak[e] sides in the culture war, departing from its role of assuring, as a neutral observer, that the democratic rules of engagement are observed,” according to Justice Scalia of the Supreme Court (Seidman, 2008, p. 135). This should not be a federal decision, but a state’s one instead, leaving the federal government out of moral judgments, and leaving it up to the citizens of each state.
When it comes to the moral standpoint of where same-sex marriage stands, it can virtually condense down to one “equation”: religion vs. law; or subsequently, does religion (R) take precedent over (>) law (L), or vice versa. The problem that arises is that the answer is only specific to each individual person; is your answer R > L (religion is “greater than” law), or vice versa? The morality behind homosexuality, and in turn same-sex marriages, completely relies on a subjective opinion (the “moral judgment” explained above). So how do we know which is “right” and how do we apply that result to law (or purposely not making a law), because the question is not whether homosexuality is moral, or right, but whether same-sex marriages should be legalized [nationwide]? Unfortunately, on top of the subjective, foundational morality of the issue, there are additional, grey, disputable areas regarding same-sex couples. Fortunately though, these areas provide current issues regarding the matter, which help to demonstrate the current trends of thinking of the nation, as well as in the court system. Debate on whether homosexuality is genetic is very common, and although the research is still quite preliminary, postdoctoral researcher Sven Bocklandt of U.C.L.A. "confirms that there is a strong genetic basis for sexual orientation and that for some gay men, genes on the X chromosome are involved," (The Advocate, 2006, p. 47). This would obviously be paradigm altering, especially to the religious community, as it would refute and discredit the argument that homosexuals are not born that way, and it is strictly a conscience choice. Although this is inductive reasoning, trends and progress in science and research make this a valid, pertinent issue, with possible catastrophic effects that would change the entire face of this matter if the research were proven to be true (which it is leaning towards at the moment).
In response to the issue of the possibility of infringing upon the freedom of religion rights of those forced to “believe” in something that is strongly against what their doctrine states they should believe, I pose this question: whose doctrine should the federal government uphold? Who is to say that the doctrine that condemns homosexuality should take precedent over any other one (why is that the qualification)? On top of that, why should any one religion’s beliefs be protected before/over the rights of a particular group? Upholding equal rights laws do not pose that same problem—having a plethora of “options”—as well as the fact that when upheld, they do not disadvantage any groups; instead, equal rights laws can be seen as leveling the playing field. Borchers gives us a good hypothetical example of how this view would be used by the Supreme Court:
Suppose, to take a light-hearted variant of Amendment 2, Colorado had adopted a measure forbidding special protection of left-handers. It seems likely that the Supreme Court would have said that, no matter how odd the law might be, it constitutes a rational effort to keep righties and lefties on the same footing (2008, p. 1635).
Basically, there are no real grounds to grant one religion privilege over the others, and especially over a disadvantaged group’s strive for equal rights.
State defense of marriage acts are at the crux of the matter, as for one side, they are seen as protecting state’s rights, and on the other side they are seen as being in violation of the equal protection clause, and in conflict with the “full faith and credit” clause of the Constitution (Stuart, 2001). Which instance should be upheld legally? Should the nation be forced to accept same-sex marriages, even if their religion states otherwise, effectively infringing upon their freedom of religion rights? Or is granting equal rights to a disenfranchised minority group more important? Two court cases regarding homosexuality and law are being drawn upon to address these questions, and help to shed light on how we, as a nation, are progressing in the area of this question: Romer v. Evans, and Lawrence et al. v. Texas. The Romer case addresses equal protection due to the attempt of a Colorado voter-adopted measure known as “Amendment 2” in which Colorado was trying to set in place a law stating they did not have to “enact, adopt or enforce any statute, regulation, ordinance or policy” that allowed for “any person or class of persons to have or claim any minority status, quota preferences, protected status or claim of discrimination” (Borchers, 2008, p. 1635). The U.S. Supreme Court ended up striking down the amendment after it failed the rational relation test, stating that the amendment possessed “peculiar property of imposing a broad and undifferentiated disability on a single named group," as well as the fact that “homosexuals are forbidden the safeguards that others enjoy or may seek without constraint” (Borchers, 2008, p. 1635). In the Lawrence case, the Supreme Court struck down a Texas statute criminalizing same-sex sodomy on substantive due process grounds. These two instances (cases) are representative of the change and progress being made regarding the legality of homosexuality. The U.S. Supreme Court is now looking to these cases for “guidance,” so-to-speak. “Taken together, Romer and Lawrence suggest that state efforts to enforce, by way of punishment or disadvantage to persons or discrete groups, conventional sexual morality between adults are irrational and therefore unconstitutional” (Borchers, 2008, p. 1635). It may seem like the statement that precursors this is circular in the sense that the subject matter dwells right back down to morality, but it is important to notice the distinction—punishing or disadvantaging persons/groups in order to perpetuate conventional sexual morality is irrational and unconstitutional. Which brings us back to DOMAs; a state not recognizing a same-sex marriage puts same-sex couples at a disadvantage, as well as also serving as a form of punishment—not receiving the rights and privileges that comes with civil marriages. According to the U.S. Supreme Court’s own ruling (their reasoning for the decision), this would fall under an unconstitutional act.; and simply not allowing the same rights and privileges because of one’s sexual preference or orientation is blatant discrimination, and in violation of equal protection laws. Lastly, I find it important to point out that until many mysteries are uncovered (such as homosexuality being genetic), this will most likely remain a split and highly debated topic. Though, I hope it is apparent to see the struggles a same-sex couple faces when trying to obtain a simple right, which we sometimes may take for granted. For example, imagine you found someone you are absolutely in love with and they happened to be the same sex as you (once again, inductive reasoning based on the genetic issue), and you want to guarantee that if something were to happen to you (i.e. a car accident), that your partner would be able to visit you in the hospital, or they would be able to make important life decisions regarding your health; if you live in a state that does not recognize or offer same-sex marriages, your partner would not be able to do any of those things. This particular issue is just touching the iceberg as there are so many other obstacles same-sex couples face. I believe it is time for our country to recognize what is occurring socially regarding this topic, and it is time to relinquish the stigma of homosexuality and the possible “threats” to our society and civilization that it poses. If we do not, this issue may serve as representation for our intolerance as a nation, and it undermines what this nation was founded on (the principles of the Constitution)—we are created equal, with inalienable rights. Legalizing and accepting same-sex marriages will help in progressing and socially evolving our nation. Same-sex marriages: evolution for our nation.
Adherents. (2005). Religious Affiliation of the Founding Fathers of the United States of America. Retrieved on April 4, 2009 from http://www.adherents.com/gov/Founding_Fathers_Religion.html
Borchers, P. (2008). The Coming Collision: Romer and State Defense of Marriage Acts. Brigham Young University Law Review, 2008(6), 1635-1649. Retrieved April 4, 2009, from ABI/INFORM Global database. (Document ID: 1656665041).
LaSala, M. (2007). Too Many Eggs in the Wrong Basket: A Queer Critique of the Same-Sex Marriage Movement. Social Work, 52(2), 181-3. Retrieved April 4, 2009, from Research Library database. (Document ID: 1283030641).
Morse, D. (2004). (Same) Sex Education. Benefits Law Journal, 17(3), 1-4. Retrieved April 12, 2009, from Research Library database. (Document ID: 718145061).
NCLR (National Center for Lesbian Rights). (2008). Marriage, Domestic Partnerships, and Civil Unions: An Overview of Relationship Recognition for Same-Sex Couples in the United States. Retrieved on April 4, 2009 from http://www.nclrights.org/site/PageServer?pagename=issue_overview
Nolo. (2009). Domestic Partnership Benefits. Retrieved April 4, 2009 from http://www.nolo.com/article.cfm/ObjectID/86D4108D-25D1-498A-B38AF4AB25F14E84/catID/64C2C325-5DAF-4BC8-B4761409BA0187C3/118/304/190/ART/
Seidman, L. M. (2008). GAY SEX AND MARRIAGE, THE RECIPROCAL DISADVANTAGE PROBLEM, AND THE CRISIS IN LIBERAL CONSTITUTIONAL THEORY. Harvard Journal of Law and Public Policy, 31(1), 135-150. Retrieved April 12, 2009, from Research Library database. (Document ID: 1485280721).
Severino, R. (2007). OR FOR POORER? HOW SAME-SEX MARRIAGE THREATENS RELIGIOUS LIBERTY. Harvard Journal of Law and Public Policy, 30(3), 939-982. Retrieved April 4, 2009, from Research Library database. (Document ID: 1389685901).
Stuart, J. (2001). The Challenge of Same-Sex Marriage: Federalist Principles and Constitutional Protections by Mark Strasser (Review). Journal of Men's Studies, 9(2), 295. Retrieved April 12, 2009, from Research Library database. (Document ID: 506104901).
The Advocate. (2006, April). Homosexuality's "X" factor. The Advocate,(960), 47. Retrieved April 12, 2009, from Research Library database. (Document ID: 1020180181).