Same – Sex Marriage Essay, Research Paper


The institution of marriage is highly respected and holds great sentimental value for most societies. However, not all couples are afforded the right to be legally recognized as a married couple. Couples of the same-sex are denied the right to have their marriages be legal in the eyes of the law. Same-sex marriage is an important issue because it deals with a relatively large minority of the United States. Gays and lesbians are rumored to be about ten percent of today’s population. I am just one of the many that fit into this contested minority group. Some people in society feel that I should never be given the opportunity to benefit from a marriage, as an opposite-sex couple will. I feel marriage is my natural born right handed down to me by my constitution. So quickly society forgets that I am a citizen of America as much as anyone else. Whether it is by choice or biologically decided, who a person loves does not determine the amount of rights they are given.

The issue of same-sex marriage is highly controversial and I suspect will remain so for many more years. The issue of same-sex marriage is combined with several contrasted views. These views include morals, family values, religion; and those of equality, constitutionality, and right to privacy. I do not plan to argue for any views which are based merely on opinion, only those views that hold legal precedence. Some believe marriage is a privilege, not a right. This is a misconception. Marriage is very much a civil right and I plan to prove this by using creditable legal resources. The United States Supreme Court has cast down many judgements on the topic of marriage, just as the Constitution affords the right of marriage. The issue should not be dealing with the legalization of same-sex marriages, rather the issue is the recognition of same-sex marriages. Same-sex couples have and will continue to enter into marriage. Couples are being married within the eyes of certain churches already, just not in the eyes of their government.


Historically, marriage has always been between a man and a woman. This is not only the definition in the dictionary, but also the definition the law uses when denying a same-sex couple the right to a recognized civil marriage. The Random House Webster’s Legal Dictionary defines marriage as, “the legal relationship of husband and wife, entered into in conformity with state law and carrying various rights and duties imposed by law” (1996, pp.162). Marriage is considered a separate institution, unique of it’s own. The institution of marriage is a very respected one, and holds much sentimental value for many people. The institution of marriage was based on a patriarchal system, and until recently has remained so over time. Paula Ettlebrick claims that marriage is “steeped in a patriarchal system that looks to ownership, property, and dominance of men over women as its basis” (1997, pp. 164). Marriage originally was created to ensure financial stability and was arranged from early childhood. It was not based on love. Parents would arrange the marriage so that the families would join and prosper from the merger. This is why it was extremely important for the wealthy to marry. Not only was money a basis of marriage, but also reproduction.

Child bearing has always been an important issue associated with marriage. Historically, men joined woman only for the purpose of producing offspring. The thought was that the male legacy must continue through time. This is why men keep their last names and women change theirs. Originally in society, marriage was a privilege most people received, not a right. For a great deal of time society argued civil marriages between same-sex couples could not be honored due to the fact that the couple would not be able to produce children. Society and it’s court system can no longer depend on the argument that marriage can not be without procreation. For if this were the case, many heterosexual marriages could not be acknowledged by the government. This is because many couples choose not to have children or physically can’t reproduce (American Civil Liberties Union, 1998). Through time society’s views on marriage have slowly changed. The concepts of marriage being based on procreation, dowry, and the patriarchal system of marriage in general, have begun to break down.


Today marriage has changed to focus on the legal and economic benefits afforded to married couples. When homosexuals claim that marriage is a civil rights issue, they are referring to the fact that rights in the form of benefits are being denied to them due to their sexual orientation. These rights include the right to be acknowledged within society as a family. Society values those who have formed families of the social stability and productivity such groups provide. A family may be described as a unit of interdependent and interacting persons, related together over time by strong social and emotional bonds (Random House Webster’s Legal Dictionary, 1996). Its central purpose is to create, maintain and promote the social, mental, physical and emotional development, and well being of each of its members. Same-sex couples form the same kind of family structures, but they are excluded from being recognized by the law.

The legal status of marriage rewards the two individuals with substantial economic and practical advantages. The American Civil Liberties Union believes that, “Marriage is a critically important institution because it is the only vehicle our society has for recognizing the existence of primary relationships not defined by blood” (1996, pp. 3). Legal marriage is designed to protect intimacy in the relationship. It does this through offering the rights of medical decision-making, medical insurance, joint tax returns, inheritance of money and property, social security for surviving spouse and dependants, child custody, immunity from testifying against spouse, etc? (American Civil Liberties Union, 1996). It is very much a civil right issue. It is not a matter of special rights to ask for the same rights that other couples enjoy by law, even by constitutional mandate. Marriage is an institution long recognized by our government under the right to pursue happiness. Denying the right of marriage to any couple, regardless of sex, is unconstitutional.


The Supreme Court of the United States has long recognized that the institution of marriage is one of the rights guaranteed to all Americans by our Constitution. The Court declared this to hold true in the case of Zablocki v. Redhail, were they acknowledged, “Marriage is one of the ‘basic civil rights of man,’ fundamental to our very existence and survival” (1978, pp. 3). The Court has heard many cases involving the issue of marriage, but they have not heard any cases directly involving the issue of same-sex marriage. Therefore, many advocates for the recognition of civil marriage between same-sex couples must rely on general cases of marriage decided by the Court. Opponents of the legalization of same-sex marriage often argue that because gay men and lesbians are not going to spawn children, they do not deserve the rights of marriage.

An extremely important case brought before the Court was that dealing with marital procreation. On June 7, 1965, in the case of Griswold v. Connecticut, the Supreme Court of the United States declared that marriage is not based on procreation. The American Civil Liberties Union, in a Memorandum, briefs the case by stating “[the] right of marital privacy prohibits government from interfering with efforts to actively avoid procreation” (1998, pp. 4). The decision in this case directly throws out the argument that marriage can be defined by procreation. In the case of Cleveland Board of Education v. LaFleur, the Supreme Court said, “This Court has long recognized that freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment” (1974, pp.2). Even though this case primarily deals with state maternity laws, the Court continued to take notice on the importance of marriage and personal choice.

The most significant case referring to marital rights is that of Loving v. Virginia, which dealt with interracial marriages. Up until the decision of the Court, interracial marriage was illegal in many states. The Court found that by denying an interracial couple the fundamental right to marry, the state was denying them equal protection of the laws which is afforded to them by the Fourteenth Amendment (Loving v. Virginia, 1967). Loving v. Virginia was a landmark case in the history of marriage in the United States. The Court declared that marriage was an equal right of all people and did not have room for discrimination (Loving v. Virginia, 1967). As that may be, state’s continue to restrict society in marriage, though it is no longer about skin color, but sex of a person. This is blatantly a civil rights issue. The denial of same-sex marriage is a form of discrimination and which the Court has explicitly stated is unconstitutional.

In Romer v. Evans the Court finally explores the topic of homosexuality. This case primarily dealt with discrimination within a Colorado State Amendment. The Court held that Amendment 2 of Colorado’s Constitution violates the Equal Protection Clause of the Fourteenth Amendment (Romer v. Evans, 1996). The opinion of the Court is as follows, “This disqualification of a class of persons from the right to obtain specific protection from the law is unprecedented and is itself a denial of equal protection in the most literal sense” (Romer v. Evans, 1996, pp. 4). The Court continues on to say that Amendment 2 “is a status-based classification of persons undertaken for it’s own sake, something the Equal Protection Clause does not permit” (Romer v. Evans, 1996, pp. 4). This case is the very basis for the argumentation on recognizing marriage between same-sex couples. Due to the fact that by state’s denying same-sex couple’s the benefits of marriage, they are denying them equal protection of the laws.


We now know that the Supreme Court of the United States has expressed that marriage is a

fundamental right and that when the government passes a law that interferes with marriage, they are infringing upon citizens constitutional rights. Congress has blatantly ignored the Court and approved a bill, the Defense of Marriage Act (DOMA), which allows states to decide whether or not to recognize homosexual marriages (Policy. Com, 1999). The two main purposes of DOMA are to define marriage and to give the states the ability to have their own policy on whether or not the state will recognize same sex marriage (Defense of Marriage Act of 1996). The new definition of marriage by the Federal government now reads as: “the word marriage means only a legal union between one man and one woman as husband and wife, and the word spouse refers only to a person of the opposite sex who is a husband or wife,” (Defense of Marriage Act of 1996, pp. 1). DOMA also states that each state shall have the power over whether they choose to, or not to, recognize same-sex marriages from other state’s (Defense of Marriage Act of 1996).

The Partners Task Force for Gay & Lesbian Couples finds that with the passing of DOMA, same-sex couples are being denied over 1,049 federal laws that are granted by the Federal government through marriage (2000, pp. 1). Basically, what DOMA has done is taken away any Federal protection for gays and lesbians who seek to have their marriages legally recognized. This is obviously a civil rights issue. The United States of America has declared that same-sex civil marriage is not valid in our country, even though our Court’s and our Constitution explicitly say other wise. DOMA is comparable to the Colorado Amendment 2, in that it refers to one specific group of society. Using the facts of the United States Supreme Court in Romer v. Evans, DOMA is a violation of our constitutional rights.

In Article Four, Section One of the Constitution the Full Faith and Credit Clause states, “Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the congress may by general Laws prescribe the manner in which such Acts, Records, and Proceedings shall be proved, and the Effect thereof,” (Kersch, 1996, p.123). What this means is that if a person or group of people, have a record in one state, it is valid in all states. If they receive a license of any kind in one state, it is upheld in the other states as well. It also notes that congress has the right to define the “effect” in which one state’s laws act upon another state (Kersch, 1996). This is not meant to take away all of the state’s rights, just that the state has to present reasons why it will not accept another states laws. DOMA takes away that aspect of the Full Faith and Credit Clause. The normal rule for interstate marriage is to uphold the marriage as long as it is valid where it was originally celebrated (Kersch, 1996). The Full Faith and Credit Clause keeps states from selectively discriminating based on how desirable or obnoxious the other states policy is. “Thus a state could not apply an ostensibly non-content-based marriage evasion statute only to same-sex marriages,” (Kramer, 1997, pp. 1967).

Section One of the Fourteenth Amendment of the Constitution states: ‘…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 the law; nor deny to any person within its jurisdiction the equal protection of the laws.’ This means that a state government cannot make a law which denies someone his or her rights. It is a same-sex couples right to liberty and the pursuit of happiness which is being denied by DOMA.

According to the Full Faith and Credit clause of the Constitution, all of the states must recognize a license valid in one state as valid in theirs (Kersch, 1996). The Defense of Marriage Act negates this, but only in the case of same-sex marriages. DOMA does not proclaim that all marriages are up to the state to value, only ones between homosexuals. This is discrimination pure and simple, which makes this a civil rights issue. If congress made a law stating that states do not have to recognize other state’s marriages involving two people of the same race, there would be an uproar. This is exactly what congress has done, except by way of homosexuals.


All Americans are born with equal rights under the constitution, therefore sexual orientation should not be an exclusion to these rights. However, in many states anti same-sex marriage recognition statutes are being passed. By society voting on and passing the statutes, they are voicing their opinion that they are not ready to recognize marriage between same-sex couples. This is apparent by the growing numbers of states that are adding anti-recognition of same-sex marriages into law. Lynn Bartels, a writer for the Rocky Mountain News, specifies that currently there are thirty-three states that have implemented statutes specifically stating that same-sex marriage will not be honored (2000).

The reason state’s are passing anti-recognition statutes, is due to the fear of other states possibly recognizing same-sex marriages. If this happens then any state without a recognition statute in law would be obligated to honor the marriage. The passage of DOMA triggered off a wide spread of anti-recognition statutes across the state’s. The Federal government now made it legal for state’s to pass such statutes without fear of being sanctioned by the law. The Lambda Legal Defense feels that “these State and Federal anti-marriage bills are unconstitutional, divisive, wrong, and cruel” (2000, pp.1).


The recent blow up of anti recognition statutes and passing of DOMA stems from a court case in Hawaii. In 1990, three Hawaiian couples went to court stating that denying them the right to obtain marriage licenses is discriminatory (Sullivan, 1997). The lower division court in Hawaii ruled in the case of Baehr v. Miike, that denying same-sex couples the right to obtain a marriage license is sex discrimination and violates their civil rights (Sullivan, 1997). Due to the overwhelming opponent response the case was appealed in the Supreme Court of Hawaii (American Civil Liberties Union, 2000). While the Supreme Court of Hawaii was hearing arguments for the case, opponents of same-sex marriage found a way to get an anti recognition statute on the ballot. The state of Hawaii passed the statute and the Court had no alternative but to deny the recognition of same-sex marriages (American Civil Liberties Union, 2000). However, the case in Hawaii still had an enormous impact on many other states.

While the case in Hawaii was in litigation for more than six years, many other states began to panic. The biggest scare to anti-same-sex advocates came in 1998 when the case of Baker v. The State of Vermont was heard by the Vermont Supreme Court (Partners Task Force for Gay and Lesbian Couples, 1999). The argument by the petitioners was the same argument that has always encompassed same-sex marriage. However, the outcome this time was very different. After the Court’s ruling, state after state began joining the ban wagon of anti-recognition statutes, including my home state of Colorado (Newsum, 2000). However, Vermont did not legalize same-sex marriage, they offered an alternative called civil union.

As of December 20, 1999 the state of Vermont has opened the door for same-sex unions (National Gay and Lesbian Task Force, 1999). Basically, Vermont has decided that same-sex couples must be given the same rights as opposite-sex married couples. The Supreme Court of Vermont ruled that denying same-sex couples the same rights and protections as opposite-sex couples is unconstitutional and inhumane (National Gay and Lesbian Task Force, 1999). Therefore, the Court ordered the legislature to draw up a plan that would offer exactly the same benefits and rights to same-sex couples, as opposite-sex couples are afforded. The legislature did as the Court said and decided on the label of civil union. Civil union provides same-sex couples with the same benefits as opposite-sex married couples, such as inheritance rights, tax privileges, medical decisions, and so on (National Gay and Lesbian Task Force, 1999). Vermont issues county licenses to these partners and they are recognized in the eyes of the state.

The passing of civil union required changing over 300 statutes in Vermont (Gender Talk Radio, 2000). Every statute that expressed anything to do with marriage, now also states civil union as well. With civil union, same-sex couples get their protection and benefits, as opposite-sex couples get to keep their marriage word. Bill Lippert, Vermont state representative and vice chair of the house judiciary committee, is the only openly gay member of the state house of representatives and was interviewed by Gender Talk Radio. Lippert was an advocate for same-sex marriage when it was brought in front of the Vermont Court and pushed the committee to incorporate the word ‘marriage’. However, he claims to be happy that benefits would finally be afforded to same-sex couples, even if it isn’t called marriage (Gender Talk Radio, 2000). Even though the state of Vermont recognizes the civil union of same-sex partners, it is still too early to know whether or not other states will recognize the unions.


Vermont is the first to ever legalize marriage benefits to same-sex couples. What society fails to see is that the argument to legalize same-sex marriage is invalid mainly because it is already legal. Each individual person interprets the law differently and may do so. Through my research I believe same-sex marriage is legal due to Supreme Court opinions, Full Faith and Credit Clause, and most importantly our Constitution. It should no longer be an argument on whether same-sex marriage should be legalized, but rather, should it be recognized by the law. Under our constitution, every law abiding citizen must receive equal protection under the law. This means that America can not simply deny rights based on sexual orientation because it violates equal protection.

The Defense of Marriage Act is a violation of equal protection and as such is unconstitutional. According to the Full Faith and Credit clause of the Constitution, all of the states must recognize a license valid in one state as valid in theirs. The United States Supreme Court has made clear that marriage is a fundamental right and that discrimination by classes is unconstitutional. However, as Americans we continue to contradict ourselves through our laws. Our nation was built and has always been based on the fundamental principles of freedom expressed in the Declaration of Independence and through our Constitution.

The opponents of homosexual marriage need to remember what freedom means to America and understand the significance of setting a precedent that denies that freedom. Any African-American should understand the importance of upholding the fundamental beliefs on which America was based. It was these fundamental beliefs that abolished slavery, and called for equal rights. Any woman should understand the importance of upholding these fundamental beliefs. It was these beliefs that have worked toward ending woman?s suffrage. Any parent, any working man, any American, should understand the importance of our fundamental beliefs. Without them, there is a never-endeding list of atrocities that could be committed: cruel and unusual punishment, sweatshop labor, unsafe work standards, unfair work practices, and on and on. To deny any one of our beliefs even once, sets a precedent for them to be denied again and again, to anyone. Without our constitutional rights, America simply would not be the free nation that it is today.



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