If all goes well, Monday's post will be about Charlotte Perkins Gilman's Feminist Utopian novel, Herland (1915). Rather than fill space with what I planned on using, I thought I would dig up something I wrote in the summer of 2008 (as was required by the class I was taking) that is somewhat related to the idea of discovering the potential of a people forced to exist without full rights (nor full right of participation) in a society.
A couple of things struck me as I read through this (really just checking for any corrections I needed to make, and I found three so there are probably some I missed). First, this was only a little over three years ago. What the hell? Second, I remember not dedicating a lot of time to this, but it does appear that I did real research. Lastly, this paper required me to cite in some manner other than APA, which bothers me as I see it now.
The Value of a Citizen as Measured by Sexual Identity
There have been great strides in tolerance and acceptance regarding the status of homosexuals and homosexuality in America over the last few decades – note that homosexuality is no longer classified as a mental disorder, nor is sodomy specifically targeted as a crime in as many states and municipalities as it had been (sixteen states still have sodomy laws, four of which apply only to same-sex sodomy) – yet the status of gay and lesbian couples remains challenged. This debate revolves around the notion of what constitutes a marriage, a question that has different answers for the persons involved, the society, and the state. Indeed, when viewed legally, a marriage is a type of contract between two competent1, adult individuals that is recognized by the state, and it is at this stage where the limitations as to what the state will recognize becomes problematic. Some states have tried to alleviate the issue of same-sex marriage by allowing for civil unions (or domestic partnerships) – which must be viewed as somehow inferior to marriage as they have been offered as an alternative after the possibilities of same-sex marriages have been banned by the state (see Massachusetts). The question then becomes one of what the differences are between civil unions and marriage, and to how they are to be recognized and protected at both the state and federal level. The deeper question remains one of how the distinction between civil unions and marriage can be reconciled legally and within the ideals laid out in the Constitution.
At the heart of the debate is the Defense of Marriage Act (DOMA). DOMA was signed into law 21 September, 1996 by President Bill Clinton. Primarily authored by Rep. Bob Barr (then R-Georgia), DOMA has three functions. First, it states that no individual state is required to acknowledge the same-sex marriages or civil unions allowed by other states – a problematic solution when contrasted with the full faith and credit clause (Article IV, Section 1) of the Constitution. Second, DOMA prohibits the federal government from recognizing same-sex marriages, even when allowed and recognized by a state. Third, DOMA defines marriage in such a manner as to disallow the possibility of same-sex marriages. Only five states – Massachusetts, New Jersey, New Mexico, New York, and Rhode Island – do not have some kind of law prohibiting same-sex marriage. Indeed, many states use DOMA as the template by which to ban same-sex marriage at the state level. (“Companies uncover loopholes in N.J. civil union law”)
The objection to same-sex marriages is not one to be disregarded out of hand. Marriage has long been defined as being between a man and a woman (ostensibly where both are consenting adults, though this is a more recent occurrence) and thereby establishing the basis of a familial unit capable of having and raising children. While there has been some limited social stigma associated with those who enter into marriage for reasons other than creating a family – such as for wealth or social position – these have been accepted so long as they were between a man and a woman. Moreover, there is often a religious component to the objection to homosexuality in general (Leviticus 18:22, Leviticus 20:13, Romans 1:26-27) that has been used as the foundation (if not the entirety) of the objection to same-sex marriages. Compounding the problem is the long-held belief that homosexuality is a type of sexual perversion, that gays and lesbians are more likely to sexually abuse children, thus making them unfit to be part of a familial unit. The more recent incarnation of this is the belief that gays and lesbians raise their children to be homosexuals (this interprets an acceptance of homosexuality as the promotion of homosexuality), and is closely tied to the notion that one’s sexuality is a matter of choice. Indeed, there is a belief that allowing same-sex marriage would invalidate gender roles – a position tangential to the issue at hand, but one that clearly shows what may be perceived to be at stake by those who object. While groups like The Family Policy Council of West Virginia use their website to encourage people to make honest friendships with people who disagree with their position (of opposing same sex marriage), they still hold to the notion that they have the ultimate truth, and one that must be shared in love (as that is what Christians do). (“KJV Gift and Award Bible”; “Family Voice: The Official Blog of the Family Council of West Virginia”)
At the same time, the position of The Family Policy Council of West Virginia is that same sex marriage does hurt traditional marriages. There is no objection to homosexuals forming a loving commitment with one another given, nor is one directly implied. What the group believes at stake, however, is the concept of family. Their belief is that same sex marriage being recognized leads to the position that “their gender, their being...do not matter to the family.” Their objection is not one of same sex relationships, but an argument that recognition of same sex marriage is an admission of the necessity of eliminating gender roles within the family. They hold that “[t]he proposition on the table is asking all of us in society to radically and permanently alter our own definition and understanding of family to say that ultimately male and female, husband and wife, do not matter for the family.” While the merits of these arguments can be debated, it is easy to understand how deeply held beliefs, not just about God and religion, but about themselves, and what constitutes a family, have stirred their passions to rise up and resist same sex marriage. (“Family Voice: The Official Blog of the Family Council of West Virginia”)
Not surprisingly, if same sex couples are believed to have destroyed the roles necessary within a family, there is going to be an objection to same sex couples raising children, and specifically adopting children. The Family Policy Council of West Virginia posts information supporting their belief that not only are the children of homosexual parents more likely to self-identify as homosexual, but that the scientists who have reported “no differences” between children raised by heterosexual and homosexual parents are serving a pro-homosexual agenda. The Family Policy Council of West Virginia specifically cites the work of Dr. Trayce Hansen, a clinical and forensic psychologist whose career is largely dedicated to revealing the pro-homosexual agenda in many studies regarding children being raised by openly homosexual parents as opposed to those raised by “others.” Dr. Hansen alleges that children raised by openly gay parents are between four and ten times more likely to identify themselves as “other than heterosexual” as adults. While this may reflect a genetic component to homosexuality or a more realistic representation of actual homosexuality – people who are not taught to fear or object to the notion of homosexuality are less likely to deny it if they themselves are homosexuals – even Dr. Hansen reports that the existing work in the field is not clear enough to draw any substantive conclusions.
A necessary question in the debate over the value of same sex marriage is if one’s sexuality can be determined by choice. There are certainly those who argue that this has been established. As listed on Conservapedia: “The trustworthy encyclopedia”:
In respect to the issue of homosexuality and choice, given the existence of ex-homosexuals and given the existence of human cultures where homosexuality has apparently not existed, the position that homosexuality is ultimately a choice in individuals or at the very least can be a choice in individuals has strong evidential support. In addition, given that the homosexual population has significantly higher rates of many diseases and the homosexual population also has significantly lower rates of various measures of mental health it can be strongly argued that engaging in homosexual acts is a bad choice for individuals. Another other factor that makes engaging in homosexual acts a bad choice for individuals is the significantly higher rates of domestic violence in homosexual couples. (“Homosexuality and Choice”)
The Conservapedia does not provide any evidence to support these assertions. Instead, it appears to be content to provide a platform to beliefs that many conservatives already have. The site does attempt to further define the issue.
In addition, a distinction is made between choosing to have homosexual desires and choosing to engage in homosexual sex acts. And there are other aspects of choice to homosexuality. One can decide the following aspects: whether or not to believe that homosexual acts are detrimental to one's immortal soul, emotional well-being or physical health and one can also obviously choose whether to enter into a homosexual relationship or not. Obviously one must use wisdom and also do diligence in regards to these matters. For example, the Bible condemns homosexuality and sound Bible exegesis reveals this matter. (“Homosexuality and Choice”)
With the choice being so tied to religious beliefs, it would appear that Conservapedia is not particularly interested in scientific studies, or even case studies, of homosexuality and choice. The fact that homosexuality can be defined both as orientation (sexual desire of members of the same sex) and activity does little to alleviate the problem. While it is entirely possible for a person to make the attempt to not act on his or her sexual desires in toto, that does not address whether that person should, or even if doing so is more healthy than acting on impulses found objectionable by others wholly not involved in their formation or resolution.
Unresolved by the idea that sexuality is a choice is the question as to if one can choose his or her sexual orientation, is it valid to penalize (socially, legally, and economically) an orientation? Does it not violate the basic tenet of equal protection under the law for all citizens? Is it ever acceptable to penalize behavior that is nominally pro-social? Perhaps this is one of the enduring reasons why homosexuals are presented as being against society, and that in developing their own sub-culture (a counter-culture according to those who strongly object to it), they have clearly demonstrated their collective lack of respect for the heterosexual majority. However, is there truly such a thing as a gay or homosexual subculture, or is this merely a representation of the limited understanding and prejudice against homosexuals? In reality, the latter is much more likely.
However, the objection to same sex marriage is not limited to objections based upon preserving the known family unit or because of the dangers posed by homosexual parents creating future generations of homosexuals. In one of the most famous, and perhaps most often mocked, objections, then Senator Rick Santorum (R-Pennsylvania) made a connection between homosexual acts and “man on dog” relations during an interview with the Associated Press (23 April, 2003).
We have laws in states, like the one at the Supreme Court right now, that has sodomy laws and they were there for a purpose. Because, again, I would argue, they undermine the basic tenets of our society and the family. And if the Supreme Court says that you have the right to consensual sex within your home, then you have the right to bigamy, you have the right to polygamy, you have the right to incest, you have the right to adultery. You have the right to anything. Does that undermine the fabric of our society? I would argue yes, it does. It all comes from, I would argue, this right to privacy that doesn't exist in my opinion in the United States Constitution, this right that was created, it was created in Griswold — Griswold was the contraceptive case — and abortion. And now we're just extending it out. And the further you extend it out, the more you — this freedom actually intervenes and affects the family. You say, well, it's my individual freedom. Yes, but it destroys the basic unit of our society because it condones behavior that's antithetical to strong healthy families. Whether it's polygamy, whether it's adultery, where it's sodomy, all of those things, are antithetical to a healthy, stable, traditional family.
Every society in the history of man has upheld the institution of marriage as a bond between a man and a woman. Why? Because society is based on one thing: that society is based on the future of the society. And that's what? Children. Monogamous relationships. In every society, the definition of marriage has not ever to my knowledge included homosexuality. That's not to pick on homosexuality. It's not, you know, man on child, man on dog, or whatever the case may be. It is one thing. (“Excerpt from Santorum interview”)
Senator Santorum is attempting to argue that there is no intrinsic or overriding right to privacy – a whole different debate – and that because there is no ultimate right to privacy, it does fall within the purview of society, and society’s legislative body (government) to regulate what are acceptable behaviors and even as to what relationships may be recognized. While many will no doubt agree with the senator in regards that adultery, incest, and polygamy are viewed as behaviors that are rightfully shunned (though adultery is illegal only in Rhode Island) – and that bestiality is not a behavior to be encouraged – it is less likely that homosexuality would be viewed in the same light. While Senator Santorum’s interview may have been seen as outrageous, he may have been prescient in foreseeing the case of Bimbala Das, a 30 year old Indian woman who married a snake on 2 June, 2006. Around that same time, a tribal girl from Bhubaneshwar, India married a dog. If Hindu rituals for marriage allow for such unions, then can there be a serious objection to it? However, to assert that these two instance validates DOMA is a misunderstanding of what DOMA entails, as well as evincing a lack of knowledge as to existing state laws as to what is necessary to enter into a marriage. (“Love at First Bite: Woman Marries Snake in Eastern India”)
The issue as to what is the difference between a civil union (or domestic partnership) and marriage – as viewed by the state – is what needs to be examined, for if there is a substantive difference then there is sanctioned inequality. Some states have gone so far as to define homosexuals as not being a minority group so as to not allow them to qualify for protection against discrimination on the basis of their sexual orientation. The most glaring instance of government sanctioned inequality is DOMA, which allows (amongst other things) states to ignore the civil unions/domestic partnerships sanctioned by other states.
The Defense of Marriage Act (DOMA) does two things. First, it provides that no State shall be required to give effect to a law of any other State with respect to a same-sex "marriage." Second, it defines the words "marriage" and "spouse" for purposes of Federal law. (“Defense of Marriage Act”)
As noted above, DOMA mandates that same-sex marriages to be defined separately from traditional marriage (which is problematic for attempting to provide the same protections, benefits, etc.).
The second substantive section of the bill amends the U.S. Code to make explicit what has been understood under federal law for over 200 years; that a marriage is the legal union of a man and a woman as husband and wife, and a spouse is a husband or wife of the opposite sex. The DOMA definition of marriage is derived most immediately from a Washington state case from 1974, Singer v. Hara, which is included in the 1990 edition of Black's Law Dictionary. More than a century ago, the U.S. Supreme Court spoke of the "union for life of one man and one woman in the holy estate of matrimony." Murphy v. Ramsey, 114 U.S. 15, 45 (1985). (“Defense of Marriage Act”)
Now, if the state is bound to only recognize “holy” matrimony, then the issue becomes one of the difference between church sanctioned marriage and that of state sanctioned unions. While this does not address the issue of same-sex versus traditional marriage, it does beg the question if those who were married in a secular ceremony without any religious trappings or overtones are to be afforded less legal consideration than those married with God’s name invoked. DOMA, as noted above, also defines spouse as referring “only to a person of the opposite sex who is a husband or a wife.” This eliminates the possibility of realizing same-sex marriage while DOMA stands.
The unfortunate, but perhaps not unforseen, consequences of DOMA are not limited to how partnerships are termed. Indeed, by allowing individual states to chose whether they recognize the validity of a same-sex marriage (which has been interpreted as extending to civil unions and domestic partnerships), the protections provided by states that have enacted laws to allow for same-sex unions can be ignored by both state and the federal government. The most glaring example of this is when DOMA and the Federal Employment Retirement Income Security Act (ERISA – which deals with companies that hire outside agencies to administer insurance plans) interact. Companies in both New Jersey and Vermont have hired agencies based out of state to administer insurance plans. These agencies then claim that they must act in accordance with DOMA (and thus restrict the definition of spouse and thereby eliminate spousal or partner benefits applied to same-sex partners without having to reduce the cost to the employee or the corporation) when administering the insurance accounts, and therefore cannot be held to provide the benefits and protections mandated by state law. (“Companies uncover loopholes in N.J. civil union law”)
Civil unions and domestic partnerships are not allowed the same consideration under the law as are marriages. This can be seen in regards to tax and next of kin considerations. The most glaring example of inequality, however, comes from Massachusetts where support or alimony payments from dissolved civil unions are not tax deductible (where they are in regards to a dissolved marriage), and that even the division of property may be taxed. (“Same-sex divorce in Massachusetts isn't equal”)
What is at issue here may be more directly addressed to the corporations, or the value of minimizing the benefits allowed to employees by any (legal) means available – under the aegis that this should benefit the corporation – becoming an accepted operation in current business ethics (if opposed in theory). Just as there has appeared to be a reduced commitment to protecting citizens (the Environmental Protection Agency has failed to act upon its own findings, favoring business interests over the rights of the citizenry) from corporate actions in the name of commerce, the business community may hold the belief that disadvantaging a minority group (which, as detailed above often is not permitted to protected as a minority group) is acceptable as it does not directly affect the majority and financially benefits those with the greatest ability to influence policy.
As has been eluded to earlier, there is an issue of equal protection under the law with which to be dealt. How, in the light of the XIVth Amendment, can DOMA stand? Section 1 of the amendment reads
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. (“United States Constitution”)
Clearly, there becomes an issue of ownership of property in regards to marriage, but in allowing states and the federal government to disavow laws that allow for civil unions and same sex marriages in an effort to appease older, more conservative voters, there is a violation of the Constitution’s mandate of full faith and credit between the states and federal government, and violates even the possibility of equal protection for same sex couples under the law.
More to the point, when the Supreme Court ruled in Loving v. Virginia (1967) that miscegenation laws violated the fundamental right to marry, it laid the essential groundwork to allow for same sex marriages. The court ruled that “the freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.” The court establishes a fundamental right to marry, one that is not restricted by race – the issue at hand – and that has no wording as to restrict it by sex. It would appear that marriage is a right afforded by the Constitution, and that DOMA stands to abridge this right from a minority group. (“Overruling Dred Scott”)
While it is not necessary for the United States of America to follow the lead of other nations in recognizing same-sex marriages (the Netherlands, Belgium, Canada) or even allowing gays to serve openly in the military (see comments regarding NATO troops not being able to handle heavy fighting in Iraq because of this), it does reflect a fundamental rejection of the ideals of equality under the law for all citizens. What is a greater risk, however, is that the emerging generation of voting-age citizens (18-29) does not oppose the notion of civil unions or same-sex marriages, and because of this, there has been a concerted effort to mandate the biases and fears of an older generation as law, and thus subvert the will of the people for generations to come. (“The Legal Debate Over Same-Sex Marriage”)
So long as there is legislation that allows for the rights granted by state laws to be stripped away or disregarded – even with the odd notion that it is the Christian position to take, there will be an inequality that needs to be addressed. However, there is little legal justification for restricting marriage as DOMA does, or for separating civil unions and domestic partnerships from the marriage (especially in regards to the rights afforded by them). While there may be sociological and psychological reasons for keeping the family unit and marriage defined as it has been, these simply do not trump the mandate of the government to provide equal and fair protection for all of its citizens. So long as DOMA stands, the value of a citizen who also happens to be homosexual will be unfairly diminished.
Works Cited
Associated Press. "Excerpt from Santorum interview." USA Today 23 Apr. 2003.
Burt, Robert A. "Overruling Dred Scot: The Case for Same-Sex Marriage." Widener Law Journal 17 (2007): 73-95.
"Civil Union." Encyclopædia Britannica. . Encyclopædia Britannica Online. <http://search.eb.com/eb/article-9437570>.
"Companies uncover loopholes in N.J. civil union law." Contemporary Sexuality 1 Apr. 2008.
"Defense Of Marriage Act" 5/96 H.R. 3396 Summary/Analysis." From the Lectric Law Library Stacks. 25 Sept. 1998. 29 July 2008 <http://www.lectlaw.com/files/leg23.htm>.
"DOMA Watch." DOMA Watch. 29 July 2008. 29 July 2008 <http://www.domawatch.org/index.php>.
Family Voice: The Official Blog of the Family Council of West Virginia. 25 July 2008. 29 July 2008 <http://familyvoice.wordpress.com/2008/07/22/why-not-homosexual-marriage/>.
"Homosexuality and Choice." Conservapedia: The Trustworthy Encyclopedia. 29 July 2008. 29 July 2008 <http://www.conservapedia.com/homosexuality_and_choice>.
"Judeo-Christianity and homosexuality." Religious Tolerance.org. 29 July 2008. 29 July 2008 <http://www.religioustolerance.org/hom_bibl.htm>.
KJV Gift and Award Bible. Grand Rapids: Zondervan, 2001.
"The Legal Debate over Same-Sex Marriages." Britannica Book of the Year, 2005. . Encyclopædia Britannica Online. <http://search.eb.com/eb/article-234913>.
"Love at first bite: Woman marries snake in eastern India." Khaleej Times Online. 2 June 2006. 29 July 2008 <http://www.khaleejtimes.com/displayarticlenew.asp?xfile=data/subcontinent/2006/june/subcontinent_june56.xml§ion=subcontinent>.
"Pro-Homosexual Researchers Conceal Findings." Dr. Tracye Hansen. 2 July 2008. 29 July 2008 <http://www.drtraycehansen.com/index.html>.
"Same-sex divorce in Massachusetts isn't equal." Contemporary Sexuality 1 Mar. 2008.
"US MArriage Laws." US Marriage Laws. 29 July 2008. 29 July 2008 <http://usmarriagelaws.com>.
"United States Constitution." Cornell University Law School. 29 July 2008. 29 July 2008 <http://www.law.cornell.edu/constitution/constitution.articleiv.html>.
"Why not "same sex" marriage?" Alliance Alert. 29 July 2008. 29 July 2008 <http://www.alliancealert.org/2008/07/29/why-not-homosexual-marriage/>.
1“Marriage requires two consenting people. If either person cannot or does not understand what it means to be married (due to mental illness, drugs, alcohol, or other factors affecting judgment), then that person does not have the capacity to consent and the marriage is not valid.” –(“US Marriage Laws”)
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