Exchanging vows, from Right to Left.

A critique of the United States acceptance of same-sex marriage law.

“[…] at a certain point I’ve just concluded that for me personally it is important for me to go ahead and affirm that I think same sex couples should be able to get married” (Obama).

With those resounding words, Barack Obama’s 2012 publicized opinion signaled what some would consider the official political tipping point to support same-sex marriage. Amidst a forty-year debate, the United States Legislative Governments have slowly recognized the existence of needed policies surrounding the rights for same-sex partners. From complete evasion of acknowledgement to the most recent and progressive landmarks to date, many sub-culture societies within the US are beginning to genuinely recognize the equal rights of gay and lesbian people in the broader United States. And while some newly fashioned laws don’t necessarily favor same-sex marriage, the fact that they address any position on the matter is still progress in itself. The current state of the issue is unresolved and progress begs the ever-present question: When and how will same-sex marriage be fully recognized by all levels of US Government? Attempting to answer this question will require consideration of past historical milestones, present legal allowances and future implications of this issue. However, this analysis will reveal that the laws attempting to ban same-sex marriage, actually segregate homosexual couples. This delineation of regional recognition of same-sex marriage is confusing, overly complex and non-beneficial to the overall constitution that exists to uphold a commonly national equal right for every US citizen.

Understanding the many ways that the different levels of US government legislation approaches the concept of marriage is not an obvious or straightforward concept whatsoever. Some instructions are needed in order to help outline where the law stops and starts on two separate levels. One of the most significant things to remember is that marriage law is operated at the State level and all licenses for marriage are issued by the State (see “Marriage”). Note the keyword “operated”. This includes the operation of protections, rights and benefits of that state bestowed to its citizens (e.g., State Tax, State Insurances, Prenuptial Agreements, Divorce, Business State Benefits, etc.). Almost every legal U.S. citizen knows that there are State level and Federal level benefits, taxes and protections. They are reminded of this when they file taxes every year. Nonetheless, the confusing part is when the Federal laws pertain to the acts of marriage. In the Federal realm they only include access to the protections, rights and benefits that are offered by services at the Federal level (e.g., Social Security, Federal Taxes, Private Employment, Immigration, Medicaid/Medicare, Spousal Rights, etc.) (see “DOMA: Get the Facts.”). Married couples don’t access those Federal services until they are licensed with the State. Many of the marriage rights, benefits and protections, are critically contingent based on the services offered at the Federal level. Things like immigration are highly reliant on US Federal laws. Couples would file for spousal benefits in many cases such as tax filing benefits, Social Security and estate laws. That being said, it is not directly apparent why marriage law is placed on the shoulders of State law when a large portion of marriage law pertains to Federal access. Another issue that confounds the necessity of State operation is the fact that some States do not recognize same-sex marriage licenses from other States or jurisdictions. That alone just complicates matters even more, there’s no consistency for efficiency’s sake, and having to manage support differently on this matter in each State is highly unfavorable from a practical point of view.

To complicate matters even more, three definitions in active existence today attempt to recognize the bond of two people in a publicly recognized format for the purpose of all or certain protections, rights and responsibilities. The definition with the least amount of rights is called a Domestic Partnership. For all intents and purpose this designation exists purely to symbolize to the public that the couple is in a permanently committed relationship, and often many of the rights bestowed to the couple are neither plentiful nor recognized in other States. (see “Marriage, Civil Unions and Domestic Partnerships: A Comparison.”) With barely any rights, domestic partnerships almost seem hardly worth having since most couples can consummate their commitment by holding a ceremony with their closest friends and family. If the government barely recognizes their rights, why would it matter to the beurocrats if they were designated as “partners” by their indifferent state government?

The next level of partnership, with more rights than domestic partnerships, are Civil Unions. However, Civil Unions still fall short of providing the hundreds of protections automatically bestowed in typical marriage law. Similar to domestic partnerships, Civil Unions aren’t necessarily recognized in other States and many important things like health benefits/insurance can be dismissed by businesses. (see “Marriage, Civil Unions and Domestic Partnerships: A Comparison.”) Civil Unions seem like a step in the right direction – they provide more rights and benefits, and it may be important to officially designate a couple that is in a committed relationship. There’s just one small problem: it’s still not marriage. Civil Unions are still fundamentally different from common marriage, and that creates a prejudice.

Lastly, we have the official term “Marriage”, which includes the full benefits and protections, nationwide from state-to-state for opposite-sex couples. Even if the laws don’t particularly address the genders of the couple, each and every state in the U.S., in fact, most likely every country in the world have laws that benefit marriage between a man and a woman. Such widespread human rights are quite a liberal concept. It stands to reason as well, that this worldwide notion is quite diverse. The concept of marriage seems to be diverse enough to cross the boundaries of same-sex situations as it does for the multitude of cultural boundaries that exist as well.

Which leads us to the many arguments to date regarding what marriage actually means to different people. Mostly we hear about the definition of purpose for marriage being based on things like procreation, family, stability and benefits rights. However, it’s interesting to note that at the onset, many contemporary societal cases for marriage are commonly formed from two people who fall in love with each other, care about each other, and desire to be with each other. There are an overwhelming number of dissertations and articles devoted to the analysis of purpose and definition of marriage. To simplify this topic, we will not address those points of contention in this paper.

Before putting the technicalities to rest, there’s one last critical aspect worth mentioning that obscures things even more. Of the States that ban same-sex marriage, there are roughly four different same-sex marriage bans in and of themselves. Bans are either divided into constitutionally elected laws that require the people’s vote and/or legislatively amended laws that are enacted by decisions of the Supreme Court or Senates. Under those two methods of passing law, there are edicts that ban same-sex marriage, or there are edicts that ban both same-sex marriage and other same-sex rights aside from marriage as well (Garvey, “Gay marriage chronology”). All of this same-sex opposition seems to uncover a larger widespread issue: that there is an inordinate amount of time being spent worrying about the personal affairs of other people when it could be spent on more meaningful things; to patronize, contributing in some way to the cure for cancer is probably more important than drafting anti-same-sex laws. Thankfully (with sarcasm), there is a way to separate the proponent laws from the opponent laws. In some rare cases, there are states that neither have laws to allow nor forbid same-sex marriages, domestic partnerships, or civil unions.

With all of this choice, complexity and confusion, it places an appreciation of hardship that the fight for same-sex marriage movement has had over the past forty years.

Like many steps of progress, one must take a few steps backwards to leap forward. Yet in all actuality, before 1970, there was virtually no marriage code that defined any requirement of gender for the petitioners of a marriage license in any state in America. Shortly after Richard Baker and James McConnell were denied a marriage license by clerk Gerald Nelson of the Minnesota Hennepin County District Court, they filed a lawsuit against Mr. Nelson in 1971, which in turn raised immediate awareness to the issue and questioned the public’s and government’s position on the matter (Baker v. Nelson). Unfortunately, Mr. Baker’s lawsuit was dismissed in court and over the course of twenty years, beginning with the state of Maryland in 1973 – same-sex marriage was consecutively banned statutorily in almost all of the fifty states (Hagerty). This is one of the many defining moments of same-sex equal rights. Lesbian, gay, bisexual and transgendered (“LGBT”) people have benefited from this exposure, and the progress we see today wouldn’t be where it is if wasn’t for the work of these lawful pioneers. In haste, it’s obvious to note that the American citizens weren’t ready to openly accept such an uncommon concept of same-sex marriage. It wasn’t until 1993 in Hawaii, and likely after the gay rights movement built up steam, when the judge of the Baehr v. Levin case declared the same-sex ban unconstitutional and ordered the state to issue marriage licenses to same-sex couples (Baehr v. Levin). A year later, another similar case in the Superior Court in Fairbanks Alaska challenged the University of Alaska-Fairbanks (“UAF”) policies limiting spousal benefits to “husbands” or “wives” of it’s married employees. The judge ruled that the UAF could not legally limit the spousal benefits to husbands and wives, because the marriage statute could be easily misinterpreted as “wife” of a woman, and “husband” of a man, and therefore couldn’t be upheld. Before too long, both Alaska and Hawaii’s statutory laws were amended with separate statewide public votes that overturned those upheld challenges, in other words, “reverting” the law back to banning same-sex marriage again (Clarkson, Coolidge, Duncan 217-220).

This is an example of how extremely difficult it is to gain traction on the passing of same-sex marriage law. In particular for this situation, in 1993 and to this day, with only a minority of people affected by the law’s lack of recognition, it makes it challenging to enact any sort of moral change in the face of a majority. Things like ignorance, fear of difference and a lack of outlined benefits easily trump a vote when State constitutional amendments are enacted upon its population. Likewise, this would be the first of many overly complicated and wasteful “flip-flop” circumstances that drain the resources of judicial hearing and public consideration that end up being pushed up to the Federal level. With drastic ramifications, the U.S. Congress became pressured by the individual States to further reinforce the meaning of marriage into the United States Constitution; the Defense of Marriage Act (“DOMA”), a powerfully discriminatory Federal level response to the Hawaii Baehr case, was drafted and passed in Congress with its final signature from President Clinton on September 1st, 1996 (Clarkson, Coolidge, Duncan 217-220).

DOMA, while not technically prohibiting same-sex marriage itself, delineated State acts and proceedings from being required to recognize same-sex marriage on both local law and any foreign formal or religious rights. Furthermore, DOMA provided an overarching concrete definition that “marriage” was meant to be “a legal union between one man and one woman as husband and wife” (H.R. 3396). For almost another two decades this sustaining law would continually be challenged and an unimaginable amount of resource spending would be used to protect it, to finally be deemed unconstitutional and then overturned by the Supreme Court on June 26th 2013.

Over the duration of time that DOMA was in effect, many States and jurisdictions still ended up enacting laws that legalized same-sex marriage anyhow. Spurred by an earlier Supreme Court ruling on November 18th of 2003, Massachusetts became the first State to officially legalize same-sex marriage on May 17th of 2004 (Garvey). Meanwhile on the West Coast, another eyebrow-raising blitz of same-sex marriages were issued from February 12th to March 11th of 2004, authorized by San Francisco’s Mayor Gavin Newsom, proliferated by the already expanding domestic partner rights being passed in the State of California (Romney). How was this all possible? It’s simple to infer that many U.S. citizens and regions were starting to warm up to the idea that same-sex marriage opposition laws had no merit, and the support that came from equal rights groups with experience in matters surrounding rights for African Americans, women’s rights, and LGBT rights had similar ethical realities and therefore became worth fighting for.

Yet again, the teeter-totter of supporting law changed direction once more near the end of 2004; eleven more States passed more constitutional amendments that further defined marriage as being between a man and a woman only. Then in 2008, the famous Californian Proposition 8 was formed by the opponents of same-sex marriage and placed on the ballot for the California State elections, where the surprising outcome of the vote blocked the furtherance of same-sex couples from marrying. The reason why this is so surprising is due to the large ethnic population in California that was mistakenly presumed to support LGBT rights since the ethnic populations of the U.S. have endured prejudice and discrimination in the past and their support should have been realized. However studies say the contrary; Michelle Baunach, an Associate Professor of Sociology at Georgia State University performed a study that analyzed the liberalization of same-sex marriage attitudes from 1988 to 2010. She stated that the results suggest that changing attitudes toward same-sex marriage reflect an overall cultural shift versus a sub-cultural assignment based on demographic details (such as sex, or ethnic origin). Nevertheless, it’s hard to see how Proposition 8 was ever a productive consequence; five years later, along with the decisions made on DOMA, the Circuit Court of Appeals lifted its stay on an injunction, ordering state officials to stop enforcing Proposition 8, and further allowing same-sex marriages to resume in California on June 26th 2013.

There is a point being made here. The appeal of U.S. citizens seeking same-sex marriage has taken its toll for some time. It’s not just a political or religious battle of marriage definition, a fight for benefits, or a stand for human rights, it’s also an emotional rollercoaster and nightmare for many homosexuals who just want to feel equal to any other citizen. Instead of constantly looking at the threats of change, we should always be seeking the benefits of inclusion.

It’s hard to see that the outcomes of same-sex marriage have a positive element for our future. For example, it has been said that there are 1,138 benefits of marriage present in Federal law (Badgett). Some benefits may not be advantageous to married couples, same-sex or not. But of the benefits that are important, they still should be freely accessible for same-sex couples that wish to pursue them under a universal law of marriage as well.

Extending health insurance seems to be of paramount importance. “National data from 1996 to 2003 showed 20% of people in same-sex [relationships] were uninsured, compared to only 11.5% of married individuals. Anywhere from 30% to 43% of that gap can be accounted for by differential treatment of same-sex partners by employers” (Badgett). This is particularly important. Health insurance offered by businesses may be extremely advantageous for same-sex couples, bringing those citizens under an affordable protective system of healthcare that is ethically positive and morally sound. Moreover, including the dismissal of DOMA, the Federal tax benefits of an average person receive benefits for a same-sex spouse is taxed $1,069 less according to a 2007 study stating the difference in insurance costs between married and unmarried individuals. That alone is a considerable amount of money that justifies an argument for gaining benefits on State tax filing as well.

From another perspective, the New Oxford Review states in its “Get Married, Save the Economy” article in October of 2010 that government and businesses can reap the rewards of same-sex marriage as well: “the average wedding nowadays costs $20,000”. If that amount was spent on every legalized same-sex marriage, it could bring more revenue to various businesses and help contribute to an active United States economy. Furthermore, with almost irrefutable delight, the U.S. Congressional Budget Office states: “Were Congress to legalize same-sex marriage in all fifty states, the U.S. Treasury could expect to enjoy a $1 billion annual tax windfall” (Get Married). It almost seems like senators in the government, political leaders and judicial review members are blatantly overlooking some of the financial incentives to lobbying for legislative change. This might be due to the fact that they are greedily looking for something with a bigger financial gain, but this is highly speculative.

With optimistic benefits in mind, we still need to know the current proverbial state of the union across the United States. Presently, the Federal law states that all Federal agencies will support same-sex marriage and the provisional benefits offered at the Federal level will be upheld regardless of which state a same-sex married couple lives (United States v. Windsor). Furthermore, there are thirteen States and the District of Columbia that already legally support same-sex marriage. Sadly however, the long-road to bolstering the rights for same-sex couples in all of the other 31 banning States will require a lot of individual lawsuits to challenge the current constitutional or legislative bans (Garvey, “Gay marriage chronology”). An alternative to the multiple individual lawsuits relies on the Supreme Court establishing a decisive national ruling in favor of marriage equality that all States must adhere to similar to dismissal of DOMA. As time passes, the Supreme Court will have a better handle on how to address all of the legal intricacies of that possibly occurring. Finally, states like New Mexico, are on the path to legally support same-sex marriage laws, with specific districts and jurisdictions within the state already exacting laws for same-sex marriage in their local civil courts (Strauss).

What this all boils down to, is what appears to be recognition of marriage equality for gay and lesbian couples. We will likely witness more discussions of the separation of State action from Church influence, as declared in the American Constitution. State level agencies and tens of thousands of businesses will likely embrace same-sex marriage benefit laws just like current the Federal Government Agencies like the IRS, Department of Labor, Department of Justice and Treasury Department (Jurist). Again, the economy has only to gain, with the creation of new jobs, this will help contribute to repairing the massive economic debt that the United States retains.

It is the hope that the readers of this paper become passionately influenced by the information collected. Nonetheless, and unsurprisingly, there will always be the devout fundamentalists that will oppose this topic with vehement discord. There’s not much that anyone can say or do that will ever forcibly change their minds. Gratefully there are the people who support same-sex marriage, of whom this paper will only advocate for their support. The fact that it deals with an issue that is highly polarized within the political sphere proves that public awareness has more than begun. As for the people who don’t have a particular stance on the same-sex marriage subject, reading this paper will either simply inform of the details, with the confidence that they too may find their attitude now drifting into support for same-sex marriage as so many others have already done.

Over 2000 years ago, the very influential Plato shared such regards on this very topic in his Symposium, with words that still echo throughout time relating similar sentiments of progress that said: “Wherever… it has been established that it is shameful to be involved in same-sex relations, this is due to evil on the part of the legislators, to despotism on the part of the rulers, and to cowardice on the part of the governed.” Let mankind truly determine what is equal in law, just in judgment, and pride in spirit.

Works Cited

Badgett, M.V. Lee. “The Economic Value Of Marriage For Same-Sex Couples.” Drake Law Review 58.4 (2010): 1081-1116. 1 July 2010. Web. 3 Sept. 2013.

Baehr v. Levin. 74 Haw. 530 (1993). Supreme Court of Hawaii. 5 May 1993. Boston College: Lambda Law Students Association. 21 April 2005. Web. 14 Sept. 2013.

Baker v. Nelson. 291 Minn. 310 (1971). Supreme Court of Minnesota. 15 October 1971. Boston College: Lambda Law Students Association. 21 April 2005. Web. 14 Sept. 2013. <http://www.bc.edu/bc_org/avp/law/st_org/lambda/baker.htm>

Clarkson, Kevin G., David Orgon Coolidge, and William C. Duncan. “The Alaska Marriage Amendment: The People’s Choice on the Last Frontier.” Alaska Law Review 16.2 (1999): 213-68. Duke Law Scholarship Repository. Duke University. Web. 17 Sept. 2013. <http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1162&context=alr>.

“DOMA: Get the Facts.” HRC Resources. Human Rights Campaign, 28 Aug. 2013. Web. 18 Sept. 2013. <http://www.hrc.org/resources/entry/doma-get-the-facts>.

“Marriage, Civil Unions and Domestic Partnerships: A Comparison.” EqualityMaine. N.p., 18 Feb. 2010. Web. 18 Sept. 2013. <http://equalitymaine.org/marriage-civil-unions-and-domestic-partnerships-comparison>.

Garvey, Megan, Molly Hennessy-Fiske, Rong-Gong Lin II, Brady MacDonald, Mark McGonigle, Maloy Moore, Anthony Pesce, Ken Schwencke, and James Wagner. “Timeline: Gay marriage.” Los Angeles Times: Data Desk. Tribune Company, 2 July 2012. Web. 03 Sept. 2013.

Garvey, Megan, Molly Hennessy-Fiske, Rong-Gong Lin II, Brady MacDonald, Mark McGonigle, Maloy Moore, Anthony Pesce, Ken Schwencke, and James Wagner. “Timeline: Gay marriage chronology” Los Angeles Times: Data Desk. Tribune Company, 28 August 2013. Web. 03 Sept. 2013.

“Get Married, Save The Economy.” New Oxford Review 77.8 (2010): 20-22. 1 Oct. 2010. Web. 3 Sept. 2013.

Hagerty, Barbara Bradley, and Maria Godoy. “Maryland Judge Rejects Gay-Marriage Ban.” NPR. NPR, 20 Jan. 2006. Web. 14 Sept. 2013. <http://www.npr.org/templates/story/story.php?storyId=5164355>.

H.R. 3396–104th Congress: Defense of Marriage Act.” www.GovTrack.us. 1996. September 17, 2013 <http://www.govtrack.us/congress/bills/104/hr3396>

“US to Recognize All Same-sex Marriages for Employee Benefit Purposes.” JURIST – Paper Chase: US to Recognize All Same-sex Marriages for Employee Benefit Purposes. Ed. Bernard Hibbitts. University of Pittsburgh School of Law, 19 Sept. 2013. Web. 21 Sept. 2013. <http://jurist.org/paperchase/2013/09/us-to-recognize-all-same-sex-marriages-for-employee-benefit-plan-purposes.php>.

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Rogers, Russ Alan Prince and Bruce. “What Is A Thought Leader?” Forbes. Forbes Magazine, 16 Mar. 2012. Web. 09 Sept. 2013.

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Strauss, Daniel. “New Mexico Clerks Lead the Push to Legalise Same-sex Marriage.”The Guardian. Guardian News and Media Limited, 5 Sept. 2013. Web. 21 Sept. 2013. <http://www.theguardian.com/world/2013/sep/05/gay-rights-new-mexico-led-by-clerks>.

United States v. Windsor. 570 U.S. ____ (2013) . Supreme Court Of the United States. 26 June 2013. Supreme Court Of the United States. Web. 3 Sept. 2013.