ISSUEShould Society Recognize Gay Marriages?
ISSUE SUMMARY
In December 1990 a gay male couple and two lesbian couples filed suit against the state of Hawaii, charging that the state had violated the equal protect ion clause of the state constitution by denying them marriage licenses. On May 27, 1993, the state supreme court, in Baehr v. Lewin, overturned a lower court decision and held that Hawaii had in fact violated the equal protection clause of its own constitution by denying marriage licenses to these same-sex couples. In December 1995 a Hawaii legislative committee recommended legalizing same-sex marriage by a vote of 5-2. In case the legislature was not willing to legalize same-sex marriages, the committee offered a backup recommendation that the state implement a comprehensive domestic partnership law. A year later, in December 1996, a circuit court judge ruled that the state had failed to demonstrate any compelling state interest for not granting marriage licenses to homosexual couples. On April 29, 1997, the Hawaii legislature voted to grant gay couples the rights and benefits of married couples but stopped short of legalizing same-sex marriage. Under this domestic partnership law, homosexual couples would be eligible for spousal benefits for insurance and state pensions, inheritance rights, the right to sue for wrongful death, and other benefits. Meanwhile, the legislature agreed to ask Hawaii's voters to approve a constitutional amendment in November 1998 that would give lawmakers the power to reserve marriage for heterosexual couples only. Over a dozen states have hurried to adopt laws that would define marriage as the "union of a man and a woman" and deny recognition of gay and lesbian marriages, in the event Hawaii recognizes same-sex marriages. In January 1996 the U.S. Congress enacted the Defense of Marriage Act, allowing any individual U.S. state, territory, possession, or Indian tribe to ignore same-sex marriages legally recognized by Hawaii or any other state. Without the Defense of Marriage Act, all states would be required to give "full faith and credit" to a gay or lesbian marriage recognized by a single state, such as Hawaii. In recent years American corporations have also been adapting to changing social values. About half of the Fortune 500 companies have policies barring discrimination against homosexuals, while half of the Fortune 1000 companies have domestic partnership health benefits. These companies include Microsoft, the International Business Machines (IBM) Corporation, the Walt Disney Company, Apple Computer, and Time Warner. A growing number of corporations go beyond offering employees with domestic partners basic health benefits. Domestic partner benefits, previously given only to heterosexual married couples, may include life, disability, and dental insurance; tax relief; bereavement and dependent care leave; tuition; use of recreational facilities; and purchase discounts on memberships at local health clubs, airline tickets, and other services. Few issues in American society today generate as much heat and emotion as the debate over gay and lesbian marriages. In the following selections, Christine Pierce argues that gay men and lesbians should have the same right to marry and form a family as heterosexuals do, while Robert H. Knight contends that such recognition would destroy the stability of the family and society. YESChristine Pierce Gay MarriageIntroductionThe effort to legalize gay marriage will almost certainly emerge as a major issue in the next decade," says law professor Nan D. Hunter in the October 1991 Nation. Why is this so? In part, what drives this issue is the practice of most United States employers and many institutions (such as the IRS) to give significant benefits including health, life, disability and dental insurance, tax relief, bereavement and dependent care leave, tuition, use of recreational facilities, and purchase discounts on everything from memberships at the local Y to airline tickets only to those in conventional heterosexual families. Although employee benefits are sometimes referred to as "fringe" benefits, they, in fact, make up a hefty portion of compensation. As such, married people are paid more than their nonmarried counterparts. Whether or not favoring the institution of marriage is justified, there remains the problem that those in heterosexual relationships at least have the option (indeed, the right) to marry, whereas lesbians and gay men in relationships do not (at least in the United States.) Although I find monetary and benefit arguments convincing, what follows is a discussion of other types of considerations—legal, historical, ethical, and psychological—that are relevant to the issue of gay marriage. Of these, I find the so-called psychological ones most persuasive. Moreover, since some benefits can be gained by domestic partnership plans, the question of the comparative merits of marriage and domestic partnership needs to be addressed. Legal ArgumentsAlthough I will not dwell on the subject of law, a May 1993 Hawaii Supreme Court decision described by the Lambda Legal Defense and Education Fund as "astonishing" and possibly opening the door to gay marriage is worthy of mention. In Baehr v. Lewin, the first same-sex marriage case to reach a State Supreme Court in twenty years, the Hawaii Supreme Court held that "denying marriage licenses to same-sex couples appears to violate the State constitutional guarantee of equal protection on the basis of sex." Overturning a lower court decision, the Hawaii Supreme Court sent the issue back for a trial at which the state must show compelling reasons for its discriminatory policy. According to Lambda, the Hawaii court refused to be satisfied with the "tortured and conclusory sophistry" of past court hearings on gay marriage and rejected the "tautological and circular nature" of the state's arguments that same-sex couples cannot marry because marriage is inherently for opposite-sex couples. Indeed, the argument from definition cited so recently in the Hawaii case has been around for a long time. In 1971, the Minnesota Supreme Court defined marriage as "a union of man and woman…" and in 1974, two men were denied a marriage license "because of the nature of marriage itself." As Richard Mohr puts it so nicely, "the courts [have held] that gay access to marriage must be a form of grand theft." The charge, says Mohr, is "theft of essence." "….[S]traights wouldn't really be married," he says, "if gays were… the meaning of marriage would be revised beyond recognition if gays could marry…." Similar claims about the concept of "family" are commonplace in right-wing rhetoric today; it is said that so-called true families will be undermined if the concept of family is extended to include lesbian and gay couples. Other possibilities for legal argument include privacy rights and Kenneth Karst's interesting suggestion that the Constitutional freedom of intimate association "… extends to homosexual associations…." These ideas I simply mention, concluding my remarks on legal reasoning by noting the importance of a 1967 Supreme court case, Loving v. Virginia, which established the right to marry as a fundamental legal right. Loving overturned laws against interracial marriage in the United States. Presumably one can make an equal protection argument to the effect that even as the government cannot restrict choice of a marital partner by insisting on a particular race, so the government cannot restrict such a choice on the basis of sex. Of course, such an argument would only work in a state like Hawaii where the category of sex is constitutionally protected from discrimination. In sum, what is new on the legal scene is that gay advocates of gay marriage are making serious arguments that are at long last being taken seriously. Queer Vs. Straight: Historical ArgumentsAs the title of a recent article conveys, however, "Some Gays Aren't Wedded to the Idea of Same-Sex Marriage." Journalist Anna Quindlen expands on this issue when she says, "Gay marriage is a radical notion for straight people and a conservative notion for gay ones. After years of being sledgehammered by society, some gay men and [lesbians] are deeply suspicious of participating in an institution that seems to have ‘straight world’ written all over it." Queer things—queer theory, Queer Nation, the protest chant, "we're here, we're queer, we're fabulous, get used to us"—assume that respect for distinctiveness, an opportunity to pursue a life that is "not straight" is what is wanted. While some traditionalists have called same-sex marriage a slap in the face of tradition and some queer theorists have repudiated the institution of marriage as not queer, both may have reason to pause. If Yale historian John Boswell is right, Christian marriage rites between same-sex partners date back to the fourth century, earlier than the widespread performance of heterosexual ceremonies in the eleventh century. Boswell claims to have found gay marriage rites in liturgical manuals and early legal documents that constitute clear evidence that "…gay unions were comparable to heterosexual marriage." Both men and women were married using these rites, though evidence for lesbian unions is not as geographically widespread nor as ancient," Boswell says. He theorizes that "gay marriage rites… appear to have started as a religious ceremony and were based principally on love… includ[ing] an erotic dimension." He contrasts this history with heterosexual marriage which he says started as a civil ceremony with property exchange and later, when appropriated by the church, emphasized progeny and worldly success. So, it appears that queer theorists could claim or reclaim an institution that is part of their history. Indeed, the good history—the part about love and eroticism—is queer. Equality, Justice, LiberationWhether being able to marry is a desirable political goal is a question pretty much outside of law and history. At the least, it is a question that requires ethical analysis of matters such as equality, justice, oppression, and dignity. Attorney Paula Ettelbrick, who doubts that marriage is the path to liberation for anyone, argues against lesbian and gay marriages on the grounds that they will not alter the elitist character of marriage, that they will at best "minimally transform" the oppressive character of marriage by "diluting its patriarchal dynamic," and that they will not transform society or bring about a just world. On the subject of a just world, Ettelbrick says,
Of course, allowing lesbians and gay men to marry will not address the issue of decent health care. Why, one might (indeed, should) ask, must one be employed by a company or an institution of a certain size or be married to someone who is in order to get health insurance? Presumably, in a just world, folks could get health care because they are valuable. Ettelbrick is absolutely correct in her view about the notions of "equality" or "rights" or "equal rights" when she says, "A pure ‘rights’ analysis often fails to incorporate a broader understanding of the underlying inequities that operate to deny justice to a fuller range of people and groups." Despite her claim that rights and justice should be combined, she goes on to argue that gay marriage will gain rights for a few, will make some lesbians and gays "insiders," but will not correct the imbalance of power between the married and the nonmarried. Thus, "justice would not be gained." One answer to Ettelbrick is that she herself has put her finger on the way equality arguments usually work. They work on a limited scale. They do not do big jobs such as bring about a just society. As Mary Midgley puts it so clearly,
Ettelbrick least understands the limited and painfully slow way that equality arguments normally work when she suggests that "… more marginal members of the lesbian and gay community (women, people of color, working class and poor) are less likely [than those more acceptable to the mainstream] to see marriage as having relevance to our struggles for survival." The fact that achieving the right to marry will not benefit everyone or everyone equally or solve all the world's problems is not an argument against it. What good, asks Ettelbrick, "… is the affirmation of our relationships (that is, marital relationships) if we are rejected as women, blacks, or working class?" The answer to the question, "What good is a job in philosophy if I am discredited as a woman?" is "A lot." Moreover, the exclusion of lesbian relationships from legal recognition directly affects survival issues that cut across class and race. As attorney Ruthann Robson notes, "…a member of a lesbian couple who becomes incapacitated can be controlled by a person determined in accordance with relationships recognized under the rule of law, such as the father who does not believe she is a lesbian, the brother who abused her, or the husband she has not seen for twenty years but never divorced." The recent long and well-publicized estrangement between partners Karen Thompson and Sharon Kowalski (after a car accident which left Kowalski partially paralyzed, her father assumed her guardianship and denied Thompson even any visitation rights) is a textbook example of Robson's point. Ettelbrick dismisses the importance of equality not only because it is of more use to those "… closer to the norm or to power…," but also because "… the concept of equality… only supports sameness." She continues: "The moment we argue… that we should be treated as equals because we are really just like married couples and hold the same values to be true, we… begin the dangerous process of silencing our different voices." I have argued elsewhere against the assumption that equality is similarity. In brief, whether or not differences are relevant depends on what kind of equality one is talking about. If one is talking about equal opportunity, then differences should be ignored, however, if one is talking about equal representation, differences are important. Even if equality did entail similarity, sameness is not always bad. Of course, sometimes sameness is bad, and that is part of Ettelbrick's worry. She says, "[Lesbians and gay men] end up mimicking all that is bad about the institution of marriage in our effort to appear to be the same as straight couples." Others who disagree with Ettelbrick think that the participation of lesbians and gay men in the institution of marriage will alter the institution for the better. For example, Thomas Stoddard says, "… marriage may be unattractive and even oppressive as it is currently structured and practiced, but enlarging [it] to embrace same-sex couples would necessarily transform it into something new." Susan Moller Okin in her recent book Justice, Gender and the Family certainly makes a strong case against what she calls gender-structured marriage, thereby tempting others to suggest that an alternative, especially an alternative that is not gender-structured, has to to be better. Marriage and the family as currently practiced in our society, Okin says, "… constitute the pivot of a… system of gender that renders women vulnerable to dependency, exploitation, and abuse." The conventional family, she says, "is the linchpin of gender"; and gendered relationships, private and public, are thoroughly unjust. Martha Nussbaum in her review of Okin's book says, "[Okin] plainly has a strong preference for the nuclear family in something like its modern Western form…. But she never tells us what benefits she believes the modern Western family provides, or why, in view of the many alternatives that have been conceived, she still prefers the pattern that has proven, as she herself demonstrates, so resistant to reform in the name of justice." If same-sex couples could marry, says Nan Hunter,
Unfortunately, Hunter does not answer this question. As we have seen, Thomas Stoddard is hopeful, Paula Ettelbrick is doubtful, and Martha Nussbaum wants to try something new because heterosexual marriage and the nuclear family are unjust institutions. I would not rest a case for the legalization of lesbian and gay marriage on the possibility that lesbians and gay men might improve the institution of marriage, for transformative values may not come about. Nonetheless, I am with Nussbaum here. We ought to pull the pin and see what happens. However, at the least arguments against lesbian and gay marriages based on the oppressive character of marriage should be rejected if the oppressive character referred to is due to the currently accepted gender requirements of marriage. This type of argument, exemplified in the following remarks by Ruthann Robson and S. E. Valentine, is widespread in lesbian writings: "Underlying the lesbian critique of marriage is the gendered perspective of marriage developed by feminists…. Marriage has remained interwoven with both the development and the perpetuation of patriarchy and women's status within the patriarchy." Even if the oppressive nature of marriage historically did count as a reason for devaluing marriage per se, and therefore gay marriage, it still could be argued that lesbians and gay men should have the right to marry. It is perfectly coherent to assert that lesbians and gay men should have the option to marry without claiming a necessary value for marriage, even as one can coherently claim that lesbians and gay men should have the option to serve in the military without valuing the military. Paula Ettelbrick has one last formulation of her anti-equality argument. She says the idea of marriage is inconsistent with the goal of gay liberation which is to recognize the legitimacy of many different kinds of relationships. Interestingly, she favors domestic partnership plans which, she argues, better accomplish this goal. Such plans—on the part of municipalities and employers —almost universally define domestic partners to include lesbian and gay couples as well as unmarried heterosexual partners and extend to them some of the rights accorded to married couples. The qualifications for benefits approximate the qualifications for marriage, although in many instances they are more stringent. For example, domestic partnership requires couples to give evidence of commitment, whereas marriage does not. [I]n Ettelbrick's view, marriage is a "two-tier system of the ‘haves’ and the ‘have-nots,’ " and same-sex marriage simply perpetuates "the elevation of married relationships and of ‘couples’ in general… further eclipsing other relationships of choice." Domestic partnership plans, on the other hand, "validate nonmarital relationships," thereby contributing to the goal mentioned above of recognizing many different kinds of relationships. It does seem that the idea of domestic partnership is more inclusive of diverse relationships than is marriage, although domestic partnership does not abolish the privileging of some relationships. Sisters who are really sisters and not closeted lesbians posing as sisters could get minimal benefits if they set up a household and are financially interdependent. Kinship ArgumentsDespite the attractive potential of registered partnerships, I think a separate and compelling argument can be made for lesbian and gay marriages. Although lesbians and gay men have made some progress in the area of individual rights in the United States, until very recently there has been an almost total nonrecognition of gay families. A chapter title of a recent book illustrates the exile of gays from kinship: "Is Straight to Gay as Family Is to No Family?" And Justice White, speaking for the Supreme Court's majority view that homosexual sex between consenting adults in their own bedroom is not protected by the right to privacy, said, in the Bowers v. Hardwick decision in 1986, "No connection between family, marriage, or procreation on the one hand and homosexual activity on the other has been demonstrated." The right to privacy in Bowers protects only marital privacy. Gay people were not seen by Justice White as being in relationships. Lesbians and gay men were not visible to him as couples, partners, families, kin. Had the Court interpreted the right to privacy as a right to sexual autonomy, gay people might have been seen, for all the Court had to be able to see was individuals who desired autonomy and who had some kind of a sexual life. But when the Court said the right to privacy is the right to marital privacy, then they saw no connection between marriage and gay people. A legal system or an ethical system based on principle will not be of any use to lesbians and gay men if they are not seen as the sorts of folks to whom these principles can apply. Worse yet, think about an ethic based on sentiment. Take, for example, Mary Midgley's view: those nearest to us have special claims—claims which diminish in proportion to distance, either physical or social. Fortunately, Midgley says that those most distant need not always come at the end of the queue. Unfortunately, priority rankings among various kinds of claims are determined by the cultural maps worked out by individual societies, and nearness and kinship are real and important factors in our psychological makeup. The psychology presented here seems right to me. I care more about Morgan, my Maine Coon cat, than I do about the child I don't know who lives six blocks down the street. These feelings I have really matter, however much those folks who believe in universalizing ethical principles say that physical and social distance should not matter. However, appealing to sentiment as a way of justifying behavior as ethical can be as dangerous as it is comforting. It is, of course, comforting to hear that those folks one already cares about are just the ones that one ought to care about (or ought to care most about). Such a psychology explains, at least in part, why ethical views based on sentiment have not been applied positively to lesbians and gay men who are perceived as strangers and not as kin in our society. One would expect lesbians and gay men to get a better deal from ethics based on principle, but arguments based on principle often do not work for gay people—evidenced by the 1986 Bowers case. A more recent example is the debate over Colorado Amendment 2 which illustrates how all civil rights of lesbians and gay men can be jeopardized because lesbians and gay men are not perceived as kin or as having important relationships. In July 1993, the state supreme court ruled that the voter initiative to outlaw gay rights laws must prove a compelling state interest in order to meet constitutional standards. The state's attorney general argued that "the State's desire to promote ‘family values’ provide[s] such a compelling interest." Amendment 2 was declared unconstitutional by a district court judge on December 13, 1993, on the grounds that it violated equal protection by usurping "the fundamental right of an identifiable group to participate in the political process," and it may be that the Colorado Supreme Court and the United States Supreme Court will continue in this lead. Nevertheless, the fact that anyone would offer "family values" as a good reason for the denial of equal rights is a measure of just how far lesbians and gay men are from being viewed as kin in our society. As one California court put it, in rejecting a similar initiative in Riverside, California, "All that is lacking is a sack of stones for throwing." In short, moral arguments based on existing sentiment will not work for gay people; arguments based on principle should work but often do not, in part because sentiment plays a role in even principled ethics and law. Until current sentiments in our society are changed, lesbians and gay men will not be able to expect that ethical (and legal) principles will be applied fairly to them. Thus, it is important for the sake of creating new sentiments to press for gay marriage so that lesbians and gay men can become visible as couples, partners, families, and kin. Pressing for registered partnerships—or what some have called gay near-marriage—may not do the job. Those folks who in 1986 could not even imagine lesbians and gay men in relationships need to know that many lesbians and gay men—to quote the Supreme Court—view their relationships as "noble" and "intimate to the degree of being sacred." ConclusionIn sum, I have raised the following issues: Married people are paid more than their nonmarried counterparts, while the possibility of choice regarding whether or not to marry has not been extended to lesbians and gay men. Marriage has been rejected as an undesirable political goal on the grounds that it is not queer, presumably meaning to a degree that marriage is not part of lesbian and gay history. But John Boswell's new discoveries of historical evidence indicate that marriage is in a very important sense queer. I have argued that the pursuit of equality should not be abandoned simply because it is often compatible with injustice. Nor should equality be discarded because it supposedly means "sameness" and sameness is bad. I have suggested that our assessment of the comparative merits of marriage and domestic partnership is to some extent a reflection of the respective values we place on equality and diversity. Although I have expressed my doubts about the transformative power of same-sex marriage, it seems to me that objections to gay marriage based on the gender structure of heterosexual marriage are misplaced. Lastly, I have argued that Americans have been allowed for too long to view lesbians and gay men only as individuals, i.e., not in relationships and as strangers, i.e., not as kin. I think that gay marriage needs to be on the political agenda for the sake of gaining a certain level of social awareness and acceptance of serious lesbian and gay relationships. I do not worry, as do some queer theorists, that pursuing a goal such as marriage will result in assimilation into invisibility or as Ettelbrick puts it, "[let us] fade into the woodwork." I think it is a far greater worry that the current invisibility as family is threatening to destroy any kind of a decent life at all for lesbians and gay men in the United States. From Christine Pierce, "Gay Marriage," Journal of Social Philosophy, vol. 26, no. 2 (Fall 1995). Copyright © 1995 by Journal of Social Philosophy. Reprinted by permission. Notes omitted. NORobert H. Knight How Domestic Partnerships and "Gay Marriage" Threaten the FamilyFor several years, homosexual activists have promoted the extension of marital benefits to same-sex couples (and, in some cases, unmarried heterosexual couples) in corporations and in the law. This practice, called "domestic partnerships" is billed as an extension of tolerance and civil rights, but would actually undermine the institutions of marriage and family. So, too, is the drive to confer actual marital status on same-sex relationships through the legalization of so-called gay marriage. Policies and laws that confer partner benefits or marital status on same-sex couples should be opposed because they:
Furthermore, the drive for homosexual status is undergirded by faulty assertions of scientifically based findings, such as the now-discredited, Kinsey-derived 10 percent estimate of homosexuality in the population; the media-touted but unproven "genetic link" to homosexual behavior; and the deliberate misinterpretation of key psychological studies about homosexuality. A Growing CampaignAcross America, cities, corporations and universities are being lobbied or intimidated into conferring marital benefits on same-sex couples.
The Homosexual AgendaWhy is all this happening right now? It seems like only yesterday that homosexual activists wanted only "tolerance," demanding no special rights to compete with the prevailing moral order. But now, activists are on the verge of actually changing the definitions of marriage and family. Homosexual activist Michelangelo Signorile speaks with a candor not found in most media portrayals of the issue. Discussing ways to advance homosexuality, he urges activists:
Signorile is right about the subversive nature of the goal of "gay marriage," but homosexuals would not have to go to any lengths to "redefine" marriage once granted that status. The very act of obtaining recognition for same-sex relationships on a par with marriage would transform the notion of "family" entirely. While Signorile might be dismissed as just one voice, his views are in keeping with those of other high-profile homosexual activists. Franklin Kameny, a Washington, D.C.-based leader of the homosexual rights movement for three decades, has this to say about families:
Thomas Stoddard, leader of the drive to lift the military's ban on homosexuals and former president of the Lambda Legal Defense Fund, now known as the Lambda Legal Defense and Education Fund, a homosexual legal foundation, sees marriage as the prime vehicle to advance societal acceptance of homosexuality:
Lesbian activist Paula Ettelbrick, former legal director of the Lambda Legal Defense and Education Fund and now policy director for the National Center for Lesbian Rights, supports the "right" of homosexuals to marry, but opposes marriage as oppressive in and of itself. She says homosexual marriage does not go far enough to transform society:
Marriage, Domestic Partnerships and the LawNo jurisdictional unit in the United States—town, city, or state—recognizes same-sex couples as "married." Protections favoring marriage are built into the law and the culture because of the central importance of the family unit as the building block of civilization. In 1888, the U.S. Supreme Court described marriage "as creating the most important relation in life, as having more to do with the morals and civilization of a people than any other institution." However, some jurisdictions are moving toward redefining the family to include same-sex relationships, and there is a movement within the legal community to overhaul the definitions of marriage and family. A note in the Harvard Law Review in 1991 advocated replacing the formal definition of family with an elastic standard based "mainly on the strength or duration of emotional bonds," regardless of sexual orientation. The note recommends redefining the family through "domestic partner" or family "registration" statutes that go beyond the limited benefits now conferred by existing domestic partnership laws so as to "achieve parity" between marriage and other relationships. In 1990, San Francisco Mayor Art Agnos appointed lesbian activist Roberta Achtenberg (currently assistant secretary of the U.S. Department of Housing and Urban Development) to chair the Mayor's Task Force on Family Policy. The final report of the task force defines the family this way:
In this definition, which could reasonably be described as a formulation by homosexual activists, marriage is no longer the foundation for families but secondary to "strong social and emotional bonds." This definition is so vague that multiple-partner unions are not excluded, nor any imaginable combination of persons, including a fishing boat crew. The whole point is to demote marriage to a level with all other conceivable relationships. The Task Force's definition of "domestic partners" is almost as vague, but limits the relationship to two partners: "Two people who have chosen to share all aspects of each other's lives in an intimate and committed relationship of mutual caring and love." The District of Columbia City Council legislation defines "domestic partner" as "a person with whom an individual maintains a committed relationship," which is defined as "a familial relationship between two individuals characterized by mutual caring and the sharing of a mutual residence." One of the partners must be a city employee "at least eighteen years old and is competent to contract"; "not be related by blood closer than would prohibit marriage in the District"; "be the sole domestic partner of the other person"; and "not be married." Applicants would qualify by signing a "declaration of domestic partnership" to be filed with the mayor, and which could be terminated by filing a termination statement with the mayor, which takes effect six months after filing. After that, another partner could be registered. Benefits include granting of sick leave, health insurance, and funeral leave. Domestic partnership laws have been imposed or enacted by governmental agencies without much say from the public. When citizens do get a chance to give their views, they reject the notion. In May 1994, the city of Austin, Texas, became the first U.S. jurisdiction to overturn an existing domestic partners law when the citizenry voted 62 percent to 38 percent to undo what the city council had enacted. In other jurisdictions, notably Cincinnati, Tampa, and Lewiston, Maine, voters overwhelmingly voted to roll back homosexual rights laws, which are the foundation of the claim for the "right" of domestic partnership status. Even in liberal San Francisco, voters rejected domestic partnerships in 1991, although the policy was later approved. In the courts, the issue has returned repeatedly since 1976, when the famous "palimony" case of Marvin v. Marvin held that a property agreement between two unmarried adults who live together and engage in sex is enforceable in a court of law. In most cases, judges, with some notable exceptions, have rejected claims made by homosexual partners to marital-type recognition concerning property allocation and custody of children. In September 1993, a Virginia judge awarded custody of a boy to his grandmother, removing him from his mother's lesbian household. An appeals court overturned that ruling, however, and the case is making its way toward the Supreme Court. In California, a lesbian lost her bid to enforce a "co-parenting" agreement with a biological mother after the couple terminated their relationship. In West Virginia, the state supreme court in July 1993 granted a lesbian mother a stay of an order to remand custody of her children to their father. A circuit court had issued the order, citing as cause that the mother had moved in with her lesbian companion. HawaiiIn May 1993, the Hawaiian Supreme Court ruled three to one that the state's exclusion of same-sex couples from marital status may be unconstitutional because it amounts to sex discrimination. Marriage is a civil right, the court said, and when the state says who may marry (and by implication, who may not), it violates the guarantee of equal protection under the law. The court invited the state to offer compelling reasons why marriage should be limited to opposite-sex couples. In April 1994, the state legislature overwhelmingly passed a bill defining marriage in the traditional sense and defending it as the time-honored foundation for procreating and raising children. But many observers expect the liberal Hawaiian court to mandate "gay marriage." Also pending in Hawaii is a domestic partnership bill, which State Senator Ann Kobayashi, a homosexual rights supporter, praised as "a foot in the door" toward legalization of same-sex "marriage." Homosexual activists, including those in Hawaii, often compare their quest for marital status with an interracial couple's legal victory in Loving v. Virginia. In that 1967 case, the Supreme Court struck down laws preventing marriage between people of different races as violating the equal protection and due process clauses of the Fourteenth Amendment to the Constitution. But the court never came close to redefining the institution of marriage itself, which is what would have to occur for same-sex relationships to be accorded marital status. The false equation of a benign, nonbehavioral characteristic such as skin color with an orientation based precisely on behavior finds no support within the law. In the 1970s, homosexuals unsuccessfully challenged marriage laws in Minnesota, Kentucky, and Washington state. In the Minnesota case, the state supreme court noted, "The institution of marriage as a union of man and woman, uniquely involving the procreating and rearing of children within a family, is as old as the book of Genesis.—This historic institution is more deeply founded than the asserted contemporary concept of marriage and societal interests for which petitioners contend." Only relationships have not been accorded the same status as marriage because they do not contribute in the same way to a community. To put it bluntly, societies can get along quite well without homosexual relationships, but no society can survive without heterosexual marriages and families. In fact, because the term "heterosexual marriage" is redundant, the term "marriage" will mean in this paper what it has always meant: the social, legal, and spiritual union of a man and a woman. "Gay marriage" is an oxymoron, an ideological invention designed to appropriate the moral capital of marriage and family toward the goal of government-enforced acceptance of homosexuality. The Importance of Definition
To place domestic partner relationships on a par with marriage denigrates the marital imperative. But to describe such relationships as "marriage" destroys the definition of marriage altogether. When the meaning of a word becomes more inclusive, the exclusivity that it previously defined is lost. For instance, if the state of Hawaii decided to extend the famous—and exclusive—"Maui onion" appellation to all onions grown in Hawaii, the term "Maui onion" would lose its original meaning as a specific thing. Consumers would lack confidence in buying a bag of "Maui onions" if all onions could be labeled as such. The same goes for any brand name or even wine from Bordeaux as opposed to wine from California. Likewise, if "marriage" in Hawaii ceases to be the term used solely for the social, legal and spiritual bonding of a man and a woman, the term "marriage" becomes useless. Other states rightly could challenge Hawaii's marriage licenses as meaning something entirely different from what is meant in Pennsylvania or California. Homosexual activist Tom Stoddard acknowledges that "enlarging the concept to embrace same-sex couples would necessarily transform it into something new…. Extending the right to marry to gay people—that is, abolishing the traditional gender requirements of marriage—can be one of the means, perhaps the principal one, through which the institution divests itself of the sexist trappings of the past." In other words, while many homosexual spokesmen say they want only to be left alone to enjoy the benefits of marriage, Stoddard rightly sees the expanded definition as a way of attacking the institution itself. Once the "one man, one woman" definition is abandoned, there is no logical reason for limiting it to two people or even to people. Back to the Maui onion example: Hawaii's garlic growers could demand that the exclusive use of the term "Maui onions" gives onion farmers an advantage, and is therefore "discrimination." Of course, garlic growers could qualify for the "Maui onion" label by growing onions in Maui under the Maui requirements. Likewise, homosexuals are not denied the right to marry. Like anybody else, they can qualify for the appellation of marriage by fulfilling its requirements. But they cannot call same-sex relationships "marriage" since they are lacking a basic requirement; they are missing an entire sex. The joining of the two sexes in permanence is the very essence of marriage. Once the "one man, one woman" definition is abandoned, there is no logical reason for limiting "marriage" to two people or even to people. Why not have three partners? Or why not a man and his daughter? Or a man and his dog? The logical reason to extend "marriage" to homosexual couples has nothing to do with marital integrity, but only reflects the fact that homosexuals want the same status regardless of its real meaning. Anything less, they say, is a denial of human rights. If so, then a threesome or a foursome seeking marital status can similarly claim that their sexual proclivities must be recognized by society and the law as the equal of marriage or they are facing discrimination. Destroying definitions does enormous damage not only to marriage but to the idea of truth. Calling two lesbians a "marriage" is telling a lie, and official recognition of this lie breeds the sort of cynicism found in totalitarian societies, where lies are common currency. The Myth of Homosexual MonogamyIn 1992, organizers of the homosexuals' 1993 March on Washington met in Texas to draft a platform of demands. Known as "the Texas platform," it was later toned down to make it more palatable to a mass audience. The original section on "family," however, is revealing as to the intentions of the movement. In addition to Demand No. 40, "the recognition and legal protection of all forms of family structures," the writers called for Demand No. 45, "legalization of same-sex marriages," and Demand No. 46, "legalization of multiple partner unions." An enormous body of research indicates that monogamy is not the norm for the average homosexual. But even when it is, the result is not necessarily healthier behavior. A study published in the journal AIDS found that men in steady relationships practiced more anal intercourse and oral-anal intercourse than those without a steady partner. In other words, the exclusivity of the relationship did not diminish the incidence of unhealthy behavior that is the essence of homosexual activity. Curbing promiscuity would help curb the spread of AIDS and the many other sexually transmitted diseases that are found disproportionately among homosexuals, but there is little evidence that "monogamous" homosexual relationships function that way. An English study also published in the journal AIDS found that most "unsafe" sex acts occur in steady relationships. In April 1994, the homosexual-oriented magazine Genre examined current practices among male homosexuals who live with partners. The author concluded that the most successful relationships are possible largely because the partners have "outside affairs." An excerpt:
According to the Genre article, in 1993, David P. McWhirter and Andrew M. Mattison, authors of The Male Couple, "reported that in a study of 156 males in loving relationships lasting from one to thirty-seven years, only seven couples considered themselves to have been consistently monogamous. Most understood outside sex, and even outside love, as the norm. ‘It should be recognized that what has survival values in a heterosexual context may be destructive in a homosexual context,’ argues a couple in the McWhirter and Mattison study. They add, ‘Life-enhancing mechanisms used by heterosexual men and women should not necessarily be used as a standard by which to judge the degree of a homosexual's adjustment.’ In other words, to adapt heterosexual models to homosexual relations is more than just foolhardy; it's an act of oppression." Former homosexual William Aaron explains why "monogamy" has a different meaning among homosexuals:
Sexual Revolution: Leveler of CivilityAs the research of the late Harvard sociologist Pitirim Sorokin reveals, no society has loosened sexual morality outside of marriage and survived. Analyzing studies of cultures spanning several thousand years on several continents, Sorokin found that virtually all political revolutions that brought about societal collapse were preceded by sexual revolutions in which marriage and family were no longer accorded premier status. To put it another way, as marriage and family ties disintegrated, the social restraints learned in families also disintegrated. Chaos results, and chaos ushers in tyrants who promise to restore order by any means, Sorokin notes. Self-governing people require a robust culture founded on marriage and family, which nurture the qualities that permit self-rule: deferred gratification, self-sacrifice, respect for kinship and law, and property rights. These qualities are founded upon sexual restraint, which permits people to pursue longterm interests, such as procreating and raising the next generation, and security benefits for one's children. According sex outside marriage the same protections and status as the marital bond would destroy traditional sexual morality, not merely expand it. One can no more "expand" a definition or moral principle than one can continually expand a yardstick and still use it as a reliable measure. The drive to delegitimize marriage by hijacking its status for other relationships, including unmarried opposite-sex couples, is being funded and directed by the homosexual rights movement. Lawsuits filed against landlords unwilling to rent to unmarried couples out of religious conviction are largely the work of the Lambda Legal Defense and Education Fund, the American Civil Liberties Union's homosexual legal project, and other homosexual activist organizations intent on using government power to force acceptance of their agenda. If the rights of landlords to refuse to aid and abet what they consider sinful behavior are abridged, it is a small legal step to force landlords, even in households with children, to rent to anyone regardless of sexual orientation. In this way, freedom for homosexuals would be expanded, but at the expense of the freedom of those who find homosexuality destructive, immoral, and unhealthy. So far, the courts have rejected the claims of homosexuals and unmarried couples in this regard. In a series of recent cases, the courts have ruled that landlords cannot be compelled by law to betray their religious objections to fornication. In May 1994, a California appeals court ruled that the California Fair Employment and Housing Commission erred in fining a sixty-one-year-old landlady, Evelyn Smith, $954 for refusing to rent a duplex to an unmarried couple. The agency had also required Mrs. Smith to post a sign saying she would not discriminate against unmarried people. The three-judge panel found that the order "penalizes [Mrs. Smith] for her religious belief that fornication and its knowing facilitation are sinful." The Boston-based Gay and Lesbian Advocates and Defenders had filed an amicus brief in the case, and Lambda Legal Defense Fund senior staff attorney Evan Wolfson denounced the verdict, saying that religious beliefs should retreat "when it comes to public good, such as public housing and access to public housing." In saying this, Mr. Wolfson ignored the distinction between government-run "public housing" and private property, as owned by Mrs. Smith. Courts also have upheld the rights of landlords in Massachusetts, Minnesota, Illinois, and in other California jurisdictions. The Importance of Family TiesFor thousands of years, in all successful cultures, homosexuality has been discouraged through social norms and legal prohibition. Cultures have always found it necessary to encourage new marriages and protect existent marriages by extending rewards and privileges for this productive behavior and by extending sanctions and stigmas to unproductive behavior, such as promiscuous sex and homosexual sex. Research and common sense show that the health of any given society depends largely on the number of intact, mom-and-dad families. People living in other arrangements benefit from the social order derived from the marital order. Marriage-based kinship is essential to stability and continuity. A man is more apt to sacrifice himself to help a son-in-law than some unrelated man (or woman) living with his daughter. Kinship entails mutual obligations and a commitment to the future of the community. Homosexual relationships are negation of the ties that bind—the continuation of kinship through procreation of children. To accord same-sex relationships the same status as a marriage is to accord them a value that they cannot possibly have. Marriages benefit more than the two people involved, or even the children that are created. Their influence reaches children living nearby, as young minds seek out role models. The stability they bring to a community benefits all. And the best chance for having a successful, strong marriage is to grow up in a family with a strong marriage as its foundation. This does not mean that people in divorced families or single-parent homes are unable to achieve their own strong family, just that it is more difficult since their role models did not reflect the mom-and-dad family on a daily, longterm basis. A homosexual household compounds the problem by not only lacking one entire sex in the household's foundational relationship but by presenting an aberrant form of sexuality as something "normal." Protecting ChildrenA major reason for discouraging societal recognition of homosexual relationships on the partnership level or as "marriages" is the boost such arrangements give to the concept of homosexual adoption of children. Currently, only two states, Florida and New Hampshire, have laws preventing homosexuals from adopting children. This is because it has been considered unthinkable and unnecessary, not because people favor adoption of children by homosexuals. Polls over the past two decades indicate strong societal disapproval of homosexual adoptions. But approval of same-sex relationships undermines much of the moral argument against same-sex couples adopting children. If two same-sex people are seen as the equivalent of husband and wife, it becomes easier for homosexuals to argue, falsely, that a same-sex couple provides the same environment for raising children. Breaking More WindowsThe purpose of marriage is to stabilize sexuality and to provide the best environment in which to procreate and raise children. Sex outside marriage traditionally has been discouraged not only because of the dangers of sexually transmitted diseases and out-of-wedlock births but also because of the dangers it poses to stable families. Crime scholar James Q. Wilson describes "the broken window effect," in which failure to curb breaches in civil order leads to more breaches. He noticed that a building in a tough part of a city had all its windows intact, unlike others around it. After one window was broken, however, all the other windows soon met the same fate. Likewise, if a culture does not discourage extramarital sexuality, the stable marriages are threatened because of the erosion of cultural, social, and, finally, legal support. Plagued by a high rate of divorce, teen pregnancies and STD epidemics, America can only unravel the social fabric further by legitimizing homosexuality. Conclusion"Domestic partnerships" and "gay marriages" are being advocated as an extension of tolerance and as a matter of civil rights, but these are really wedges designed to overturn traditional sexual morality, as is acknowledged by many homosexual activists themselves. There is little or no support within the law for such formulations, and there is no U.S. jurisdiction that recognizes homosexual "marriage." Voters and corporations should resist the demands made upon them to equate family life with behavior that has been deemed unhealthy, immoral, and destructive to individuals and societies in cultures the world over. From Robert H. Knight, "How Domestic Partnerships and ‘Gay Marriage’ Threaten the Family," Insight (June 1994). Copyright © 1994 by The Family Research Council, 801 G Street, NW, Washington, DC 20001. Reprinted by permission. Notes omitted. POSTSCRIPTShould Society Recognize Gay Marriages?In 1994 the Union of American Hebrew Congregations, a Reform Jewish group, called on government at all levels to provide the means of legally acknowledging "committed lesbian and gay partnerships." In March 1996 another liberal Reform group, the Central Conference of American Rabbis, voted to support civil marriage for lesbian and gay men and to oppose governmental efforts to bar such unions. The Union of Orthodox Rabbis of the United States and Canada quickly responded by announcing its opposition: "We cannot give any recognition [to same-sex marriages]. This is another breakdown of the family unit, which only leads, of course, to the dissolution of the Jewish people." A similar debate exists among Christians. Many Episcopalian, United Church of Christ (Congregational), Unitarian/Universalist, Presbyterian, Methodist, and other Protestant ministers, along with some Catholic priests, will witness and bless gay unions. Others in the same churches find gay unions totally unacceptable. In 1996 and 1997 several church-affiliated and private universities had heated debates about whether or not denying gay and lesbian couples requests to be married in campus chapels violated their university's antidiscrimination ban. In mid-1997 the Alabama legislature proposed a bill imposing a fine of $1,000 on any clergy who officiated at a same-sex wedding. In response, the Reverend Troy Perry, founder of the Universal Fellowship of Metropolitan Community Churches, threatened to hold a mass wedding for homosexuals on the steps of the state capital. How should we define and structure marriage for the postindustrial twenty-first century? What is the nature and purpose of marriage today? And what will it be 10 or 20 years from now? Suggested ReadingsK.A. Appiah, "The Marrying Kind," The New York Review (June 20, 1996). R. M. Baird and S. E. Rosenbaum, eds., Same-Sex Marriage: The Moral and Legal Debate (Prometheus Books, 1997). W. N. Eskridge, The Case for Same-Sex Marriage (Free Press, 1996). G. Rotello, "To Have and to Hold: The Case for Gay Marriage," The Nation (June 24, 1996). J. Q. Wilson, "Against Homosexual Marriage," Commentary (March 1996). |
| Previous | Section IV Contents | Next |
|