The need for full recognition of same-sex marriage

Humanist, Sept-Oct, 2003 by Charlene Gomes

This summer has been monumental for gay rights. First, on June 17, 2003, the Canadian government indicated acceptance of same-sex marriages when it chose not to appeal an Ontario provincial court decision that allowed gay marriage. British Columbia followed Ontario by legalizing same-sex marriages in the province on July 8. The Canadian government plans to draft legislation to fully legalize same-sex unions soon. On June 26 the U.S. Supreme Court ruled in Lawrence v. Texas that states may not outlaw "sexual practices common to a homoexual lifestyle," striking down a Texas law which had prohibited homosexual acts of oral and anal sex. And now a case to legalize same-sex marriages is pending in the Massachusetts Supreme Court, with a decision expected any day.

Many legal scholars--conservative and liberal alike--believe reconsideration of official government recognition of same-sex marriages is not far behind. Yet in response to these developments, President George W. Bush has come out strongly opposed to the prospect of same-sex marriage. In a July 30 press conference--his first since early March--he stated, "I believe marriage is between a man and a woman, and I believe we ought to codify that one way or the other, and we have lawyers looking at the best way to do that."

Yet within U.S. history, the concept of marriage has evolved significantly in two other ways: women, traditionally considered the property of their husbands, eventually became full persons in the eyes of the law and gained the right to own property themselves; and antimiscegenation laws, which had prohibited or refused to recognize interracial marriages, were struck down. What seemingly has remained constant--until now--is the definition of marriage as a union between one man and one woman. Yet contrary to even this assumption, at least a handful of states has never limited marriage to unions between a man and a woman, instead defining marriage using gender-neutral language.

The time has come to expand marriage to include same-sex couples. Recent census data reveal that the number of committed same-sex couples in the United States continues to rise, as does the number of same-sex couples raising children. Legal recognition of these relationships is vital to protecting the emotional and economic well-being of these families. Furthermore, legal recognition must be on an equal plane with heterosexual marriage--"separate but equal" is never equal.

Most human beings at some point in their lives desire to share their fortunes and misfortunes with a partner with whom they have formed lasting bonds, desire to provide emotional stability and economic security for their loved ones, desire to feel secure in the knowledge that their loved ones' emotional and economic security are protected by law. Some also desire to raise a family. In this respect, as in many others, gays and lesbians are no different from heterosexuals.

No state currently recognizes same-sex marriages, despite the fact that approximately 34 percent of lesbian and 22 percent of gay male couples are raising children under the age of eighteen. And some argue that if gay couples are going to solemnize their partnerships; present themselves to the community, friends, and family as married; and raise children even without state recognition; then what is to be gained by changing the laws to allow them true marital status? The answer is that the mere appearance of marriage is only a shadow of the actual privilege. The harm of this pantomime manifests itself in two significant areas: denying the life partner the benefits and protections afforded to a legal spouse; and interfering with the best interests of children by treating gay families differently than nongay families.

Vermont has come closer than any other state to recognizing gay marriage. On April 25, 2000, the Vermont legislature enacted a bill allowing gay couples to form civil unions that carry many, but not all, of the benefits and responsibilities of traditional marriages. The legislation essentially creates a separate system of benefits for gay couples opting to form civil unions apart from the usual benefits accorded married couples. But these benefits are available only to registered couples in Vermont, and the state has no power to confer any of the numerous federal marriage benefits to these families.

In considering how the denial of full marital status harms same-sex couples, Vermont legislators enumerated a long list of benefits and protections arising out of the marriage contract. These include: the right to inherit from a partner in the absence of a will, the right to bring a lawsuit for wrongful death of a spouse, the right to workers' compensation and other spousal economic benefits, the right to refrain from revealing marital communications in a lawsuit, the presumption of joint ownership of property, the ability to adopt a partner's child, and medical treatment and hospital visitation rights. The list goes on and on.

Some of these rights, such as creating a power of attorney, can be recreated through private contracts; however the law reserves many of these rights for a spouse only. Furthermore, the practice of contracting rights is time consuming, expensive, and far from "equal" to rights bearing the imprimatur of state or federal law. For example, the Family and Medical Leave Act, which provides leave to care for children, spouses, and parents, makes no provision for unmarried partners.