Gay Marriage in America

Interactions between humans have been controversial, dangerous, mundane, and inspiring since the beginning of time. Concepts such as love, war, sex, and marriage have been the stuff of great novels, fascinating history, and grim reality. When human beings come together, the results are beautifully varied and sometimes taboo. Such is certainly the case with relationships involving the same sex. Throughout history, homosexuality has been present, hidden, accepted, criminalized, and sometimes even encouraged. Today in America there exists a robust community of people who live the homosexual way of life, though whether this is choice or by nature is an argument that continually rages. Like all Americans, they too have come to accept and appreciate the freedoms of the U.S., and request to be a part of them- including the union of marriage and the legal rights that heterosexual couples are currently exclusively entitled to.

Legislature concerning homosexuality and pederasty in particular dates back much further in history than is commonly known, as far back as the Fifth century B.C. in ancient Greece and Rome[i]. The practice of pederasty had several laws regulating romantic involvement between young adult men and older men, as well as moralistic "rules" involving the seduction, such as the older man was to always respect the wishes of the young man's father. Although viewed as humorous to most but the upper class and often a joke displayed in public theaters[ii], same-sex love was prominent and even encouraged in some situations, such as with the Spartans, the self-proclaimed "protectors of Greece". To this warlike group, love between men was a way to share secrets and intimacy with another who they could relate more closely to, as women did not participate in wars or fighting. In Sparta, pederasty was also the law, seen as an acceptable way to cap the population without attempting to quell the desires of men[iii]. Continuing through history to the present, homosexuality itself has been recorded in every major country of the world, with greatly varying opinions and antagonism towards those to practice it. Notably, there are periods of both wide-spread acceptance and condemnation of the act.

In the U.S during the 1920's, gay bars were plentiful and homosexuality was written of, sang about, and generally expressed openly[iv]. By the 1930's however, the country again turned to conservatism. In 1948, a time when sexuality was rarely spoken of, Dr. Alfred Kinsey released his incredibly controversial book "Sexual Behavior in the Human Male", which suggested through his research that homosexuality was far more prevalent in the American lifestyle than had previously been thought[v]. This open-mindedness that was shown to sexual research is hotly contested even today, but the effects were felt substantially in the following years leading into the 1960's with the "sexual revolution" and the Stonewall Riots[vi]. Since the 60's, there have been a number of Supreme Court cases that have both benefited and hindered the homosexual community. In 1967, in the Supreme Court case Boutilier v. Immigration Service[vii], a young gay man was deported back to Canada after having been reported homosexual, and therefore having a "psychopathic personality", as homosexuality was filed under the psychiatric association as a form of mental disorder. The Immigration and Nationality Act[viii] effectively barred homosexuals from immigrating into the U.S. being characterized as psychopathic, and was not lifted until 1991. This case clearly showed the scientific community's viewpoint on homosexuality to be that of a disorder, and as such leading mental doctors accepted this. The law also took the professional's opinions at face value, making homosexuality legally abnormal. The American Psychological Association did not formally remove this definition until 1973[ix].

Bowers v. Hardwick[x]in 1986 criminalized oral and anal sexual acts between homosexuals even in their homes, stating that homosexual citizens had no right to privacy. This was overturned seventeen years later in the case of Lawrence v. Texas[xi]in 2003. In Romer v. Evans[xii], a Colorado amendment that would have barred any discrimination towards homosexuals based on their sexual orientation was deemed unconstitutional.In the case of Oncale v. Sundowner Offshore Services[xiii], sexual harassment on the job was amended to also include harassment between members of the same sex, and set a new standard for the analysis of possible sexual harassment in the workplace by any sex to any other sex. In June of 2000, the Boy Scouts of America won a case in the Supreme Court that they had a First Amendment right to exclude or refuse membership to anyone based on sexual orientation, or any other characteristic or belief that contradicted their personal values. Former Eagle Scout James Dale's membership was revoked after the group found out he was both a homosexual and a gay rights activist[xiv].

Perhaps the biggest impediment to the progress of homosexual rights came on September 21^st, 1996 when the Defense of Marriage Act[xv], or DOMA, was signed into law by President Bill Clinton. DOMA defined marriage as being between one man and one woman only, and declared that the word spouse only applied to a person of the opposite sex. It also stated that the US government was not to recognize any marriage uniting two peoples of the same sex on a federal level, even if a state were to deem the marriage official. Massachusetts was the first state to make gay marriages official starting on November 18^th, 2003. This was followed by California, which on May 15^th 2008 lifted a ban on gay marriages[xvi], and approx. 18,000 homosexual marriages commenced. Barely four and one-half months later the ban was restored, leaving thousands of newlyweds in doubt as to their rights and legal status[xvii]. Most recently, Connecticut also allowed gay marriage, beginning on October 10^th, 2008[xviii].

The plight of the homosexual community and those opposed to it is both an issue of human rights and religious freedoms. Homosexuals generally believe that they should be entitled to and be able to benefit from the freedoms, rights, and protections afforded to all Americans under the Constitution. They do not believe that their lifestyle denotes immorality or a breaking of tradition, but is either a choice or a natural function in their lives and should not be left to the government to decide how they live. They believe marriage is a right to be afforded to all people.

Opposition to allowing homosexuals to marry generally employs two justifications: that homosexual sex cannot produce children and is therefore "unnatural", and that many Americans are Christians and homosexuality is condemned in the Bible. Contrary to homosexuals, anti-gay supporters believe that creating a new type of family of same-sex parents will lead to a destruction of traditional American values. Others also speculate on the psychological implications of children adopted by same-sex parents, as legalization of marriage for gays would make it easier for adoption to occur. Lastly, some who oppose homosexuality in general still equate pedophilia and child molestation with homosexuals, implying that legalizing gay marriage and acquiescing to gays will cause molestation in schools and other professions to erupt[xix].

While both sides of the homosexual marriage debate have both legal and inherently moral viewpoints, the question remains as to whether or not the government itself should stand as a regulator for public morality, which invariably involves religion. While during the 50's-80's some still viewed homosexuality as a pathology, today is has been largely refuted, leaving only a moral and religious undertone for discrimination against homosexuals. Being that the Constitution calls for "separation of Church and State", if the government should be participating in this debate is a furiously argued question.

The contention over gay marriage is very real and creates a rather extreme dilemma for those wishing to bring about a creative solution that is able to satisfy all sides of the debate equally. According to a paper recently written by Thomas M. Messner[xx] of the Heritage Foundation, right wing politicians and supporters believe that the spread of gay marriage on a nation-wide scale will create major dilemmas for those who only believe in heterosexual marriage. These include: the possible censorship and even loss of employment for those who are vocal about their support of traditional marriage, possible discrimination against people who show a public dislike of gay marriage, and the loss of government benefits to institutions that hold to their belief in hetero-only unions. Homosexuals hold the belief that until they are granted the same rights as heterosexuals; they will be consistently seen as second class citizens whom others can discriminate freely against.

With views that are held as intensely by both sides such as these, it is apparent that no quick and easy solution will be found that does not include a drastic rewriting of the law. Civil unions that are now available in states such as Vermont and Hawaii were seen as a way to give gay couples something close to marriage with all of the benefits that are afforded to heterosexual couples, albeit at a state level[xxi]. However, these quasi-marriages which are not recognized by the federal government have not been seen as good enough by the homosexual community, who desire nothing less than a fully legal union. With the filing in the California Supreme Court of an appeal to the reinstatement of the same-sex union ban, this issue has risen to a level of nationwide notoriety that will only be quelled by a US Supreme Court decision. An eventual precedent being set by this country's highest court as to whether gay marriage will be recognized on a federal level is the only way to give state courts the example that is needed for them to make informed decisions regarding this fierce and often dangerous debate.

Over eighty years ago, the Racial Integrity Act of 1924[xxii] was passed by Virginia Legislature. Among other acts that would now be looked upon in horror by the average person, such as the involuntary sterilization of those deemed mentally incompetent or ill, the Act decreed that marrying between whites and non-whites was to be considered felonious. In 1967 this law was finally overturned in Loving vs. Virginia[xxiii], a case heard by the United States Supreme Court. In today's society that is rich with inter-gender marriages that are consistently changing the ethnic landscape of this country, it is nearly unthinkable that any type of marriage besides that of the same sex would be unlawful.

Within the tightly focused microscope in which we view current events, the issue of gay marriage will appear to some to be offensive to their morals or religion, just as the thought of a white man marrying a black woman would have been to many in 1924. It is only when the focus is widened and an historical context is given that the level of discrimination behind the ban on same sex marriage becomes apparent. The attempt by the religious movement to purely define marriage as a union between only a man and a woman is a perfect example of utilizing semantics to discriminate in a politically correct way. Finally, Mr. Murren's paper provides the reader with what the true threat that same sex marriage poses to religion in the United States really is. The religious right essentially fears that the acceptance of gay marriage on a national scale will create an environment that will discriminate against them for their own religion-based discrimination of homosexuals. With a non-biased, non-religious U.S. Supreme Court decision ending the conflict between the legalization and banning of gay marriages, an enormous chapter in the human rights struggle can be closed, and yet another precedent can be set in the division of church and state.

[i] Pickett, B. (2006, November 26). http://www.science.uva.nl/~seop/entries/homosexuality/>

[ii] NationMaster. (2003-2005). < http://www.nationmaster.com/encyclopedia/Athenian-pederasty>

[iii] Wikipedia. October 12, 2008.

[iv] Wikipedia. (n.d.).

[v] Wikipedia. (n.d.).

[vi] Nationmaster. 2003-2005. http://www.nationmaster.com/encyclopedia/LGBT-history>

[vii]

BOUTILIER v. IMMIGRATION SERVICE, 387 U.S. 118 (1967)

[viii]US Citizen and Immigration Services. (1952)< http://www.uscis.gov/propub/ProPubVAP.jsp?dockey=da248c219560fda2f17211a6e6dfb763>

[ix] Gregory M. Herek, P. 1997-2008. http://psychology.ucdavis.edu/rainbow/HTML/facts_mental_health.HTML>

[x]Bowers v. Hardwick, 478 U.S. 186 (1986)

[xi]Lawrence v. Texas, 539 U.S. 558 (2003)

[xii]Romer v. Evans, 517 U.S. 620 (1996)

[xiii]Oncale v. Sundowner Offshore Services, 523 U.S. 75 (1998)

[xiv] BOY SCOUTS OF AMERICA et al. v. DALE, No. 99-699

[xv] Wikipedia. (n.d.). http://en.wikipedia.org/wiki/Defense_of_Marriage_Act>

[xvi] Dolan, M. (2008, May 16).

[xvii] Jessica Garrison, C. M. (2008, November 5).

[xviii] wikipedia. (n.d.). http://en.wikipedia.org/wiki/Same-sex_marriage_legislation_in_the_United_States_by_state>

[xix] American Family Association. (2003-2005). http://www.nogaymarriage.com/tenarguments.asp>

[xx] Messner, T. M. (2008, October 30).

[xxi] wikipedia. (n.d.).

[xxii] Wikipedia. (2008, November 15). http://en.wikipedia.org/wiki/Racial_Integrity_Act_of_1924#Carrie_Buck_-_The_Test_Case>

[xxiii]Loving v. Virginia, 388 U.S. 1 (1967)