Samesex marriage

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Template:FamilyLaw Template:SSM Same-sex marriage is marriage between individuals who are of the same legal or biological sex. It is also called same-gender marriage, gay marriage (favored by proponents, along with just marriage), and homosexual marriage (sometimes favored by opponents). These terms are considered variously liberating, ambiguous, confusing, controversial, constraining, inaccurate, offensive, or loaded, depending on the audience.

For discussion of other forms of civil and religious same-sex unions distinct from marriage, see the articles linked in the pertinent section below.

In the late 1990s and early 2000s, same-sex marriage became a topic of substantial controversy in Western countries. The article below defines same-sex marriage but also presents the arguments for and against the institution.

Terminology

Some consider the terms "Gay marriage" and "homosexual marriage" to be inaccurate in referring to same-sex marriage since homosexuals may seek an opposite-sex marriage and non-homosexuals may seek a same-sex marriage. The term gay is variously used to refer to only gay men, to gay men and lesbians, and to LGB or LGBT people in general. Aside from the semantic issues concerning bisexuality, in the case of an intersex or transgender partner, an otherwise heterosexual marriage could be classifed either legally or genetically as a same-sex marriage.

The term "same-gender marriage" can be seen to be problematic when gender and characteristic sex diverge. For example, a transman is considered legally a woman in certain countries or jurisdictions. Thus if he married a man, it would be considered an "opposite sex marriage" in those jurisdictions, though he and his partner would be the same gender. In other countries or jurisdictions he would be considered a man, so his marriage would be a same-sex marriage.

Proponents of same-sex marriage may argue that the correct term for same-sex marriage is simply "marriage", though their opponents argue that such conflation of same-sex and opposite-sex marriage is a loaded term, and a misunderstanding of the traditional definition of marriage. They further assert that it is a threat to traditional marriages, though the precise nature of the threat is not spelled out.

Proponents of traditional marriage believe that such gender confusion is a product of modern society and that the traditional Western definition of marriage as being between one man and one woman is clear. One solution is to do away with the word "marriage" and refer to all legal marriages (regardless of gender) as civil partnerships.

Mixed marriage: the term "mixed marriage" is usually not used in reference to the same sex marriage debate. It does not refer to marriage of two persons of different genders, but rather the marriage of two persons of different religions, cultures or races.

History of same-sex unions

For detailed information, see History of homosexuality and Same-sex marriage timeline.

Asia

Same-gender romantic love or sexual desire has been recorded since ancient times in the east. Such desire often took the form of same-sex unions, usually between men, and often included some difference in age (there is far less information available on relationships among women in ancient times. There are a number of possible reasons for this: an attitude that women were not important enough to write about; or that same-sex attraction between women was not valued as it was between men; or that women were not afforded equal status with men, so that, while men were free to pursue sexual and romantic pleasure both within and without marriage, women often were not).

In China, especially in the southern province of Fujian where male love was especially cultivated, men would marry youths in elaborate ceremonies. The marriages would last a number of years, at the end of which the elder partner would help the younger find a (female) wife and settle down to raise a family See also:

Classical Europe

Main article: Pederasty

There has been a long history of same-sex unions in the western world. That many early western societies tolerated, and even celebrated, same-sex relationships is well-established, though not necessarily well-known. Evidence of same-sex marriage, however, is less clear, but there exists some evidence, often controversial, of same-sex marriages in ancient Rome and Greece.

In Hellenic Greece, the common pederastic relationships between Greek men (erastes) and youths (eromenos) who had come of age were, it has been argued, analogous to marriage in several aspects. The age of the youth was similar to the age at which women married (the mid-teens), and the relationship could only be undertaken with the consent of the father. This consent, just as in the case of a daughter's marriage, was contingent on the suitor's social standing. The relationship, just like a marriage, consisted of very specific social and religious responsibilities, and also had a sexual component.

In ancient Rome, the Emperor Nero is reported to have married, at different times, two other men in wedding ceremonies. Other Roman Emperors, including Diocletian, are reported to have done the same thing.

Increasingly influential Christianity promoted marriage for procreative purposes, combined with the Roman use of sexuality as a form of dominance, as well as a means to conquer a male enemy through rape, have been linked with the increasing intolerance of homosexuality in Rome.

See also Historical pederastic couples

Christian Europe

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Saints Sergius and Bacchus. 7th Century icon. Controversial Yale historian John Boswell considers them an example of an early Christian same-sex union reflective of tolerant early Christians attitudes toward homosexuality based on this icon depicting what some claim is a religious wedding with Jesus as best man and still surviving writings. Most theologians and historians disagree.

In medieval Europe, homosexual relations were much less open or accepted than in the classical world. However, much like the courtly love a knight might bear for his lady, deep, passionate friendship between people of the same sex was not only possible but celebrated. The "love" in such relationships has traditionally been assumed to be Platonic; but modern scholars often question this. As part of the remains of a floor of a Dominican church in Istanbul were found two gravestones marking the resting places of two knights of the royal chamber of Richard II — Sir William Neville and Sir John Clanvowe, who died days apart in October 1391. Each of their shields holds an identical coat of arms both knights' familial arms side-by-side: "impaled," that is to say, like a married couple's. Thus the companionship and formal union associated with marriage are present; the only doubt is whether sex itself was. [1]

North America

Main article: Two-Spirit

Same-sex marriage has been documented in many societies that were not subject to Christian influence. In North America, among the Native American societies, it has taken the form of two-spirit-type relationships, in which some male members of the tribe, from an early age, heed a calling to take on female gender with all its responsibilities. They are prized as wives by the other men in the tribe, who enter into formal marriages with these two-spirit men. They are also respected as being especially powerful shamans.

In the United States during the nineteenth century, there was recognition of the relationship of two women making a long-term commitment to each other and cohabitating, referred to at the time as a Boston marriage; however, the general public at the time likely assumed that sexual activities were not part of the relation.

Africa

In Africa, among the Azande of the Congo, men would marry youths for whom they had to pay a bride-price to the father. These marriages likewise were understood to be of a temporary nature.

Current status of same-sex religious marriage

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Some churches, such as the Unitarian Universalist Association, advocate marriage rights for gays as well as straights.

Most major religions disapprove of (and, therefore, don't bless or endorse in any way) same-sex marriages. In this section, only the exceptions are listed, although some adherents of disapproving religions may be individually more sympathetic.

In Canada, the issue of same-sex marriage has split the religious community, with the United Church of Canada, the country's largest Protestant denomination, and some elements of the Anglican Church of Canada being supportive.

In 2002, the Anglican Diocese of New Westminster in British Columbia (which includes Greater Vancouver) began allowing its churches to bless same-sex unions in marriage-like ceremonies. In response, bishops from Africa, Asia and Latin America, representing more than one-third of Anglican Communion members worldwide, cut their relations with the diocese.

Reform Judaism, the largest branch of Judaism outside Israel, allows religious weddings for same-sex couples within their synagogues, provided they are both adherents of the Jewish faith.

On July 4, 2005, the General Synod of the United Church of Christ approved a resolution affirming equal marriage rights regardless of gender. The leadership of this denomination made claims like "the 1.3 million member UCC became the largest Christian denomination to approve marriage equality", despite the Synod's lack of authority to speak for the denomination's largely autonomous congregations. The specifics of the resolution did not change any church's religious marriage policies, but urged UCC congregations to advocate for civil marriage equality. In keeping with the polity of that denomination, doctrinal matters like wedding policies remain under the authority of each local congregation.

Religious same-sex wedding ceremonies are already performed in Unitarian Universalist churches, some Reform synagogues, some Quaker congregations (mostly associated with unprogrammed meetings; see the main article), and by the Metropolitan Community Church.

Current status of same-sex civil marriage

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World homosexuality laws

In the late 20th and early 21st centuries, there has been a growing movement in a number of countries to regard civil-marriages as a right which should be extended to all citizens regardless of sexual orientation. Civil-marriages entail a wide range of entitlements, including social security, health insurance, taxation, inheritance and other benefits unavailable to couples unmarried in the eyes of the law. Restricting legal recognition to opposite-sex couples excludes same-sex couples from gaining legal access to these benefits. Similarly, though certain rights extending from marriage can be replicated by legal means (e.g. by drawing up contracts), many cannot; thus same-sex couples may still face insecurity in areas such as inheritance, hospital visitation and immigration. Lack of legal recognition also makes it more difficult for same-sex couples to adopt children.

At present, same-sex marriages are legal nationwide in only five countries: namely the Netherlands, Belgium, Spain, Canada, and South Africa, thanks to a 2004 ruling of the South African Supreme Court of Appeal that bans on same-sex marriage were unconstitutional. [2] Note the map at the right has not yet been updated to reflect South Africa's status.

Africa

South Africa is in the process of reorganizing certain government departments to support gay marriages. As of July 2005, the Department of Home Affairs had completed the design and printing of new forms to allow for same-sex couples to apply for immigration and residence benefits. Several same-sex couples are already legally recognized as married, thanks to the definition of "spouse" in South Africa's Immmigration Act of 2002. Same-sex marriage is handled by means of notarial contract. A contract for "mutual emotional and financial support to the exclusion of all others" is drawn up, and signed in the presence of a Commissioner of Oaths. The cost is about 350 Rand (approx $50 USD) depending on the lawyer that constructs the contract. The agreement is fairly simple and usually only two or three pages. Home Affairs waives application fees in the case of a foreign national marrying a South African citizen, just as with a hetereosexual marriage of the same type.

This change has prompted some other slight changes in South African Law. The period for which partners (including hetereosexuals) must be in a relationship before a foreign spouse qualifies to apply for permanent residence has been extended to 5 years. Also, marriage contracts now have a "trial period" where if the couple ends the relationship the benefits to a foreign spouse such as visa status may be retracted with reasonable notice.

It is unclear whether US Immigration has a loophole that allows a SA/US couple to apply for US residence as such. From the US Citizenship and Immigration Services Dept [3]:

"Definition of a Spouse

Before you file any documents, it is helpful to understand that “spouse” means lawful husband or wife. In order to successfully petition for an immigrant visa for your spouse, your relationship with your spouse must be established and your spouse must be admissible to the United States under the immigration law."

This, combined with South Africa's definition of spouse, could theoretically be used as a loophole in the immigration process. If same-sex marriage becomes legal in at least one US state, it is concievable that this loophole could be exploited to attempt to allow foreign married same-sex couples that have a US citizen as one member to immigrate to the United States. However, since marriage laws seem to be different from state to state, and immigration is a federal matter, this would likely trigger a controversy that would escalate to the Supreme Court for a decision.

Asia

In 2003 the government of the Republic of China (Taiwan) led by the Presidential office proposed legislation granting marriages to same-sex couples under the Human Rights Basic Law; however it faced opposition among cabinet members and has been stalled since. Currently Taiwan does not have any form of same-sex unions.

The National People's Congress, legislature of the People's Republic of China (PRC), proposed legislation allowing same-sex marriages in 2003. During the course of the debate the proposal failed to garner the 30 votes needed for a placement on the agenda. Same-sex marriage supporters have vowed to keep pressing for its passage in the PRC.

The Communist Party of the Philippines conducted the country’s first same-sex marriage in 2005; however it was not recognized by the government. Within the government there has been fierce debate on the issue of same-sex unions. Generally the Communist Party supports legislation allowing such marriages while the Roman Catholic Church opposes it.

The King of Cambodia, Norodom Sihanouk, announced in 2004 that he supports legislation granting marriages to same-sex couples. He is hugely revered among Cambodians; however since his proclamation there has been no legislative efforts to allow them.

Europe

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Status of legal recognition in Europe.

Same-sex civil marriages currently are legally recognized nationwide only in the Netherlands, Belgium and Spain. Belgium extends all the rights of marriage minus adoption to same-sex couples. Spain and the Netherlands, on the other hand, make no distinction whatsoever, and therefore, also extend adoption rights to same-sex couples.

In late January 2005, the Swedish government put together a committee of the major political parties to study whether or not the country should allow same-sex marriages. [4].

After being elected in June 2004, Spanish prime minister Zapatero restated his pre-election pledge to push for legalization of same-sex marriage. [5] On 1 October, 2004, the Spanish Government approved a bill to legalize same-sex marriage, including adoption rights. The bill received full parliamentary approval on June 30, 2005 and passed into law on July 2. Polls suggest that 62% to 66% of Spain supports same-sex marriage. [6][7][8] For more information see Same-sex marriage in Spain.

On 18 November 2004 the United Kingdom Parliament passed the Civil Partnership Act, which will come into force during 2005 and will allow same-sex couples to register their partnership. The Government stressed during the passage of the Bill that it is not same-sex marriage, and some gay activists have criticised the Act for not using the terminology of marriage. However, the rights and duties of partners under this legislation will be almost exactly the same as for married couples. An amendment proposing similar rights for family members living together was rejected. See Civil unions in the United Kingdom.

In May 2004, the largest opposition party in France, the French Socialist Party, announced its support for same-sex marriage. A 2004 poll by ELLE found that 64% of France supports same-sex marriage and 49% supports adoption by same-sex couples. [9] See Same-sex marriage in France

North America

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Status of legal recognition in North America. U.S. states not recognizing Civil Unions are colored grey.

Canada

Main article: Same-sex marriage in Canada

In Canada between 2003 and 2005, court rulings in the provinces of Ontario, British Columbia, Quebec, Manitoba, New Brunswick, Nova Scotia, Saskatchewan, Newfoundland and Labrador, as well as the Yukon Territory, found the prohibition of same-sex marriage to be contrary to the Charter of Rights, thus legalizing it in those jurisdictions. On July 20, 2005, the Canadian Parliament passed the Civil Marriage Act defining marriage nationwide as "the lawful union of two persons to the exclusion of all others." Canada is also the only country without a residency requirement for same-sex marriage.

The Supreme Court of Canada has ruled, on a reference question (Re: Same-Sex Marriage, 2004) that the government has the authority to amend the definition of marriage, but did not rule on whether or not such a change is required by the equality provisions of the Charter. The Court stated that such a ruling is not necessary because the federal government had accepted the rulings of lower courts. The Court also ruled that religious institutions could not be required to perform same-sex marriages.

The original case that lead to the legalisaton of same-sex marriage in Canada came from the act of Rev. Brent Hawkes of the Metropolitan Community Church of Toronto who married two same sex couples within his congregation and then challenged the authorities to register these marriages.

As of November 11th, 2004 the Canadian federal government's immigration department, the Department of Citizenship and Immigration Canada (CIC), considers same-sex marriages performed in Canada valid for the purposes of sponsoring a spouse to immigrate. See also CIC and Same-sex marriage in Canada Immigration authorities there had previously considered long-term same-sex relationships to be equivalent to similar heterosexual relationships as grounds for sponsorship.

The Canadian federal government introduced a bill for a law called the Civil Marriage Act to legalize same-sex marriage nationally. This bill (Bill C-38) was passed by the Canadian House of Commons on June 28, 2005, despite heated and vocal opposition from the Conservative Party of Canada. It was then passed by the Senate on July 19, 2005 and received Royal Assent on July 20 2005. It is now the law across Canada.

Following the passage of Bill C-38, the government of Prince Edward Island initially refused to grant marriage licenses to same-sex couples on the grounds that the wording on the necessary documents had not yet been updated and that this would not be able to be completed until the fall sitting of the legislature at the earliest [10] [11]. The province did pledge that it would make the necessary changes. However, following complaints charging that the imposed delay was illegal and infringed the legal rights of same-sex couples, the province reversed its position and the first same-sex marriage on Prince Edward Island occurred on August 20, 2005 [12]. The two territories without same-sex marriage had also previously indicated they would comply with federal law. The Alberta government, although strongly opposed, has stated that it will register same-sex marriages, but will work to protect those who oppose it on social, cultural or religious grounds.

Despite the passage of the Civil Marriage Act into law, the revised immigration policy (as of October 2005) still considers all same-sex marriages which took place in other countries (e.g. The Netherlands, Belgium, Spain, or the United States (Massachusetts)) to be invalid. For example, a Canadian citizen, legally married in The Netherlands to his same-sex Dutch partner, may not sponsor his Dutch partner for immigration as a spouse, despite the fact that both Dutch law and Canadian law make no distinction between opposite-sex and same-sex civil marriages (i.e. there is only one type of civil marriage, one type of civil marriage certificate). See CIC

United States

Main article: Same-sex marriage in the United States

As of September 2005 in the United States, only the state of Massachusetts recognizes same-sex marriage, while California, Connecticut, the District of Columbia, Hawaii, Maine, New Jersey and Vermont grant persons in same-sex unions a similar legal status to those in a civil marriage by domestic partnership, civil union or reciprocal beneficiary laws.

Seventeen states have constitutional amendments explicitly barring the recognition of same-sex marriage[13], confining civil marriage to a legal union between a man and a woman. Twenty-seven states have legal statutes defining marriage to two persons of the opposite-sex. A small number of states ban any legal recognition of same-sex unions that would be equivalent to civil marriage.

During the 2004 U.S. Presidential elections the question of whether same-sex unions should be recognized by the government became a paramount wedge issue. A strong faction within the Republican Party, the Christian Right sought a federal amendment banning any recognition of same-sex unions by any name. This position was adopted by the party's platform. Ten of the states with amendments banning same-sex marriage passed during these elections.

President George W. Bush chose to support the Federal Marriage Amendment banning same-sex marriage while agreeing with the concept of federalism, that states themselves should settle other arrangements such as civil union, domestic partnership and reciprocal beneficiary. The Federal Marriage Amendment failed in the U.S. Senate by a greater than expected number, with several members of the Republican Party defying the party's platform.

Advocates of same-sex marriage gathered support from African-American associations, feminists, scientists, Jews, Hispanic groups, celebrities, labor unions and the gay rights movement. A few Democratic Party state platforms endorsed same-sex marriage as well. Fourteen states that attempted to ban same-sex marriage by constitutional amendment failed in 2004 and six have failed in 2005. [14]

Courts in the state of Hawaii in 1993 ruled that same-sex couples were entitled to same rights as married opposite-sex couples under their state’s Equal Protection Clause. Polls at the time indicated that the majority of residents favored allowing same-sex marriage, possibly due to predominantly non-European demographics. After the ruling many traditionalist Christian organizations from the American South poured substantial funds into the state in a public relations blitz attacking the ruling, and in 1998, Hawaiian voters amended their state Constitution to give their legislature the right to restrict marriage rights. The legislature created reciprocal benefits for same-sex couples; however this type of partnership contained substantially fewer rights than a marriage.

In a partial response to the rulings in Hawaii the United States Congress in 1996 passed the Defense of Marriage Act. (Regarding the name of the act, see below.) The Act is meant to prevent the courts from using the Constitution's Full Faith and Credit clause to bring same-sex marriage to states that have rejected it by forcing one state to recognize the marriages of another state.

In Alaska in 1998, a preliminary court ruling required state attorneys to demonstrate a compelling state interest for banning same-sex marriages. Before the court case could proceed, voters approved an amendment to the state constitution prohibiting same-sex unions.

The Vermont Supreme Court in 1999 ruled that their state legislature must establish equal rights for same-sex couples similar to those of married opposite-sex couples. Legislators elected to create state level civil unions as what they argued was a middle-ground; this was signed into law by then-governor Howard Dean. The California legislature in 2003 approved legislation creating an equivalent of marriage on a state level for same-sex couples. Governor Gray Davis signed the domestic partnerships into law and it came into force in 2005.

The Massachusetts Supreme Judicial Court on November 18, 2003, ruled in the case of Goodridge v. Department of Public Health that denial of marriage licenses to same-sex couples violates the state’s Equal Protection Clause. The court stayed its ruling until May 17, 2004. Beginning on that date, hundreds of same-sex couples were legally married in Massachusetts.

Many municipalities in early 2004 wedded same-sex couples. These marriages took place in the states of California, New York, Oregon, New Mexico and New Jersey. All of them have been halted since and the marriages voided. New Jersey, District of Columbia and Maine legislators in 2004 approved domestic partnership laws granting same-sex couples all the same rights as a marriage on a state level. A Washington Court in 2004 ruled that the state must allow same-sex marriages. The ruling is currently pending an appeal to the state Supreme Court.

The Native American Cherokee Nation in 2004 issued a moratorium on same-sex marriages while they consider their validity after a lesbian couple applied for a marriage. Due to their tribal sovereignty theoretically if they allowed them the government would have to recognize it. The Tribal Council unanimously approved a Constitutional amendment stating that the Cherokee defines marriage as between one man and one woman. The couple have appealed to the judicial court, on grounds that their union predated the amendment.

On February 4, 2005, New York state trial court judge Doris Ling-Cohan ruled in Hernandez v. Robles that New York had to allow same sex couples to wed. This ruling, which is stayed pending an appeal by New York City's mayor, Michael Bloomberg, would only apply to New York City, although a ruling unfavorable to the state's position by an appellate court would apply to a larger geographic area. See Same-sex marriage in New York. More recently, on March 15, 2005, the San Francisco County Superior Court ruled that California's state constitution forbids discrimination against same-sex couples wishing to be married, stating that there is "no rational purpose" for the ban and comparing it to racial segregation. As in New York, this ruling is stayed pending appeal. See Same-sex marriage in California.

On April 20, 2005, Connecticut became the first state in the Union that legalized same-sex civil unions without a court order. Legislators in Maryland approved a domestic partnership bill in 2005; however on May 22 the Governor vetoed the bill, legislators are now pursuing an override of the veto.

On May 12, 2005, a federal judge in Omaha struck down Nebraska's constitutional ban on same-sex marriages, civil unions, domestic partnerships, and other same-sex relationships. U.S. District Judge Joseph Bataillon ruled that the ban, known as Initiative 416, violates the Equal Protection Clause of the 14th Amendment of the U.S. Constitution.

Elsewhere in 2005 the Governor of Utah proposed reciprocal benefits for same-sex couples. The measure was defeated and he has promised to revisit the issue in 2006. Legislation creating domestic partnerships is currently pending in Arizona and New Mexico. Civil union bills are pending as well in Montana and Oregon. Courts are considering same-sex marriage in Florida and Maryland.

On September 6, 2005, the California State Legislature became the first state legislative body to approve a same sex marriage bill. The legislation passed after an earlier defeat in the State Assembly in June of 2005. The legislation was, however, vetoed by California Governor Arnold Schwarzenegger on September 29.

On November 8, 2005, Texans voted overwhelmingly for a proposed amendment to the Texas Constitution defining marriage as between one man and one woman and preventing "institutions similar or identical to marriage" from being created. This step was taken in spite of the fact that Texas state laws already prohibited same-sex marriage because those behind the amendment feared that the law could be found unconstitutional and overturned by a court, as happened in Massachusetts.

Potentially serious legal issues arise from the conflict between state domestic partnership/same-sex-marriage laws, and the structure of U.S. Federal law, which, under the Defense of Marriage Act, explicitly does not extend Federal law recognition to those unions. This means that, for example, though they may essentially be "married" under the law of some states, partners would not be entitled to spousal "collateral" rights to Social Security, to spouse benefits in the other partner's private employer pension (if that pension is governed by ERISA) and will not be treated as "spouses" for purposes of any Federal tax law.

Australia

Main article: Same-sex marriage in Australia

Australia currently recognizes same-sex partnerships in all but two of its states: Victoria and South Australia. South Australia as of 2005 has legislation pending allowing the recognition of same-sex partnerships. Australian Prime Minister John Howard proposed an amendment to the marriage laws banning same-sex marriages, while allowing current domestic partnerships to continue to be determined on a state and territorial level: the same-sex marriage ban passed in 2004. He also barred same-sex couples from adopting children from overseas. Western Australia, Tasmania, and the Australian Capital Territory all allow same-sex couples to adopt children from within this states, although Tasmania requires same-sex couples to have a prior relationship with the child being adopted (eg, through being related to the child).

It can be argued that the Victorian Statute Law Amendment (Relationships) Act 2001 recognises domestic partnerships as being a couple who live together on a genuine domestic basis irrespective of gender. Whilst this is not explicit recognition of same-sex partnerships, the approach ensures equality of not only heterosexual and homosexual defacto or common law relationships, but other possible permutations which may or may not be based upon a sexual relationship.

Nevertheless, since other relationship issues such as compulsory Superannuation are governed federally, discrimination against gays remains and is unlikely to change in the near future.

Other forms of same-sex partnership

The movement towards the legal recognition of same-sex marriages has resulted in changes in the law in many jurisdictions, though the extent of the changes have varied:

Even in jurisdictions where they are not legally recognized, many gay and lesbian couples choose to have weddings (also called "commitment ceremonies" in this context) to celebrate and affirm their relationship, fulfilling the social aspect of a marriage. Such ceremonies have no legal validity, however, and as such do not deal with issues such as inheritance, property rights or social security.

Some writers have advanced the idea that the term "marriage" should be restricted to a religious context and that state and federal governments should not be involved in a religious rite. Some regard this as a governmental intrusion into religion; they believe that all statutes involving domestic contracts should replace the word "marriage" with "domestic partnership" and thus bypass the controversy of gender. This would then allow a domestic contract between any two individuals who have attained their majority.

Conservative critics like National Review's Jennifer Morse respond that the conflation of marriage with contractual agreements is itself a threat to marriage that "has undermined more heterosexual marriages than anything, with the possible exception of adultery." [15]

Controversy

The moral legitimacy of marriage between two people of the same sex hinges on how the authoritative definition of marriage is derived. If marriage is to have a religious foundation, the interpretation of religious texts and traditions will be key; if marriage is a social institution, legal agreement, or even a purely economic coupling, then pragmatic arguments will have more force (though moral issues will no doubt still arise). Gay rights advocates assert that marriage is a right since it is a legal agreement on the governmental level which should not be restricted to opposite-sex couples. Their opponents assert that same-sex "marriage" is not itself a right and should not be allowed on moral and/or religious grounds, or on the grounds that it will lead to a breakdown of the definition of marriage or of civil society.

Most of the controversy centers around the government definition of marriage, rather than the blessing of same sex unions by individual religious organizations, which may or may not be recognized as civil marriages.

The debate is often perceived as being same sex marriage advocates vs. religious (especially fundamentalist) or moral opponents. However, corporations and other groups sometimes give opposition or support to same-sex marriage not on any religious or moral grounds but instead with the aim aquiring some material benefit for their position. The prominence of many religious organisations, and the scriptural basis of their opposition to same-sex marriage, has led many advocates of Separation of Church & State to support the legalisation of gay marriage on the grounds that governments do not have the right to legislate on religious issues.

Those in favour of same-sex marriage argue that homosexuals contribute as much as heterosexuals to the funding for private and public family coverage even when they have no access to it, and that discrimination decreases productivity. They support the equalization of male-male, female-female, and male-female relationships, and being able to marry whomever one chooses is seen as a civil right that should not be abridged by the government.

Opponents answer that this view of marriage reduces marriage to little more than a means test for social benefits. They also see same-sex and male-female arrangements as inherently unequal, citing the fact that nothing less than humanity itself relies fully on the latter and not at all on the former, and trying to "equalize" such arrangements through force of law will only create gross social distortions to accommodate the gulf between such law and the observable facts of human nature.

Some countries and states/provinces have judicial rulings that set precedence for same sex marriage. However, popular majorities in some places continue to assert that the traditional concept of marriage cannot exist outside of a heterosexual relationship. To them, the male-female relationship has unique capacities and qualities that marriage was meant to recognize and foster that are not adequately acknowledged by the above definition.

Religious arguments

Some opponents object to same-sex marriage on religious grounds, arguing that extending marriage to same-sex couples undercuts the conventional meaning of marriage in various traditions or goes against the word of God, does not fulfill any procreational role, or sanctions a partnership centered around "aberrant" or "immoral" sexual acts. For example, James Dobson, in Marriage Under Fire and elsewhere, argues that legalization or even tolerance of same-sex "marriage" would redefine the family and lead to confusion in youths about their sexual identities[16].

Proponents suggest that, under the principles of religious pluralism and the separation of church and state, religious arguments should not be used to constitute the law.

It should be noted that not all religious people oppose gay marriage. Some churches and denominations, listed above, perform same sex marriages.

A fundamental concern of some people is that the legalization of same-sex marriage will lead to a direct attack via lawsuits against religions to force them to perform marriage ceremonies of which they do not approve, and additionally that established churches could be bankrupted by these types of lawsuits. This may be a realistic fear only in jurisdictions which restrict freedom of religion.

Societal arguments

Those who advocate that marriage should be defined exclusively as the union of one man and one woman argue that only a heterosexual union can provide the procreative foundation of the family unit that they see as the chief social building block of civilization. They argue that the definition proposed by same-sex marriage advocates changes the social importance of marriage from morality to mere custom, and may refer to themselves as "defenders" of traditional marriage. As any customary relationship may be considered "marriage", some argue that this then leads to undue legislative burden and an affront to the social value and responsibility of parenting one's own children.

Some other people object to same-sex marriage on the grounds that the purpose of marriage is a procreative partnership and that the same-sex partnership is inherently sterile. Some who hold this view see marriage as the social codification of an evolved long-term mating strategy, with economic and legal benefits to facilitate family growth and stability. These people generally do not carry over their objections to sterile heterosexual couples.

Some same-sex marriage proponents, such as Andrew Sullivan, argue that same-sex marriage retains enough moral underpinning to support the familial role marriage plays in society despite the absence of a direct (that is, unassisted by medical or social agencies) procreative element. Also that the institution of marriage would be strengthened by making it available to more people, and argue further that same-sex marriage would encourage gays and lesbians to settle down with one partner and raise families. Others argue that marriage no longer retains a procreative function of the government since many governments offer child tax-credits and assistance regardless of marital status.

Some libertarians object to same-sex marriage because they are opposed to any form of state-sanctioned marriage, including opposite-sex unions. They are not necessarily opposed to the idea of a same-sex wedding itself, only that the government should not have any role in the event, nor for that matter should government approval be sought for opposite-sex marriages. See Libertarian perspectives on gay rights.

Arguments about tradition

There have been many ritual homosexual unions practiced historically that provide many of the same benefits entitled traditionally to marriages. Some cultures have considered a set of strictly defined and regulated homosexual qualities to denote a gender that transcended both male and female. As possessors of a third gender, such people could marry either men or women. Some people in the position to write the law for their country indulged themselves in calling some of their same-gender relationships a marriage, though they assumed no familial attachment. Calling a heterosexual union the same legal term as a homosexual union for a whole state or society is only a recent occurrence.

With some notable exceptions, most societies have utilized a definition of marriage that included at least one man and one woman. Some societies have from ancient times permitted spouses to have multiple concurrent marriages (polygamy). In polygamous marriages one person, a man (polygyny) or a woman (polyandry), takes many spouses of the opposite sex; these spouses are not married to each other, but are all married to the same person. Group marriages in which three or more people all marry each other have been very rare. Many societies discourage the practice of polygamy nowadays.

Proponents of same-sex marriage point out that so-called "traditional" concepts of marriage in actuality have already undergone significant change (see History of Civil Marriage in the U.S.). Besides the abolition of polygamy in most modern societies, for example, married women are also no longer considered the property of their husbands (see the legal rights of women), divorce is legal, contraception within wedlock is allowed (Griswold v. Connecticut in U.S.), and anti-miscegenation laws forbidding interracial marriage have been eliminated.

The fact that changes in the customs and protocols of marriage often occur gives rise to the argument that marriage is dynamic, and same-gender acceptance is only the latest evolution of the institution.


Arguments about inability to prohibit certain kinds of sex

Some [17] have made the parallel that equality in marriage would lead to an inability to ban certain kinds of sex, such as sodomy, even if it applied to both heterosexuals and homosexuals. In Griswold v. Connecticut (1965), the Court said that banning contraception violated "the right of marital privacy." In Eisenstadt v. Baird (1972), it extended the same privacy rights to unmarried people.

As the argument goes, if marriage is extended to homosexuals, then "the right of marital privacy" would mandate that sodomy must be permitted even if the state wishes to prohibit it for health reasons. Some claim that this argument is now moot due to the 2003 case titled Lawrence v. Texas.

Some opponents also claim that allowing same-sex marriage will blur other common law precedents and lead to the legalization of various other perceived undesirable marriages including:

  • incestuous marriages: The counter-argument is that allowing same-sex couples to marry does not alter the restriction on consanguinous relationships.
  • marriages of convenience for tax or other reasons: The counter-argument is that these are already legal between people of the opposite sex.
  • marriages between humans and animals. Non-human animals, however, do not have the legal standing to consent into a marriage contract. This argument is not taken seriously by most commentators, and may be often considered insulting in comparing homosexual humans with animals.
  • polygamous/group marriages. The counter-argument is that allowing same-sex couples to marry does not change the restriction on the number of people who may contract a marriage. Furthermore, because of the reciprocal nature of many spousal rights and responsibilities, it would not be possible to give three-person groups equal rights and responsibilities as two-person groups. For example, if a government gives medical coverage to spouses of service members, then a service member with thirty spouses would either receive benefits far more valuable than one with only one spouse would or not all that service member's spouses would receive coverage. Of course, this argument suffers some when it is seen that service members with various numbers of children have no such difficulties.

Supporters of same-sex marriage state that, in the jurisdictions that have afforded legal recognition of same-sex unions, the dire consequences foretold by opponents have not come to pass.

Many people, while tolerant towards the sexual behaviour of others, see no reason to alter their society or government's traditional attitudes towards marriage and family. This could be considered an application of the precautionary principle.

Arguments concerning children

Some object on the grounds that same-sex couples should not be allowed to adopt or raise children or to have access to reproductive technologies, and that same-sex marriage would make such adoptions easier. A number of leading health and child welfare organizations, however, have found otherwise. They include the Child Welfare League of America, North American Council on Adoptable Children, American Academy of Pediatrics, American Psychiatric Association, American Psychological Association, and the National Association of Social Workers. (See [18]) On July 28, 2004, the American Psychological Association's Council of Representatives adopted a resolution supporting legalization of same-sex civil marriages and opposes discrimination against lesbian and gay parents. (See [19])

A study characterizing homosexuals as criminals, killers, deviants, and perverts was published in 1983 by Paul Cameron, now the chairperson of the Family Research Institute in Colorado Springs, Colorado. The American Psychological Association expelled him for violating the Association's ethical principles following his publication of the 1983 ISIS Survey. In 1985 and 1986 the American Sociological Association adopted resolutions claiming that Cameron had consistently misrepresented sociological research.

Arguments concerning equality

In the United States, there are over 1,049 federal laws in which "rights, benefits, and privileges are contingent on marital status" (United States General Accounting Office). See Rights and responsibilities of marriages in the United States for a partial list. A denial of rights or benefits without substantive due process, assert the proponents of marriage equality, directly contradicts the 14th Amendment of the US Constitution which provides for equal protection of all citizens.

In a 2003 case titled Lawrence v. Texas, the Supreme Court held that the right to private consensual sexual conduct was protected under the Fourteenth Amendment. Both supporters and detractors of same-sex marriage have noted that this ruling paved the way for subsequent decisions invalidating state laws prohibiting same-sex marriage. U.S. Supreme Court Justice Antonin Scalia noted as such in his dissenting opinion to Lawrence.

Some opponents of extending marriage to same-sex couples claim that equality can be achieved with civil unions or other forms of legal recognition that don't go as far as to use the word "marriage" that's used for opposite-sex couples. An opposing argument, used by the Massachusetts Supreme Judicial Court in Goodridge v. Dept. of Public Health, is the following: "the dissimilitude between the terms "civil marriage" and "civil union" is not innocuous; it is a considered choice of language that reflects a demonstrable assigning of same-sex, largely homosexual, couples to second-class status" and also that "The history of our nation has demonstrated that separate is seldom, if ever, equal."

Some proponents of Same-sex marriage make a comparison between racial segregation and segregation of homosexual and heterosexual marriage classifications in civil law. They argue that dividing the concept of same sex marriage and different sex marriage is tantamount to "separate but equal" policies (like that overturned in the US Supreme Court case Brown v. Board of Education), or anti-miscegenation laws that were also overturned).

Reverend F. Russell Baker, of the United Church of Christ, who personally experienced discrimination because of his interracial marriage with an African-American woman shortly after the repeal of anti-miscegenation laws in the U.S., compares same sex marriage opponents to racial segregationists of the 1960's by arguing that:

Some of the same segregationists of the past are now the enthusiastic proponents of these new anti–gay marriage laws... [I]f one listens carefully to the gay and lesbian community, one discovers that often after much turmoil, a person comes to the conclusion that they were created this way... No one ever said understanding God’s will for us would be easy... Jesus said we need to accept others, care for others, and love others just as God accepts, cares for, and loves

He concludes "There will come a time when we will look back upon [banning gay marriage in eleven states] for the shame it is. I hope it will be soon."[20]

A brief presented by Cardinal Marc Ouellet, archbishop of Quebec, opposing the legal recognition of same-sex couples, argued that the decision to give such legal recognition is based on a false understanding of the meaning of equality between persons, as well as human dignity, and that "The equality and dignity of persons do not depend on race, religion, sex, sexual orientation or marital status. Their dignity and equality are based on the simple fact that they are members of the human race. To respect their dignity, neither the state nor society is obliged to legally accept their 'lifestyle' that has no reason to be publicly recognized as a social value." [21]

One fundamental problem for any law banning same-sex marriage is defining the terms "man" and "woman". If defined genetically, both transsexuals and intersexed individuals would be prohibited from marrying partners of the "opposite" sex and therefore from heterosexual marriage. Just as recent same-sex marriages have been quickly overturned as null and void, so too could extant, long term marriages. More than one in one hundred newborns are to some degree physically aberrant from their genetic sex, with most of them undergoing some degree of surgical alteration. Making allowances for "medical circumstances" would prove difficult, as homosexuality is certainly to some extent biological and probably genetically influenced. In the United Kingdom, recent legislation allows transsexual persons to be officially recognized in their new gender, but this has the effect of annulling any previous marriage. However the couple will now be able to register a civil partnership, to come into force immediately on the dissolution of their marriage.

Further, in the final chapter of "Same- Sex Marriage? A Christian Ethical Analysis", [22] liberal Pastor Marvin Ellison advocates that "marriage" should not just be limited to two people (regardless of gender) because this sets up inequalities in rights for people involved in polyamorous relationships.

Miscellaneous

The Etiquette of addressing same-sex couples is often questioned. Some people with friends who are in a same-sex marriage are unsure as to how to address them, since in English and other languages, married people may use a different form of address from single ones. Etiquette writer Judith Martin (Miss Manners) counsels that where the spouses have taken one name, they may be addressed as The Messrs. John and Richard Doe or Mmes. Alice and Carol Roe; otherwise, they may be addressed individually, as is done for other married couples with different surnames. [23]

Marriage organizers see legalization as a business opportunity, and claim that homosexual couples are interested in sophisticated ceremonies, both due to lack of established traditions and because of the enthusiasm that they have been building for years.

In a 2005 episode of The Simpsons ("There's Something About Marrying"), Springfield legalized gay marriage to attract the pink dollar.

See also

Bibliography

External links

General

Specific country/state


bg:Еднополов брак es:Matrimonio entre personas del mismo sexo fr:Mariage homosexuel ko:동성 결혼 nl:Homohuwelijk ja:同性結婚 pt:Casamento entre pessoas do mesmo sexo ro:Căsătorie homosexuală sv:Samkönat äktenskap zh:同性婚姻