Kristina Torres

The United States Government is Condoning Homosexual Prejudices By Not Allowing Homosexual Marriages

The United States Constitution states that all men are created equal. The Fourteenth Amendment to the Constitution declares that states are forbidden to withhold basic rights from citizens because of an arbitrary difference. That is, each citizen has equal protection under the law (Silverstein 610).

George Orwell stated in his book Animal Farm that “all [men] are equal, but some [men] are more equal than others” (133). Perhaps Orwell’s statement is more believable than we would like to admit, but this is how the United States government has represented the law to homosexuals fighting for equal rights.

The United States homosexual population is approximately four percent of the total, which also happens to be the same percentage as the Hispanic population (Silverstein 608). The Hispanic population is considered a minority group because of their percentage. Having minority status ensures that they will receive equal protection under the constitution. Unfortunately, the issue of homosexual rights has not been focused on until the past twenty to thirty years because courts and commentators have just recently begun to analyze the civil rights of homosexuals (608). Even though America’s homosexual population is significant, the reality is that throughout American history, the size of the discriminated group has never been relevant to the Supreme Court’s decision of the constitutionality of the discrimination (608). Since the government has not taken notice of the lack of civil rights for homosexuals, individuals have had to form court cases to gain equal rights. The focus of these challenges has been that homosexuals are not being protected under the Fourteenth Amendment.

The Fourteenth Amendment is increasingly being used to protect individual rights. Therefore, the United States Supreme Court developed a suspect classification test (1) to prove whether a person’s right to equal protection was violated. However, to fully understand the Fourteenth Amendment, the correct definition should be given. The Fourteenth Amendment declares the following:

“States are not forbidden to enact legislation which affects some people differently than others, the classification must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike.”

Therefore, if a state says that it has not violated an individual’s Fourteenth Amendment right in denying him or her marriage, then that state must show that a “fair and substantial” relation was in existence during the challenged time. In doing so, the state proves that the individual was not withheld a basic right due to prejudice. A test is then applied to determine whether a classification is suspect because of the nature of the disadvantaged group or because it threatened a basic civil right. The government must prove the existence of a “compelling state interest” that explains why the restrictions were implemented.

The difficulties that arise from the test lie in two areas. The first difficulty in finding a suspect classification is that the Supreme Court has not explicitly stated the exact qualities that make a classification suspect. The second difficulty of dubbing a classification suspect depends on whether or not the right is fundamental. This opens the process to more confusion.

There are five features that make a suspect classification (612). Homosexuals can be defined as a suspect class because they fulfill these legal requirements. The first of these classifications is based on characteristics that are intrinsic to the individual and beyond his or her control. Examples of this are race, illegitimacy, or alienage (612). Homosexuality is not a learned trait, rather it is inherent to an individual. Many people have debated this. The following quotations are representative of the two main arguments and show the extremity of the public’s feelings concerning homosexuality.

“There could be hundreds of millions of straight men walking around with this gay allele [variety of a gene] but who are straight simply because it didn’t penetrate.”

“Government has the power to influence trends in public attitudes. The present position of federal, state, and local governments on homosexuality encourages hostility rather than tolerance. Legalized same-sex marriage might reasonably be viewed as an important step in changing the attitude of the general public toward homosexuals. That step could contribute to the recognition of homosexuals as a different, but not shameful, segment of society.”

The reason each state is battling so much with the issue of same-sex marriage has to do with the definition of marriage, unchanged since the Constitution was first written. A marriage is defined as the union between a man and a woman (Phillips 82). This was officially amended in September of 1996, when Congress and President Clinton (3) signed the “Defense of Marriage Act” or DOMA, which limits the federal definition of marriage to heterosexual couples. It also allows the federal and state governments to ban recognition of same-sex marriages, and bars homosexual couples from the economic and legal protections of marriage (NGLTF). These include social security survivor benefits, inheritance rights, and veteran’s benefits. Other civil marriage rights include health-care benefits, income tax advantages, the right to bring wrongful death actions, and the right to make health-care decisions for an ill or dying partner (556).

Perhaps this is the definition in most dictionaries, but the fact remains that the definition of marriage has changed over the years. In addition to this, the legal and societal definitions vary. Marriage is now defined as a union of a man and woman. However, at one time it was when a woman was given to a man as his property. This may seem archaic and out-dated in our society. It is then feasible to say that perhaps the definition should again be expanded to adapt to today’s modern society. The legal definition of marriage only serves as a guide to what legal responsibilities and benefits a married couple has. The legal definition of consummation is “the completion of marriage cohabitation (i.e. sexual intercourse) between spouses” (Phillips 82). This definition does not state that sexual intercourse must be between a man and a woman. Also, a marriage is not invalid if it is not consummated (83). Therefore, by following the legal definition of marriage, the government is ignoring the many gay, lesbian, and bisexual couples.

Marriage is a life-long bond, which should not be withheld. This is true of heterosexuals or homosexuals. Marriage is a choice that two people make. It is not legal to ban an individual’s right to choose. Although there are options other than marriage for homosexual couples, such as cohabitation or a reciprocal beneficiary relationship, these are not the same. Under these relationships, homosexuals would not be afforded the benefits of a married couple. Also, these relationships do not give homosexual couples the recognition they are seeking (Henson 620). To take these advantages away from a couple is a violation of the Fourteenth Amendment.

It was not until 1974 that interracial couples were allowed to marry (Hovermill 479). The government’s hesitance in allowing African-Americans to integrate fully into a predominantly white society showed the public that it was allowable to treat the African-Americans differently. This is an obvious example of discrimination that most people would agree upon. However, when the focus changes to homosexuals, the government suddenly ignores this discrimination, as does a significant portion of the public. The courts argue that the situations are different. Prohibiting interracial marriages had been legal because both races were equally criminalized (479). However, all the courts in the United States, with the exception of Hawaii, state that same-sex marriage is illegal due to the definition of marriage, not because of a gender classification (479).

The importance of recognizing same-sex marriages goes beyond legal benefits. The majority of homosexuals resent being the focus of society’s prejudices (Silverstein 556). Hostile and derogatory labels only ensure that a gay, lesbian or bisexual will lose self-respect. To then have his or her relationship invalidated by not permitting marriage rights is blatant prejudice. If the United States legalized same-sex marriages, homosexual partners would be recognized as having a valid, important relationship. Discrimination in society would significantly lower because these rights would be recognition of gay and lesbian partners. The University of Louisville Family Law Journal documents this viewpoint in the following quote.

“Even while we resist the regimentation that marriage entails, we accept it as a sort of ‘gold standard’ that signifies the desire for deep and permanent commitment. To be barred from marriage to one’s chosen partner is to see one’s individual relationship trivialized, one’s personal commitment deemed unworthy of public acceptance.”

Not all lesbian and gay couples feel that it is necessary to have marriage rights. However, the choice should be available to those individuals who would like to marry.

Consequently, transsexual marriages are legal. California has not prohibited transsexual marriages, yet still prohibits homosexual marriages. In a transsexual marriage, a post-operative transsexual may marry an individual of the same chromosomal gender (Phillips 87). An individual may legally change his or her birth certificates to show their new gender identity. However, California does not require that a birth certificate be produced upon issuance of a marriage license (87). Therefore, the transsexual individual is actually the same gender as the individual he or she is marrying, but because the physical appearance is different, the marriage is allowed. Allowing this type of marriage violates the same reasoning used against homosexual marriages: gender. In the transsexual marriage, the biological gender of the two individuals is still the same; therefore, if two people are denied marriage because their genders are the same, then the same should follow with a person who is a post-operative transsexual.

Opposition to homosexual marriages also comes from many conservative religious groups. Although there is an increase in tolerant religious organizations, there are still some sects which are hostile to gays, lesbians, and bisexuals. Often these groups influence the government and society’s ways of thinking.

Focus on the Family, which is a Conservative Christian group, strongly opposes homosexual marriage rights along with equal parenting rights and allowing homosexuals into church. Several reasons for opposing homosexual marriages are stated in the following quotations.

“The legal and financial costs to society of marriage are balanced by ‘social benefits produced by successful marriages and parenting.’ Homosexual marriages would bring the same cost to society, but would have no balancing benefits.” (Focus on the Family, Q.R.D. Accessed November 1999)

“Legalizing same-sex marriages will weaken the traditional heterosexual marriage.” (Focus on the Family, Q.R.D. Accessed November 1999)

“Lesbians desire a sexual partnership with another woman. But that union cannot by itself cause procreation. Pregnancy within a lesbian relationship ‘while effecting no clear benefit, does have the potential for a great deal of harm.’” (Focus on the Family, Q.R.D. Accessed November 1999)

“Homosexuality is condemned by God, is unnatural, is caused by ‘gender identity and personal developmental problems’, and that homosexuals are highly diseased.” (Focus on the Family, Q.R.D. Accessed November 1999)

The first quotation, seen from an economic perspective, is entirely false. By not granting same-sex couples the right to marry, the government is losing money. Since homosexual couples can not be beneficiaries of their partner’s insurance policy, the government has to pay for more than one person and will incur more expenses than benefits (Gargano 71). The government also loses money because it cannot demand that a partner be responsible for his or her partner’s debts. If the couple had been married, then the government would be within its jurisdiction to demand the payment from the partner, but since marriage is barred, this can not take place. Another benefit for the state would be an increase in revenue due to the amount of homosexual couples, which would go to that state (PTFGL).

The second quotation states that if a homosexual couple was legally recognized as married, this would threaten a heterosexual couple’s marriage. This view comes from the misconception that if same-sex marriages are legalized, there will be an explosion of homosexual relationships and heterosexuals will be “converted” (Henson 575). If two people are bonded in matrimony and love each other, how can the marriage of another couple threaten theirs? Is a married heterosexual couple threatened when another heterosexual couple is married? How would this differ from a homosexual couple’s marriage? The institution of marriage will still be held to the same regard. Two people are still joining in front of a priest, pastor, rabbi, or judge. These two people are still falling under the same laws that other married couples fall under. There is no threat to heterosexual marriage if all these factors are the same.

Most religions which oppose homosexual rights rely on the third quotation’s argument; Homosexual couples can not procreate as heterosexual couples do, and this is the purpose of marriage. First, homosexual couples can procreate as heterosexual couples do. A homosexual couple can use artificial insemination or adoption just as a heterosexual couple can. Procreation between a married couple need not be from their own gametes. To say that the sole purpose of marriage is procreation is an out-dated viewpoint. Couples have the right to decide whether or not they want children. There are a significant amount of heterosexual couples that choose not to have children. If their right to marry was taken away because of this, society would be in disbelief. Therefore, it is not logical to deny homosexuals the right to marriage because they will not procreate. Having children is not a pre-requisite to marriage (Phillips 97).

The fourth quotation is perhaps the most hateful. There is no reference in the Holy Bible which reads, “Homosexuals are diseased and sinners against God.” There are many scientists, researchers, and homosexuals that have shown that homosexuality is genetically linked to an individual and is a natural characteristic. There is no disease that causes homosexuality. A heterosexual doesn’t just shake a homosexual’s hand and then wake up the next morning as a homosexual. Such conservative religious groups should perhaps begin reading scientific arguments and researcher’s findings. These religious organizations have helped to spread homophobia with their sermons and the outcome is a society that can not accept homosexuals. If these sects are concerned with “sinners of God”, then they should focus on the people of their religion that rape, murder, lie and steal. Those are just a little more sinful than loving a human being and wanting to commit to them.

However, there are many sects that welcome homosexuals. Some examples of these are the following: The Metropolitan Community Church, Eastern and Orthodox Christian Gay Men and Women, and the Association of Welcoming and Affirming Baptists. These groups allow homosexual priests or pastors and they also allow same-sex marriages (NGLTF). The Metropolitan Community Church has performed mass marriage ceremonies, where over 200 same-sex couples gathered to be married. Even though these marriages were performed by a recognized religious institution, the marriages were still not recognized by the United States government.

Fortunately, as more people become less homophobic and more open-minded, there are many religious groups changing their policies towards homosexuals. With the increase in religious groups that accept same-sex marriages, it is only inevitable that the government recognizes this and legalizes same-sex marriages.

Hawaii’s Baehr v. Lewin (1996) was not the first same-sex marriage case to be brought to court. However, it was the first in which the judge ruled that Hawaii could not deny a marriage license to a homosexual couple because that would constitute sex discrimination (Frum 30). Although other lawyers had tried this argument, it wasn’t effective because other states had failed to read their equal rights clauses in their state constitutions as literally as they had in previous equal right suits (31). The Hawaiian case is now pending a final ruling from the Supreme Court.4 This court case is what spurred DOMA. Although the government supports DOMA fully, society is not as interested. The Mellman Group took a poll after Congress introduced DOMA in 1996 (hrcusa.org). It found that most of society felt there were more important issues than defining marriage as a union between a man and a woman (hrcusa.org). However, after the 1996 presidential election, Greenberg Research found that 56% of the US supported DOMA. These polls show that society partially agrees with homosexual marriage rights, but is still indecisive. As society becomes more diverse and more couples are seen.

Together, society will begin to support same-sex marriages more (Henson 574). Unfortunately, the laws are always behind society (574). Therefore, the more support society gives towards legalizing same-sex marriages, the quicker the government will reform its laws.

Although the homosexual population can be proven to be a minority classification, the government still refuses to afford these individuals the same equal protection that other minority groups receive. The government also refuses to recognize that almost half of society believes that homosexuals should be given the choice of marriage. Until the government legalizes same-sex marriages, people will perceive homosexuals as different and continue to persecute them. This is not fair to those individuals. Society and the government can not persecute any one because of sex, religion, race, or ethnicity. Once the government promotes equal protection, society will follow.

(1) A legal test developed by courts, which is used to define whether or not a group is disadvantaged and being denied a basic civil right.
(2) Although there have been homosexual individuals in office, very few have been openly gay or lesbian for fear of losing elections. Also, there have been and still are supporters of gay or lesbian rights.
(3) President Clinton and the Leadership Conference on Civil Rights support the Employment Non-Discrimination Act or ENDA. It was introduced as a bill to protect homosexuals, heterosexuals, and bisexuals in the workplace in 1970. It was not passed, but a shortened version was brought before Congress in 1996. Since then is has been brought to Congress's attention several times.