During the 2004 race for the United States presidency, there were many issues that divided the nation along liberal and conservative lines. One of the great ironies that still divides the nation is the issue of the legal recognition of marriages involving same gender couples. In this country, marriage is considered a legally, morally, and spiritually binding contract between two people who promise faithful love and support to one another and consists of vows often spoken in front of familial and religious witnesses. One would reason, then, that legal recognition of such a union would extend to any two persons of legal age, since American law and religious canon so often operate hand-in-hand in our democratic system of government. Legally-recognized unions also carry with them certain rights and privileges, whichwould seem to be all the more reason for the government to extend legal recognition to all US marriages; however, such is not the case.
Opponents of the legal recognition of same-gender marriage often cite legislative and historical reasons for their positions. Yet it is within the backgrounds of their same resources that one can find cause to ensure that gay couples receive the legal protections, rights, and privileges as do our hetero-gendered counterparts.
Legislative Context
Article IV, Sections 1 and 2, of the United States Constitution is very clear with regard to the legal responsibilities shared between and among all the states in the Union. Known as “Full Faith and Credit”, the sections of this Article state that “[full] faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state” and that “[the] citizens of each state shall be entitled to all privileges… of citizens in the several states”1. Several questions arise to test the hypothesis that marriages between gay persons are legislatively the same as marriages between non-gay persons.
- Can marriages between gay persons be considered public acts? Yes, they can, in the same ways that marriages between non-gay persons are considered public acts. Marriages between gay persons, which are often referred to as Holy Unions, involve in vows spoken before clergy, friends, and families, in ceremonies as similar and diverse as marriages between non-gay persons. Holy Unions also include the exchanging of rings, charges to the couple as well as to their witnesses, celebrations of Holy Communion, and many other aspects of the marriage rite. In fact, the celebration of the union between two gay persons constitutes a traditional marriage ceremony, in every way but one: the genders of the persons taking the vows.
- Are marriages between gay persons matters of public record? Whenever possible, yes they are. In states where affianced gay couples are allowed to apply for marriage certificates and submit other paperwork to secure legal standing for their relationships, they do so. When they meet opposition or resistance to their registries, they often attempt to fight that discrimination through legal means. These actions, as well as their ramifications, become public record through court filings, news coverage, and other forms of public record keeping.
- Do any aspects of marriage between gay persons become judicial proceedings? Yes, they do. Fighting marriage discrimination through court filings is just one way this occurs. When one partner takes the last name of the other, and makes this change through the court system, this process is a legal proceeding. The adoption of children within the union is a legal proceeding, as are any adoptions occurring during the course of the relationship. Whatever legal actions gay couples take to establish the existence and validity of their relationships and their families are judicial proceedings.
In the test of legality, marriages involving gay couples pass the legislative test. It would, therefore, show an undeniably high level of bigotry for opponents of gay marriage to enact laws that so obviously counter the spirit of equality expressed in the “Full Faith and Credit” Article contained in the US Constitution.
Historical Context
The United States has a long history of oppression, segregation, and discriminatory practices—all legal during various times in our struggle to become, and remain, a united collection of states and territories. In fact, much the United States (particularly, the South) was built through the blood, sweat, and laborious tears of a people who legally “belonged” to others who brought them here by force. Those who have been charged with running our government began that legacy by enforcing “squatters’ rights”, also known as adverse possession. The “squatters”, in this case, came to this country and—through brutal and bloody means—claimed these lands for their own, uprooting and displacing thousands of native peoples who had lived here for generations before them. Walking through the doorway of this new millennium, it is really no wonder that there are still those who hang on to rights, protections, and privileges as if no one else deserves the same considerations.
Fifty years ago, the push for civil rights brought the realities and ramifications of institutionalized and legalized discrimination into the forefront of the American consciousness. African Americans—Americans whose ancestors were forcibly removed from their homelands, brought to this strange place, and worked until death without pay—stood up to say that “separate but equal” is never equal and never works. Fast forward to 2005, and we find that the same belief holds true for gay couples seeking marriage equality.
The Rainbow Alliance cites over sixty areas that are unequal in their applications to gay and non-gay couples, among them:
- Shared Taxes. Married non-gay couples get to average their salaries to reach a lower bracket which benefits married couples with one high-wage worker and one low-wage worker (typical of a family where perhaps the mother works “mom’s hours” to supplement the budget while the kids are young.) Gay couples in a comparable situation are taxed at a higher rate.
- Next-of-kin privileges. If one partner gets sick or dies, the other can be shut out of the process by the patient’s family, particularly dangerous in families who do not accept the patient’s partner or family situation. Legal recognition of marriages between gay persons would place the control of these gut wrenching situations into the control of the spouse and not the patient’s family-of-birth, just as it is in marriages between non-gay persons.
- Bereavement leave. Many employers only grant leave to workers who lose close relatives. Significant Others (SOs) are not factored into the equation, so to speak, unlike spouses in legally recognized marriages.
- Pensions and health insurance. Few employers grant benefits to the spouses of their gay employees. Even in those cases where benefits are granted, these benefits are taxed; spousal benefits for non-gay beneficiaries are not taxed.
- Immigration. Marriage between immigrants and non-gay Americans automatically confers US citizenship to immigrating spouses. Gay couples have to separate when the immigrating spouse’s visa expires.
- Social Security. Only the surviving spouses in non-gay marriages receive survivor benefits.
- Inheritance. Gay spouses pay estate taxes, non-gay spouses are exempt. In addition, only non-gay widows and widowers have legal standing to challenge the wills of their late spouses.2
These examples serve to illustrate, with depth and clarity, the breadth of subjugation practices in the United States with legislative and historical precedence and prescience. These practices are systematic, ingrained in our psyches for the past 500 years. It is how we have been operating; it is still the way we operate today. Gay couples in the United States face the same struggle for marriage equality that Native American couples, American couples of African Descent, and American Black/White couples faced over the course of uniting these states—making the theory of “special rights”3 a moot point. Legal marriage protection, with the bestowal of legal marital responsibilities and legal marital privileges, is not a special right. It is a cultural trinity that represents a sacred rite of passage, one that should available to every law abiding (or what passes for such), tax paying, and contributing citizen of the United States and her possessions. It was once withheld from native couples, from black couples, and from black-and-white couples, during the course of our history together, and laws are being enacted and re-interpreted in order to withhold it from non-gay couples. But if we all pay the same taxes and abide by the same laws, those laws need to include and protect all of us and confer upon us the same rights, privileges, and responsibilities, regardless of the genders of our spouses.
Whether approaching the issue of gay marriage from a legislative standpoint or from a historical one, it is clear that the present course of events will lead to a definite change in the fabric of how one defines what it means to be an American. Our cultural history indicates that gay couples are just another segment of society whose once-ignored face is gaining clarity and shape on the American landscape. How will future generations see us? Today’s high-school and college-age kids are tomorrow’s government and cultural leaders—and many of them have gay parents, uncles and aunts, and grandparents. And many of them are gay, as well. It is my hope that the laws we enact now will protect them and endow all of them with the same rights and privileges, regardless of the genders of their spouses.
Cited
1 US House of Representatives – Text of the U.S. Constitution.
2 The Rainbow Alliance – Religious Definition of Marriage.
3 Note: ‘Special rights’ is a political term used primarily by conservatives in the United States to refer to laws that enumerate rights related to sexual orientation. Gay rights advocates prefer to describe these laws as ending discrimination, and thus conferring equal rights.” Wikipedia – Special rights.