KarMel
Scholarship 2007
|
“Separate but Equal”
By Danielle
Anthony
|
Desciption of Submission: A persusive essay about the
unconstitutionality of disallowing the marriage of gay couples.
At the time of the last United States census, there were
close to 200,000 couples committed to each other that could not enjoy the legal
privileges of marriage. These people
cannot inherit property that they shared with their deceased partner, they
cannot share joint custody of a child, and they cannot visit their partner in
the hospital unless they are given permission from the sick person’s family
(Partners table 1). They cannot do any
of these things because they are gay.
To examine the reasons why committed gay couples
cannot enjoy the legal privileges of marriage, one must define the words “gay”
and “marriage”, and the phrase “legal privileges of marriage”. One also must examine the traditional reasons
for preventing gay marriage. Finally,
one must examine the constitutionality of laws prohibiting or preventing gay
marriage.
Because the word “gay” is often used to signify
homosexuals of both genders, I use the word in this sense, and also to
encompass all people of a sexual orientation other than “straight”, including
bisexuals and transgendered persons.
Though the word gay is often used to signify only male homosexuals, for
the sake of brevity and clarity, for the purpose of this argument it is more
effective to use the term to define all non-“straight” people. In this essay, I will use the words
homosexual, gay, and same-sex (as in same-sex marriage) interchangeably.
Marriage has two different definitions today. Traditional, or ceremonial marriage, is an
institution uniting two people spiritually.
However, marriage is also a “legal status, from which certain rights and
responsibilities automatically flow” (Cameron and Sherman, 18). In this case, marriage unites two people in
the eyes of the state. Because this
essay does not deal with the spiritual issues of marriage, but rather the legal
ramifications of marriage, one is compelled to define marriage as a legal
status uniting two people in the eyes of the state.
The legal privileges of marriage vary from state to
state. In this case, civil unions will
be included as a form of marriage because they confer most of the privileges of
marriage to the united couple (Vermont par. 2)
Domestic partnerships are not included as a kind of marriage because
they only confer a limited number of privileges upon a couple.
The legal privileges of marriage may be broken into
three categories: economic, legal, and social protections (Pennsylvania par. 2). Economic privileges include sharing Social
Security and Medical benefits, tax exemptions, obtaining a spouse’s veteran’s
benefits, inheriting a deceased spouse’s property without need of a will (as in
sudden or accidental deaths), joint rentals, and wrongful death money. Legal privileges include having joint
childcare, joint insurance and health care coverage, divorce rights including
child custody, the ability to indicate medical care for a spouse, and the
ability to obtain immigration rights for a spouse from another country. Social privileges include being able to
choose burial rights for a dead spouse, and the ability to visit a spouse or a
child in jail, or other institutions (Pennsylvania
par. 3, Cameron and Sherman 11-15, Partners table 1& 2).
These benefits are not available to people who are
“living together”, and most of these benefits are not available for people in
domestic partnerships (Cameron and Sherman 10).
For example, if a California
woman dies suddenly without making a will, her domestic partner of ten years
will not receive the property that they shared.
Conversely, marriage privileges give couples shared benefits: in many
cases, the law looks at a married couple as one person.
There is a past and tradition behind laws that
prohibit gay marriages. One reason why
homosexuals could not marry in the past was because they are not traditionally
able to produce offspring. In the
original California
laws, physically impaired people who could not bear children could not be
married (Cameron and Sherman, 19-20).
This marriage law exists today, even though many married couples today
do not have children because they either choose not to have children or they
are unable to have children. Ironically,
many gay couples do produce children through in-vitro fertilization, surrogate
mothers, adoption, or other methods.
David Orland, who argues that gays should not be married because they
cannot have or raise children, writes in his article “The Deceit of Gay
Marriage” that “adoption by homosexual couples is still exceedingly rare” and
the law is against gay couples adopting children (Orland par. 8). However, this is a circular argument because
the law is against non-married people adopting children. If gays cannot marry, they cannot adopt.
Another reason why gays cannot marry is that the United States
has a stong Christian tradition that prohibits same-sex marriage. In 1770, an estimated 75 percent of the
population of the colonies attended church or synagogue (Bailey, Cohen, and
Kennedy, 95). Then, the church taught
that homosexuality was wrong and evil.
Today, many churches are accepting homosexuals and even acknowledging
their right to marry. However, the
traditional thought that gays are unacceptable members of society still
prevails.
Many people today believe that gays should not have
the legal privileges of marriage. For
instance, the group that is ironically named the Alliance
for Marriage believes that gay marriages will “undermine marriage” (Alliance for Marriage.Org
par. 4). However, their definition of
marriage is “the union of male and female” (Alliance for Marriage. Org par. 3), and this is the traditional definition of marriage, not
the legal definition of marriage. This
group seeks to make an amendment that ensures that all marriages are
heterosexual. Yet, their logic is
faulty, because their goal is to emphasize the importance of the role of family
in the United States (Alliance for Marriage.Org
par. 1). If gays were allowed to marry,
according to the Census of 2000, 301,026 men and 293,366 women would have their
relationships strengthened by the bonds of marriage (Unmarried-Partner
Households). The biggest problem with
the Alliance
for Marriage is that they are trying to mix the traditional definition of
marriage with the legal definition of marriage, and while the two are not
mutually exclusive, they do not belong together when discussing the legal
ramifications of allowing gays to marry.
The most important reason that gays
should have the legal privileges of marriage is that the United
States have been built on the principle of freedom. The Declaration of Independence states that
“We hold these truths to be self-evident: That all men are created equal; that
they are endowed by their Creator with certain unalienable rights; that among
these are life, liberty, and the pursuit of happiness[…]” (Bailey, Cohen, and
Kennedy A17). Many people in the United States
today believe that homosexuals should have the freedom to marry, and should be
able to benefit from the legal privileges, benefits, and protections of
marriage. If all men are created equal,
should not all men also have shared legal benefits that come with
marriage? The law should have no bearing
on whether a man can marry a man or a woman can marry a woman, just as the law
cannot prevent an African-American from marrying a white person or a woman that
cannot bear children from marrying a man that can reproduce.
As this argument shows, people who
are forced to remain separate do not have the rights equal to their legally
married counterparts; once again, it has been shown that separate is not
equal. The original stand against
separate but equal was a hard battle that is still being fought today; we can
expect this new struggle against injustice will be similarly difficult. However, it stands that gays should have the
right to be legally married in all parts of the United States. As the Alliance for Marriage declares, the
fight for gay marriage rights “represents nothing less than a profound social
revolution” (Alliance for Marriage.Org par. 2)
One hopes that this social revolution will be won by freedom-loving Americans
and separate but equal will be over-thrown again.
Works Cited
Armas,
Genaro C. “Census Finds Almost 600,000 Households Nationwide Include Same-Sex
Couples.” New York Newsday.Com (22 Aug.
2001). 17 Sept. 2002 <http://www.newsday.com/news/local/newyork/ny-bc-census-samesex0822aug22.story>
Bailey, Thomas A., Cohen, Lizabeth, and David M. Kennedy. The American Pageant.
12th ed. Vol. I. New
York: Houghton Mifflin Company, 2002.
Cameron, Susan, and Ed Sherman. California Marriage Law.
14th ed. Soguel,
CA: Nolo Press Occidental, 2001.
Comparing Legal Marriage/Ceremonial Marriage/Domestic
Partner Benefits. Partners Task
Force for Gay & Lesbian Couples. 17
Sept. 2002 <http://www.buddybuddy.com/mar-comp.html/html>
Lambda
Legal Defense and Education Fund Fact Sheet: Legal/Economic/Protections of
Marriage. Statewide Pennsylvania Rights Coalition. 19 Sept. 2002. <http://www.sparc-pa.org/Working%20Groups/families/lldefmarriage.html>
Orland,
David. “The Deceit of
Gay Marriage”. Boundless
Webzine. 24 Sept. 2002. <http://www.boundless.org/org/2000/features/a0000307.html>
PCT14. Unmarried-Partner Househoulds By Sex of Partners [7] – Universe: Households, Census 2000
Summary File 1 (SF 1) 100-Percent Data. U.S. Census Bureau.
19 Sept. 2002. <http://factfinder.census.gov/servelet/DDTable?ds_name=D&geo_id=D&mt_DEC_2000_SF1_U_PCT014&_lang=en>
“Responses to Common Questions”. The Federal
Marriage Amendment. Alliance For Marriage.Org. 19
Sept. 2002. <http://allianceformarriage.org/reports/fma/faq/cfm>
The Vermont
Guide to Civil Unions. Deborah L.
Markowitz, Vermont Secretary of State. 19 Sept. 2002. <http://www.sec.state.vt.us/otherprg/civilunions/civilunions.html#faq1>
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