The history of gay rights has been a tumultuous one. While numerous victories have been won, the struggle is still far from over. Although the American Psychiatric Association removed homosexuality from its list of mental illnesses in 1973,¹ homosexuals are still often viewed and treated as people who cannot possibly know what is good for themselves or society in general, much like the mentally ill. And although homosexual acts have been decriminalized in thirty-one states,² the federal government still sees fit to deprive homosexuals, like felons, of certain basic rights. Despite the fact that homosexuality is becoming more acceptable to society in general, the old prejudices are still enough in force to keep homosexuals second-class citizens. What's all the fuss about? Marriage, in this case. Homosexuals' right to marry has been denied in this country, but the time has come for that denial to be repealed and America to realize that two adults' feelings for each other, and not other people's prejudices, should decide whether marriage should take place.

Some argue that the concept of same-sex marriage is not a new one. According to scholar John Boswell, same-sex unions akin to marriage were prevalent in ancient Greece and Rome, as well as in early Christian Europe.³ While opinion is divided on this assertion, it is nevertheless difficult to dispute the fact that marriage is an important issue in the fight for gay rights. One of the first major court cases concerning same-sex marriage involved two lesbians who tried in 1971 to get a marriage license.⁴ Although they lost, they set the stage for numerous legal battles to follow.

One of these was the case of Sharon Kowalski and Karen Thompson. The two had been living together when a car accident in 1983 left Kowalski paralyzed and brain damaged. Minnesota courts granted guardianship first to her parents and then to an unrelated third party. It was not until 1991 that Thompson was awarded guardianship when doctors testified that despite her inability to speak, Kowalski had clearly demonstrated her preference for Thompson. Occurrences such as this are what spur many gay-rights activists to fight for marriage; had Kowalski and Thompson been married, there would have been no need for the courts to get involved.⁵

In 1993, a breakthrough seemed imminent. Three same-sex Hawaiian couples sued for their right to marry, and took the battle all the way to Hawaii's Supreme Court. The court sent the case back to trial, saying that the state would have to prove the constitutionality of its law restricting marriage to heterosexual couples.⁶ Legalization of same-sex marriage in Hawaii seemed highly probable, prompting twenty-eight states to ban it over the next four years.⁷ Although in 1996 Judge Kevin Chang found the law discriminatory and unconstitutional, Hawaii's legislature went on to amend its constitution in 1998 to ban same-sex marriages.⁸ Also in 1996, the federal government took action by passing the Defense of Marriage Act (DOMA), defining marriage as "a legal union of one man and one woman as husband and wife" and giving states the right not to recognize same-sex marriages performed in other states.⁹ Since then, little large-scale progress has been made. At this time, no state legally recognizes same-sex marriage, but Vermont comes close with its allowance of civil unions, which carry most of the benefits of marriage,¹⁰ and some large cities, such as Seattle and San Francisco, also honor domestic partnerships, which are written agreements that two people are in a committed relationship, conferring some of the benefits normally associated with marriage.¹¹ However, this spotty support is a far cry from the full-blown social, legal, and economic benefits provided by the marriages that committed same-sex couples so richly deserve. Clearly, same-sex marriage advocates have a long road ahead of them.

So why the push for marriage? Looking at the evidence and arguments for both sides, I find it much more difficult to understand the push against same-sex marriage. While there is a small but vocal minority of gay-rights advocates who oppose marriage on the grounds that it is discriminatory, historically oppressive, or too restrictive,¹² the vast majority of opposition seems to come from the religious right and those who are simply uninformed. Some common arguments include the following: "It would harm children," "Marriage is for procreation," "It would destroy the institution of marriage," "Marriage is traditionally between a man and a woman," and "It would show state approval of immoral acts,"¹³ but have also taken more prosaic turns, such as appeals to taxpayers' pocketbooks.¹⁴ Yet as appealing as these arguments may appear at first, they are not, insofar as the federal government should be concerned, valid. For instance, according to a technical report issued by the American Academy of Pediatrics, "Children who grow up with 1 or 2 gay and/or lesbian parents fare as well in emotional, cognitive, social, and sexual functioning as do children whose parents are heterosexual."¹⁵ As psychologist and lesbian mother April Martin says, "It is love--not biology--that makes a family."¹⁶

This brings us to the claim that marriage is for procreation, and therefore, since same-sex couples cannot procreate, they should not be allowed to marry, and the closely related argument that same-sex marriage would destroy the institution of marriage. My first reply to that is, "Marriage for procreation? Not anymore." The proponents of this argument sigh that that is exactly what is wrong with American society these days, even going so far as to say, "Presumptively fertile couples who marry but (without any serious medical or financial reason) do not intend to have children, are insidious enemies of marriage."¹⁷ There are a few deeply erroneous assumptions tied to this statement: first, that every heterosexual couple is capable of raising children well; second, that lack of desire for children denies a committed relationship, whereas having children is both proof and a guarantee of one; and third, that we really need as many children as would result if all heterosexual couples followed this line of reasoning. The fact of the matter is, underpopulation is no longer a problem, committed heterosexual relationships exist without children (and children without committed relationships), and not all heterosexuals make good parents. There is-or should be-much more to marriage than simply going forth and multiplying. As such, same-sex marriage should not be denied on the grounds of procreation. Instead, it should be promoted, if only because same-sex couples can then more easily raise the children produced by other people's careless procreation.

Some opponents of same-sex marriage claim that marriage is traditionally between a man and a woman. Assuming that they are right and John Boswell's contention that even the Catholic Church at one time respected same-sex unions is baseless, this does not automatically make their argument valid. Marriage has also traditionally been an institution in which women were viewed as property,¹⁸ and, in the United States, one in which often only members of the same race could participate.¹⁹ However, these aspects of the institution have been repealed because it was recognized that they were neither relevant nor right. By the same token, same-sex marriage should not be banned based solely on tradition.

There is also the assertion, made by California Representative Pete Knight, that same-sex marriage would cost taxpayers money.²⁰ In the first place, financial considerations are no way to decide very serious moral questions such as this, albeit often persuasive to money-conscious Americans. In the second place, this was a conclusion arrived at by taking numbers out of context from a study done by two professors, Sumner La Croix and Lee Badgett, comparing the costs to society and couples themselves of cohabitation versus marriage. They concluded that allowing same-sex marriage would actually reduce taxpayer costs by lessening the numbers of uninsured people and people who qualify for certain welfare programs.²¹ The economic argument is thus a red herring.

At the bottom of all these arguments opposing same-sex marriage is a very basic issue of morality. Since homosexuality is considered a sin in the Judeo-Christian tradition, the idea of the government's legitimizing it by legalizing same-sex marriage can be deeply offensive. But on what grounds is this belief based? Some scholars, such as Daniel Helminiak, suggest that it is a misunderstanding caused by poor translations, over-literal interpretations, and a failure to recognize the context in which the Bible was written. He says:

According to faith, it is God who creates us . . . So somehow God must be behind the fact that some people are homosexual. Then why should God's word in the Bible condemn homosexuality? There must be a mistake in the reasoning somewhere. Could it be that they are the mistake? . . . Some would believe so . . . but that cannot be. God does not make junk. So there must be another answer.22

His is an interesting and fairly novel approach, and it certainly bears consideration in the religious community. Yet in the end, it makes no difference whether or not Helminiak's analysis is accepted as the true one. Opponents of homosexuality have been able to provide no substantive evidence for the supposed harm homosexuals cause society. This is because homosexuality itself doesn't harm society; the harm is solely in people's bigoted reactions to it. Blaming homosexuals for homophobia is much like blaming Jews for anti-Semitism; it makes no sense. And because this country is run neither by the Mormons (who classify homosexuality as a sin) nor the Buddhists (who don't),²³ nor presumably any other religion, the government is left to decide its laws, not on the basis of what will placate people's religious sensitivities, but on the basis of what is good for society. And sometimes choosing what is good for society means offending people and upsetting tradition, as in the case of integrating public schools after Brown vs. Board of Education. And eventually, under the best of circumstances, such decisions are accepted as the right thing to have done. And while this prospect may be disturbing to opponents of homosexuality in general and same-sex marriage in particular, it is important for Americans to step back and ask themselves, "By opposing same-sex marriage, am I really benefiting society?" I would say that the answer is a resounding "No." By continuing to relegate same-sex relationships to an illicit, second-class level, the government tacitly endorses the perception that homosexuality itself is reprehensible, thereby indirectly blessing hate crimes as well as less violent discrimination against homosexuals. The inability to marry makes it more difficult for homosexuals to adopt and to arrange child custody in the event of a break-up.²⁴ People who think this state of affairs is beneficial to children should think again; despite cries of homosexual "indoctrination," the fact remains, as explored earlier, that homosexuals are capable of being good parents who deserve the same right to children that many less devoted heterosexuals have. Banning same-sex marriage also deprives committed same-sex couples of many important benefits, such as next-of-kin status, being on the spouse's insurance, property rights, and a simple feeling of legitimacy and security, that many married couples take for granted and that same-sex couples can only approximate through a number of legal documents that may not even be universally honored.²⁵ By rejecting the possibility of same-sex marriage, Americans are simply hurting people whose only crime has been to live their lives in the only way that is natural or honest for them. Is such action good for society? I say "No."

Although I would like to say that the federal government will soon see the error of its ways and repeal the Defense of Marriage Act, it probably won't happen anytime in the next fifteen years. Such a reversal would require a paradigm shift in the way America sees homosexuality, and while I think this too will happen eventually, now is not the time. The public still requires a vast amount of education about homosexual relationships, families, and wants, and when they realize that there are many similarities between these and their own, change may be more possible. Also, I think the repeal of DOMA would depend in large part on which party is in power, and just how gay-friendly they are. Although it will take years, numerous lawsuits, and an increase in popular acceptance of homosexuality, I do think that same-sex marriage can become a legitimate possibility. And that is as it should be.

April '02

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