Acceptance of Same-sex Marriage or Civil Unions; Fighting Yesterday's War

In a previous post, I suggested that sincere devout people, conservative Christians for the most part and predominately supporters of Republican candidates, have been and are being cynically used for partisan purposes. An example of this manipulation could be found in the alleged "War on Christmas" discovered and promoted by commentators on Fox News.

Another area surrounds the idea of marriage between individuals of the same sex.

Public opinion in large measure depends on what the relationship is called. A poll conducted by the Pew Institute last year indicated, a clear majority (56%) continues to oppose allowing gays and lesbians to marry while 35% express support. But nearly as large a majority (54%) supports allowing homosexual couples to enter into legal agreements that would give them many of the same rights as married couples.

In all cases, there are two aspects of "illegal marriages" in the United States. First, is the marriage/union legal where celebrated? Second, will the marriage/union, valid where celebrated, have the parties' status recognized in another jurisdiction?

The term "marriage" is a charged one. What I refer to are formal, legally recognized, unions between individuals of the same sex. From these unions flow legal rights, including the right of intestate inheritance, the right to participate in advance care and medical decisions - in short two people living as a family. (Of course, one of the consequences is the right to dissolution of the relationship in a procedure akin to Divorce.) Regardless of the attempts in some jurisdictions to forbid such unions, the issue has been joined and there will come a time when same-sex couples will be able to enter into marriage or quasi-marital relationships; the idea of forbidding these will be as foreign as the once common laws preventing mixed race marriage. (For my present purposes, I will refer to these arrangements as "civil unions".)

It is, in my opinion, appropriate to consider the various anti-miscegenation laws in effect in the United States dating back to colonial times and continuing through 1967. Starting in the min-seventeenth century, colonies in America started passing laws forbidding marriage, and sexual relations, between white persons and emancipated blacks. It should not be assumed that white-black relationships were the only ones prohibited, and in many cases, criminalized. There were, also, prohibitions against marriages between whites and Asians, Native Americans and others.

The rationale was similar to the arguments against same sex unions: it violated "God's Law"; it was prohibited in the Bible, the principal purpose of marriage, procreation, could not take place. These are, as my friend Ahmed would describe them, are "strawmen". Taking each in turn, any violation of Divine Law is punishable by one's Church or religious authorities or, perhaps, after death; it is not a concern for civil authority. While homosexuality is prohibited in the Judeo-Christian Scripture, and, indeed, conservative Christians, Jews and Muslims all, to some degree, reject homosexuality and, perforce, mixed-race and same-sex marriage, more liberal faithful are less dogmatic, suggesting that there are many commandments that are no longer enforced, as, for example, the prohibition of wearing fabrics of mixed materials and, as to Christians, dietary laws imposed on Jews and Muslims. As to the impossibility of procreation, should we prohibit marriage by an older woman past menopause?

As noted above, the first laws criminalizing marriage between whites and blacks were enacted in the mid 1600's in Virginia and Maryland, colonies where slavery was an important part of the economy. Originally the laws applied to slaves but were expanded to all inter-racial relationships. The trend was adopted in colonies where the issue of slavery was not present, namely Massachusetts and Pennsylvania. After Independence, more and more states enacted what were referred to as anti-miscegenation laws; by the early part of the twentieth century, thirty states had adopted some form of such laws.

Following the end of World War II, most non-Southern states had begun repealing the anti-miscegenation laws, part of a growing strength of the civil rights movement. A 1958 Gallop poll, however, showed that a vast majority of white Americans saw nothing wrong in the laws. Finally, in 1967, the United States Supreme Court overturned previous decisions and declared all such laws unconstitutional.

I submit that the laws prohibiting same-sex unions, regardless of terminology, to be as discriminatory as the now discredited anti-miscegenation laws. These "marriages" or "civil unions" will one day be as completely recognized as valid and given recognition. This is the obvious trend in the United States and elsewhere in the world.

Unions between two members of the same sex in some sort of ceremony -- religious or otherwise -- existed for many years before anyone sought to gain legal recognition for such unions. Generally, these unions were kept private, with knowledge limited to immediate friends and family members. Then, in 1971 a suit was filed in Minnesota seeking to legalize a same-sex marriage was filed. Baker v. Nelson was inspired by the 1967 U.S. Supreme Court decision in Loving v. Virginia. In Loving, the Supreme Court invalidated a state statute that prohibited interracial marriage. The court ruled that to deny marriage on the basis of race was a violation of the constitutional principles of equal protection and due process of law, because the law had "no legitimate purpose independent of invidious racial discrimination."

Both the Minnesota court and the later Washington Supreme Court were not impressed by this argument! Both courts determined that homosexuals had no constitutional right to marry, marriage being a man-woman relationship. The Washington Supreme Court determined that the state's Equal Rights Amendment could not be held to allow homosexuals the right to marry. The law provided protection only on the basis of sex, not sexual orientation.

In 1993, Hawaii's Supreme Court held that homosexual and heterosexual couples could enter into a formal relationship - not "marriage" and not "civil unions" - but something called a "Domestic Partnership" and legislation was passed. Right now, only Massachusetts affords complete marriage to same-sex couples; Vermont, Connecticut and New Jersey permit Civil Unions and California, Hawaii and Maine offer some sort of legal arrangements.

In the United States major interstate issues remain to be resolved. If a same-sex couple enter into a Massachusetts marriage and then move to, say, Florida, may they obtain a Florida divorce? If one party dies a Florida resident, would their surviving partner be allowed to elect a spouse's share of the estate? All of these issues will, eventually, be resolved. But, more and more states are grappling with the issues.

Internationally, an increasing number of countries will issue marriage licenses to same-sex couples, among them being the Netherlands and Canada. Different terminology and some limited rights are afforded in the United Kingdom, France, Germany and Switzerland among others. Some countries, such as Israel, will not permit same-sex marriages in the country but do recognize civil unions and marriages celebrated elsewhere.

I understand and appreciate the strong religious based viewpoints of those who find same-sex relationships loathsome and abominable. Unfortunately, the battle is over. Just as the anti-miscegenation laws finally fell, albeit after hundreds of years, so the bar against allowing marital-spousal like rights for committed homosexual couples will eventually disappear.