Same Sex Marriage Prohibition

[mrmufin]

Currently, at least eleven US States have laws which codify marriage as exclusively heterosexual unions. I suggest that prohibiting same-sex marriage can be reduced to gender discrimination, rather than good ol' fashioned republican party line homophobia. To make my case, I'll introduce two (perhaps not so hypothetical) same-sex couples, Robert and Russell and Rhonda and Roxanne. Consider the following premises for my case:

1. There are real government-sanctioned benefits associated with being a party to a marriage certificate. Though the benefits may vary slightly from state to state, they exist just the same.

2. Though some US states prohibit same-sex marriages by definition, none of the several States actually test marriage license applicants to determine their sexual orientation. This being the case sexual orientation has absolutely no bearing in the marriage process.

3. During the marriage license application process, there are no tests for love, respect, commitment, etc. Whether or not these traditional components are included in marriage vows or the ceremonials is entirely up to the couple getting married. Quite a few couples enjoy the minimalist ceremonies officiated by local magistrates prior to commencement of civil court.

Robert and Russell are involved in a loving, committed relationship with each other. The same can be said for Rhonda and Roxanne. All would like to shore up their emotional ties to their respective partners with the legal commitment and government-sanctioned benefits associated with marriage. Since Russell or Robert could legally marry either Roxanne or Rhonda (but not each other) and Rhonda or Roxanne could legally marry either Russell or Robert (but not each other) it appears to me that the only thing prohibiting such marriages is the gender of one of the marriage license applicants. Discrimination based solely on gender is pretty unpopular her in the USofA (recall women's suffrage), yet this seems to be overlooked when it comes to marriage, perhaps due to the passions raised when discussing homosexual issues.

So for debate:

Can prohibitions against same-sex marriages be effectively reduced to gender-based discrimination? Feel free to point out any flaws in my argument and/or the premises listed above.

Why should/shouldn't governments get a free pass to discriminate on the basis of gender when it comes to marriage?

Given past gender-based discrimination arguments and court decisions, is there enough legal stock in my premises and arguments to unset the heterosexual marriage definitions in the eleven US States?

Regards,
mrmufin

[McCulloch]

Can prohibitions against same-sex marriages be effectively reduced to gender-based discrimination?

I suspect not. Your argument seems to hinge on the lack of a test. But I would really like to see a qualified legal opinion.

Given past gender-based discrimination arguments and court decisions, is there enough legal stock in my premises and arguments to unset the heterosexual marriage definitions in the eleven US States?

Do you really think that it has anything to do with legal stock, rational analysis or logical arguments?

[ST88]

Can prohibitions against same-sex marriages be effectively reduced to gender-based discrimination?
Yes, they can. You would have to look at other statues in which there are obvious -- i.e., non-arbitrary -- gender distinctions. One such statute is the Family and Medical Leave Act (FMLA), which states that an employee can obtain unpaid leave from a job for the birth and care of a newborn child. The gender distinctions are non-arbitrary and obvious. The mother gives birth, the father gives support (theoretically). The FMLA does not make a distinction between the employee being male or female -- that is, whether or not the person involved is actually giving birth, the FMLA allows the leave, in equal measures to males and females. Here is an instance where the law could justifiably make a distinction, yet it chooses not to. Why not? The father can get up to 12 weeks of unpaid leave to stay with the newborn and the mother despite the fact that he has not undergone a medical procedure.

In General Electric v. Gilbert (1976), the Supreme Court said that

the failure to provide disability benefits for pregnancy was a distinction between two groups of women - pregnant and non-pregnant women and not a distinction between women and men, thus it was not discrimination.
-- THE QUEST FOR A LACTATING MALE: BIOLOGY, GENDER, AND DISCRIMINATION

The law has continued to deny such distinctions even when biological differences can be noted plainly. In other words, the law does not care whether someone is male or female, even in the face of so-called "natural law".

The California statute is currently under attack. A judge has ruled that the ban does amount to gender discrimination and has gone further to say that it also violates "the fundamental right to marry a person of one's choice". It is true that the law recognizes only one distinction between gay marriage and hetero marriage, and that is the gender of the spouse. What other distinction could be made?

Why should/shouldn't governments get a free pass to discriminate on the basis of gender when it comes to marriage?
Shouldn't. The government has to justify its laws with statutory language -- there has to be a civic reason involved, and it has to be stated.

Given past gender-based discrimination arguments and court decisions, is there enough legal stock in my premises and arguments to unset the heterosexual marriage definitions in the eleven US States?
I don't know about the other states, but in California:

courts since 1971 have considered [gender] on a par with race, making it nearly impossible for the government to justify discrimination on either ground.

A finding of race or [gender] discrimination is "almost invariably fatal to the statute,'' said Steven Hirsch, an appellate specialist with Keker & Van Nest in San Francisco.
-- THE BATTLE OVER SAME-SEX MARRIAGE

[mrmufin]

Your argument seems to hinge on the lack of a test. But I would really like to see a qualified legal opinion.

Let there be no mistake about my position: even if sexual orientation could be effectively tested during the marriage license application process, I'd still be opposed to the bans on same-sex marriage, I'd just consider it a different form of discrimination.

On the other hand, if we could effectively test for things like love, trust, commitment (all those warm, fuzzy, traditional reasons for marriage), I might not be too deeply opposed to such evaluations in the marriage license application process.

Given past gender-based discrimination arguments and court decisions, is there enough legal stock in my premises and arguments to unset the heterosexual marriage definitions in the eleven US States?

Do you really think that it has anything to do with legal stock, rational analysis or logical arguments?

Well, I would certainly hope that logic, rational analysis and legal precedent still have some meaning here in the USofA... Maybe there is no proper place in 'merican society for this pesky infidel who values justice and equality.

Regards,
mrmufin

[mrmufin]

The government has to justify its laws with statutory language -- there has to be a civic reason involved, and it has to be stated.

Hmmm... I wonder if anyone representing the other team on this issue can pony up some civic reasons for opposing same-sex marriages. It'd be extra neat-o if the reasons didn't involve stuff like "The Bible says..." or "Gays are yucky..." or "It would devalue the institution of marriage..." (I never could grasp the mechanics of that one; perhaps someone could 'splain it to me).

courts since 1971 have considered [gender] on a par with race, making it nearly impossible for the government to justify discrimination on either ground.

A finding of race or [gender] discrimination is "almost invariably fatal to the statute,'' said Steven Hirsch, an appellate specialist with Keker & Van Nest in San Francisco.
-- THE BATTLE OVER SAME-SEX MARRIAGE

Thanks for that link, ST88...it is a very informative article, indeed. As the same article also stated:

The potential problem in Kramer's analysis, said Hastings' Amar, is that the marriage law "is not motivated by a hierarchy between men and women,'' unlike the law against interracial marriage, which was rooted in white supremacy.

"It isn't the presumed inferiority of either gender, men or women, that's driving same-sex marriage laws,'' said Hirsch, who disapproves of such laws. "It's the presumed inferiority of gay people. So what's really at issue here may not be gender discrimination but sexual orientation discrimination.''

When it comes to laws that discriminate based on sexual orientation, California courts, like federal courts, have applied a less demanding level of scrutiny, upholding any law that has a rational justification. So far, the only rationales that have been squarely rejected are outright prejudice or moral disapproval of homosexuality.

I'd be curious to see exactly what would constitute a rational justification for discriminating against homosexuals, especially in the marriage license application process...

Regards,
mrmufin

[micatala]

I think the idea that opposition to gay marriage is a form of gender discrimination to be a big stretch. Yes, as noted above, it seems to me it is about:

1. Biblical morality (or other religious morality as I think some other religions would also have a problem with the idea)
2. Homosexuality is yucky
3. Tradition


I don't think opponents feel gays are 'inferior' in the same sense that whites once thought blacks were inferior. It might be more accurate to say the general feeling is that gays are suffering from a disorder, and of course, you can find comments along these lines in several threads around the forum.

[mrmufin]

Hi, micatala. Thanks for your reply.

I think the idea that opposition to gay marriage is a form of gender discrimination to be a big stretch.

Not really. At the end of the day, the thing that precludes Robert and Russell or Rhonda and Roxanne from marrying is not their sexual orientation, not at all. Nobody checks that out ahead of time. The thing that gums up the marriage application process is the gender of one of the applicants and nothing else.

Yes, as noted above, it seems to me it is about:

1. Biblical morality (or other religious morality as I think some other religions would also have a problem with the idea)

Yet there seem to be comparitively fewer religious adherents opposing, say, marriage between atheists, agnostics, or interfaith marriages. At the end of the day, marriage comes with specific government sanctioned benefits, regardless of religious affiliation or lack thereof.

2. Homosexuality is yucky

Not to homosexuals. Preventing gays from marrying certainly won't make homosexuality go away. Nor would it prevent gays and/or lesbians from living together, raising families together, naming their partners in wills, etc. Heck, I think obesity is yucky, but I'm not trying to prevent fat folks from enjoying the benefits associated with being a party to marriage certificate.

3. Tradition

BAM! You hit the nail on the head. In the same-sex marriage debate, the traditional components of marriage are almost always conflated with the civic and legal components of marriage. Traditionally, a man always married a woman. Traditionally, the bride always wore white. Traditionally, the groom always wore a tux. Traditionally, "Here Comes the Bride" was played as she walked down the aisle. Traditionally, yada-yada-yada...

Yet these traditional aspects of marriage are defied all the time with nary a whimper from the Traditionalists. Folks get married on roller coasters, in caves, on beaches, wearing plaid, listening to Van Halen (or even Stravinsky!) and nobody seems to really give a hoot about defiance of tradition.

It might be more accurate to say the general feeling is that gays are suffering from a disorder [...]

People with other disorders--bipolars, celiacs, cancer patients, drug addicts, etc.--are not precluded from marrying. Why go out of the way to prevent same-sex couples from marrying?

Regards,
mrmufin

[micatala]

At the end of the day, the thing that precludes Robert and Russell or Rhonda and Roxanne from marrying is not their sexual orientation, not at all. Nobody checks that out ahead of time. The thing that gums up the marriage application process is the gender of one of the applicants and nothing else.

I think this is an interesting point, and certainly not one I had thought about before. However, I think this is really just a technical loophole and that there is certainly no intention to discriminate on the basis of gender.

States that have instituted laws against gay marriage are clearly intending to discriminate against gays. They may not phrase their rationale in that way, and I have even heard people say that it is not discriminatory because gays are still free to marry people of the opposite gender (which I find a ridiculous, hypocritical, and probably disingenous argument), but that is really what they are doing, IMHO. In my view, these laws violate the constitution's guarantees to 'life, liberty, and pursuit of happiness.'

[1John2_26]

States that have instituted laws against gay marriage are clearly intending to discriminate against gays. They may not phrase their rationale in that way, and I have even heard people say that it is not discriminatory because gays are still free to marry people of the opposite gender (which I find a ridiculous, hypocritical, and probably disingenous argument), but that is really what they are doing, IMHO. In my view, these laws violate the constitution's guarantees to 'life, liberty, and pursuit of happiness.'

Discrimination is not always bad. People discriminate on a lot of things. Many Ford owners will never consider a Chevy. They are not bigots. Believing that marriage is only man-woman is not odd or a mislplaced mindset. It is a fact of human society. Same-sex marriage is nothing that will hurt human society unless it is pushed as an equal of the family model. That will never find acceptance in the majority of the world. It is not good to support a family situation that will have children growing up without a mother and a father. Every person needs that milieu. This is also where diviorce and adulterous relationships fail children as well. This single aspect of marriage casts a bad shadow on same sex marriage. Psycholgists deal with emotionally disturbed children in vasts numbers that fail becuase of non-nuclear (mother/wife, father/husband raising their children) families.

Religions will stand their ground to what they believe is right and wrong and in a democratic society these people will vote their conscience. The Constitution is rather meaningless overall to Muslims and Christians and I would assume Jewish believers in their religion. They have the right to discriminate against whomever they want to. Same sex marriage is a rather moot point in the overall picture of a healthy moral society as so many people are living in bad situations with complete support of so many. Nothing seems to change their desire to demand equality and nothing will make Christians, Muslims and Jews - that believe their way - ever accept homosexual marriages within their establishments. The point about the atheists that marry (and others) not opposed by people of faith is a good point. The Seperation of Church and State will always keep same sex marriages from being forced on people of good morals because of the laws that secularists hold so dear.

[mrmufin]

Hello, 1John2_26, and welcome to the DC&R forums.

Discrimination is not always bad. People discriminate on a lot of things. Many Ford owners will never consider a Chevy. They are not bigots.

They are when it comes to Chevrolets...

Believing that marriage is only man-woman is not odd or a mislplaced mindset. It is a fact of human society. Same-sex marriage is nothing that will hurt human society unless it is pushed as an equal of the family model.

I don't think that anyone here is claiming that believing marriage as specifically between a man and woman is misplaced or odd. And there are quite a few family models, indeed. The proponents of same sex marriage are interested in real govenment secured benefits associated with being a party to a marriage certificate. Marriage need not have anything at all to do with raising children.

Psycholgists deal with emotionally disturbed children in vasts numbers that fail becuase of non-nuclear (mother/wife, father/husband raising their children) families.

And psychologists had to deal with me, too: the product of a happy, stable, rather traditional family with a mom and a dad who are still happily married after 46 years.

Religions will stand their ground to what they believe is right and wrong and in a democratic society these people will vote their conscience. The Constitution is rather meaningless overall to Muslims and Christians and I would assume Jewish believers in their religion. They have the right to discriminate against whomever they want to.

I completely agree that religions have the right to stand their ground regarding what they believe is right and wrong. I also agree that folks should vote their conscience. The propenents of same-sex marriages are not asking religions to edit their doctrine or endorse their lifestyle. This is about government sanctioned benefits associated with being a party to a marriage certificate. While religions and individuals may elect to discriminate, government exists to protect and serve all of its citizens, regardless of race, gender, religion, sexual orientation, political affiliation, or hairstyle.

The point about the atheists that marry (and others) not opposed by people of faith is a good point.

I agree.

The Seperation of Church and State will always keep same sex marriages from being forced on people of good morals because of the laws that secularists hold so dear.

Almost. How 'bout, "the Seperation of Church and State will always keep same sex marriages from being forced on people or denied to people because the government shall not discriminate on the basis of race, gender, religion, sexual orientation, political affiliation, or hairstyle"?

Regards,
mrmufin