Same-Sex Marriage Part 2

The following is a paper which I prepared for school.  It was specifically addressed at DOMA and many of the issues dealing with same-sex marriage.  If there are inconsistencies with my position in this and in “Same-Sex Marriage Part 1” you may assume that part 1 more accurately states my opinion.

 

United States policy is currently that no State, territory, or tribe need recognize unions between persons of the same sex which are performed or termed as marriage in another State. Furthermore, such states need not recognize any right or claim attached to such a union. In addition, current policy under the Defense of Marriage Act defines marriage and spouse, in the context of all federal acts and regulations, as regarding legal unions between one man and one woman. A repeal of such provisions would force all states to recognize same-sex unions performed and termed marriage in another state and to afford them the same privileges and benefits as other married couples within their own boarders. It would also cause the federal government to grant the same privileges and incentives to all relationships termed marriage by a state, territory, or tribe.

Proponents of this bill favor such a repeal because they believe that the current policy denies rights to those of the same sex who desire a legal union that can be recognized by the government, themselves, and their fellow citizens as marriage and therefore equal in every way to marriage between one man and one woman. Some on their side of the argument would add that marriage itself is a right which can be denied by some states because of current legislation. The proponents of this bill also believe that the current law is unconstitutional and that a retraction would fulfill the constitutions intent to protect the right of minorities and create uniformity in the nation.

The reasons I oppose this bill may be compressed into three categories. First, the basic assertions behind the bill are incorrect. Second, the benefits which it is supposed to create are outweighed by the costs to society it will likely create. Last, the truly beneficial results of this bill could be accomplished with less damage to the framework of society.

The principles behind a repeal of DOMA are based on the concepts of value, justice, rights and liberty. As in all arguments that deal with such principles, it is necessary to gain a conception of them from the ground up in order to ensure the foundation is sound. In order to do this, we shall begin by creating a framework of definitions through a logical examination.

A couple quotes from prominent philosophers will grant clarity and authority behind some of what will later be written on this matter. “The protection of different and unequal faculties of acquiring property…from which the rights of property originate… is the first object of government” (Madison, Federalist 10 p. 55); “Who wills the end, wills also the means” (Kant, Groundwork p. 84-85).

{Civil Rights and Civil Liberties}

The average American often confuses the terms of civil rights and civil liberties. Even experts in the legal field find difficulty in setting a clear and standardized definition (USHistory.org, 2012; Kopko Law, 2012). Through a synthesis of the definitions provided by legal scholars, and aided with the light of political philosophy which has served as a basis for Anglo-American law, we can create our own satisfactory explanation of these terms.

We can distinguish these ambiguous concepts by saying that civil liberties regard protections we have from governmental interference in our lives and that this protection is to result in a just order as could be found in the state of nature.* Civil rights, on the other hand, regard a “right” to government involvement which creates (and judges) merited opportunity in such areas as housing, education, and employment. We can also consider these in terms of what the founders termed our God given and natural rights to life, liberty, property, and the pursuit of happiness. If we do this, we can see civil liberties primarily regarding liberty, and civil rights regarding the other areas.**

*The state of nature is a concept promoted by John Locke and Jean Rousseau. It is an historical set of affairs (which we may also consider as hypothetical for our own society) that existed prior to consensual acceptance of a social contract and the creation of a society. When we enter into a society we give up a portion of our liberty to preserve our other rights (Rousseau, S&PP 213-214).

**In order to make correct judgments going forward we must recognize the need to separate protections of life, the ability to earn property, and the ability to pursue happiness because in the difference between the foundations of each principle and because of the absurdity in thinking true happiness comes through material ownership. Also, we must recognize that money counts as property and not just as a means to property (if this were not so, monetary taxes would be wholly unjust.)

{Is Marriage a Liberty or Right?}

Some legal scholars regard marriage as a civil liberty and the privileges attending it as civil rights. I contest the first definition and qualify the second. First, marriage does not fit within the definition of civil liberties as non-involvement from government concerning liberties which exist in the state of nature and are not sacrificed but protected by the government of a society we join. Marriage is in fact a unique institution of union that is created by a religious or political society.* On the other hand, general unions** between people can exist in the state of nature, and if they do not harm the liberties of others they are also recognized in society.*** We may understand that old Supreme Court decisions meant a formal union when they wrote “marriage” because at that time it was the only form of formal union with domestic connotations.

Skeptics may ask if, because it is not a civil liberty, marriage could be termed a civil right. We can safely believe that it cannot because few, if any, legal scholars count it as such, and because it does not directly enjoin an equalization of opportunity for prolonging life, obtaining property through meritorious effort, or enhancing happiness. Marriage, as a term, cannot reasonably be expected to enhance happiness when it is applied to a union. Some would say that the formality of it could increase happiness, but there are, or should be, other means of formal unions.

 

* Voting has correctly been attributed to the category of civil rights by some and civil liberties by other legal scholars for differing reasons. In its categorization as a civil liberty, marriage differs from voting because voting is the only way to express our natural legislative capacity while in society (Jefferson, Essential Jefferson p. 14). Marriage is not our only way to express our capacity to commit to or agree with another person for utility, pleasure, or love.

**Aristotle says that there are three kinds of unions or friendships people may engage in: utility, pleasure, and virtue (or love) (Aristotle, Ethics p. 146-147)

***The protection society gives to such unions consists in the rights to assemble peaceably, speak freely, and have privacy (is so far as privacy is extended by implications of protection from unreasonable searches and seizures.)

{The difference between privileges and incentives}

The second concern is if the privileges attending marriage should be counted among civil rights. In order to answer this we must distinguish the privileges attending marriage and the incentives to join in marriage. Privileges in this case could be termed as fair givens of a committed relationship between persons with the intent to stabilize that specific relationship by increasing commitment or allowing such commitment to be shown to each other. These privileges, or benefits, are generated by the nature of the concept and contributes to its continuance. Incentives, on the other hand, are designed to help create a commitment to being in a union with another person in general and for a purpose which that type of union is best able to bring about. (They are generated outside the concept of the union itself and contribute to an indirectly connected and finite end.)

For example, hospital visitation rights count as privileges because they promote the commitment in the union by allowing it to be shown.* Tax breaks count as incentives in part because they do not connect one to their specific partner, and also because they are meant to help the unique type of union given it to achieve beneficial ends for society which it is normally and naturally merited to do.

*Medical benefits through the partners employment are a borderline concept but can be counted as a privilege and civil right (insofar as they do not infringe on anothers civil liberties) because they increase the commitment to being in a union with a specific significant other and contribute to our most basic end/right of life.

{Qualities of a Civil Right}

Civil rights are not attempts to create unmerited equality, but are a statement and protection of proper ways to determine merit for the desired method of obtaining the essential ends of life, property and pursuit of happiness. In considering housing we see that civil rights provide us a protection against being judged unmerited of obtaining housing (the method to the end of life) because of our skin color. It would be just as wrong to deny this means (housing) to everyone as to one group.

{Privileges are rights, incentives are not}

While it is an abstract statement whose truth can only be seen when applied to specific cases, we can say that if we only valued the inseparably connected ends/ results/ purposes of the item (union, employment, etc), and would count it as wrong to take away the means (to obtain or enhance the end) from everyone seeking that item, then it is a civil right to have those means protected. In the case of unions, the privileges are inseparably connected with the union itself, or, the contributing means are inseparably connected with the purpose of the union (Recall that he who wills the ends is naturally willing the means). The inseparably connected purposes of a union of love are commitment and love. Incentives, on the other hand, would not be morally wrong to deny to everyone. Like subsidies they are, as we have indicated, wise policies determined by society’s judgment of merit to obtain certain ends.

{Conclusion thus far}

Marriage is the term which society gives to a unique type of formal union which they have judged worthy of incentives. Section 3 of the Defense of Marriage Act maintains this distinction. If there are any negative side effects, the baby should not be tossed with the bath water.

{Same-Sex Marriage and the Fourteenth Amendment}

The fourteenth amendment to the constitution contains two clauses which could be seen as constitutional grounds to grant the term of marriage to homosexual unions. The first is the privileges and immunities clause. An online legal dictionary states:

The Fourteenth Amendment’s Privileges and Immunities Clause has virtually no significance in Civil Rights law. The clause states, “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” This clause protects a person’s rights as a citizen of the United States from unreasonable State Action or interference.

The privileges and immunities of U.S. citizenship that cannot be unreasonably abridged by state laws include the right to travel from state to state; the right to vote for federal officeholders; the right to enter public lands; the right to petition Congress to redress grievances; the right to inform the national government of a violation of its laws; the right to receive protection from violence when in federal custody; the right to have free access to U.S. seaports; the right to transact business with and engage in administering the functions of the U.S. government; the right to have access to federal courts; and the privilege of the writ of habeas corpus (The Free Dictionary: Privileges and Immunities, 2012).

From this it would seem clear that the Privileges and Immunities Clause fits under our definition of protecting civil liberties.

The equal protection clause is a more complicated matter. The Supreme Court has created differing tiers of scrutiny for determining the constitutionality of legislation. According to the online legal dictionary:

Under the first tier of scrutiny, known as Strict Scrutiny, the Court will strike down any legislative classification that is not necessary to fulfill a compelling or overriding government objective. Strict scrutiny is applied to legislation involving suspect classifications and fundamental rights. A Suspect Classification is directed at the type of “discrete and insular minorities” referred to in the Carolene Products footnote. A fundamental right is a right that is expressly or implicitly enumerated in the U.S. Constitution, such as Freedom of Speech or assembly (The Free Dictionary: Equal Protection, 2012).

Some claim that same-sex marriage falls under the category of strict scrutiny because marriage is a fundamental civil liberty or civil right. For this reason, among others, we have already shown that it is not.

Another determinant for the level of court scrutiny is if the classification created by legislation is suspect. In an article in the Pepperdine Law Review entitled “Equal Protection, Same-Sex Marriage, and Classifying on the Basis of Sex,” Mark Strasser notes that one prominent feature of a suspect classification is that “the defining characteristic of the group must not bear a rational relationship to a legitimate state purpose” (Vol 38.4, pg 1024) Strasser also notes that:

The Court has offered examples of suspect status-race, religion, nationality, and alienage -and examples of quasi-suspect status gender and illegitimacy. While members of the Court have sometimes suggested that other classes, “not now classified as ‘suspect’ . . . are unfairly burdened by invidious discrimination unrelated to the individual worth of their members,” the Court has been reluctant to recognize new suspect or quasi-suspect classifications (Vol 38.4, pg 1025).

 

These quasi-suspect groups often fall under a tier of scrutiny called heightened scrutiny. Under this level of scrutiny the government must “demonstrate that the classification is substantially related to an important societal interest” (The Free Dictionary: Equal Protection, 2012).

I would argue that the distinctions made thus far have taken same-sex marriage out of the realm of strict or heightened scrutiny. In fact “the United States Supreme Court has heard cases involving members of the lesbian, gay, bisexual, and transgender (“LGBT”) community and has never recognized that orientation triggers intermediate or strict scrutiny” (Strasser, Vol 38.4, pg 1027). Instead, they have applied the third tier of scrutiny. This scrutiny is known as the rational relationship test.*

The rational relationship test permits the legislature to employ any classification that is conceivably or arguably related to a government interest that does not infringe upon a specific constitutional right. An overwhelming majority of social and economic laws are reviewed and upheld by courts using this minimal level of scrutiny (The Free Dictionary: Equal Protection, 2012).

*Under this level of scrutiny, the burden of proof rests on the party making a challenge to a laws constitutionality. While I will maintain that same-sex marriage falls under this category, I will also provide evidence that could meet the challenge of heightened scrutiny.

{DOMA and the Full Faith and Credit clause}

Another attack upon DOMA has been that its section 2, allowing states to not recognize same-sex marriages performed in other states, is unconstitutional because it goes against Article 4: Section 1 which states, “Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof” (THOMAS, 1996). The second statement in this section seems to clearly give congress the power to qualify the public acts, records, and judicial proceedings which other states must give full credit to, and to determine the effect of what giving full credit will do. In addition, there is “a long-held standard of American case law known as the ‘public policy exception’” which “exempts any state from recognizing a law from another state if it is found to be ‘offensive’ to the receiving state’s public policy” (The Defense of Marriage Act, PBS).

This public policy exception applies to laws and records, but there are other exceptions to the judgments of another state. The Supreme Court, in Pacific Employers Insurance v. Industrial Accident wrote:

[T]here are some limitations upon the extent to which a state may be required by the full faith and credit clause to enforce even the judgment of another state in contravention of its own statutes or policy. See Wisconsin v. Pelican Insurance Co., 127 U.S. 265; Huntington v. Attrill, 146 U.S. 657; Finney v. Guy, 189 U.S. 335; see also Clarke v. Clarke, 178 U.S. 186; Olmsted v. Olmsted, 216 U.S. 386; Hood v. McGehee, 237 U.S. 611; cf. Gasquet v. Fenner, 247 U.S. 16. And in the case of statutes…the full faith and credit clause does not require one state to substitute for its own statute, applicable to persons and events within it, the conflicting statute of another state, even though that statute is of controlling force in the courts of the state of its enactment with respect to the same persons and events (Pacific v. Industrial 306 U.S. 502).

Doma provides an additional barrier against laws which conflict with the public policy exception, and prescribes limits on the acceptance and effect of the judgments of other states, thus protecting one state from being forced to accept a court declaration of another state that same-sex marriage is legal.

Not only is the second section of DOMA legally permissible under the constitution, but it also fits with the intent to preserve states rights to govern in areas which did not affect other states and to create uniqueness in the states which would allow them to serve as experiments. In 1932 Justice Brandeis wrote: “It is one of the happy incidents of the federal system that a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country” (Gardner, The “States-as-Laboratories” Metaphor, p.475). While the concept of states as “laboratories of democracy” came about in a dissenting Supreme Court decision, it is one I believe most of the founders would agree with and has been upheld in concurrence to Supreme Court decisions such as in United States v. Lopez where Justice Kennedy (with Justice O’ Connor joining in concurrence) said that the court’s decision to strike down a federal law criminalizing gun possession near a school was required by federalism, that the “the States may perform their role as laboratories for experimentation” (United States v. Lopez, 1996).

In addition to the common benefits of social and economic experimentation:

Federalism is sometimes said to allocate certain power to the states rather than the federal government to maximize social utility-that is, to achieve a version of the common good. It does so because, to the extent that policy preferences vary somewhat from state to state, a single national policy is likely to produce lower overall levels of satisfaction than a set of state policies more closely tailored to the particular preferences of citizens from various states. (Gardner, p. 487)

{Negative Consequences of Repeal: Groundwork}

Beside a shoddy foundation of principle, USU 22 would also incentivize relationships that have negative consequences. Without DOMA, all same-sex unions (if not any form of union) that desired it could receive the label of marriage and the incentives which come with it. I will focus on only two reasons why same-sex unions do not merit the incentives that opposite-sex marriage does.

We discussed how one purpose of incentives was to help create a desire for a type of union determined to benefit society while privileges were meant to perpetuate a specific union. This applies to the question of if our society values promoting homosexuality. I do not wish to be misunderstood as saying that all or even most homosexuals are such because of overt choice. There are, however, four things we should recognize before continuing on: first, that there is a line between discouraging and not encouraging; second, that there are a portion of homosexuals who claim choice as the cause of their feelings; third, that some of the consequences of homosexuality may be linked to the action (which is always a choice) rather than the feelings (which are sometimes a choice); and fourth, that gay activists and scientists place social pressure as a contributing factor to those who are able (or claim to) reverse their sexuality (Dave Cornwell, So Called Ex-Gay Conversions), (Epstien, 56-57).

{Relationship differences}

The negative consequences of promiscuity and adultery are well known. Because of this, the differences between homosexual and heterosexual relationships are noteworthy. Studies have found that in multiple first-world areas such as Europe, Australia, and America, those who engaged in homosexual relationships had lower rates of monogamy among committed relationships and higher rates of separation. In America, after AIDS was widely known about, homosexual men averaged four partners per month. A Dutch study published in the journal AIDS in 2003 found that, among Amsterdam’s homosexual population, men with steady partners averaged 8 other casual sexual partners per year and that the average duration of committed relationships among gay men was 1.5 years (Xiridou, AIDS p. 1029-1038). A Canadian study in 2003 found that only 25 percent of those interviewed (gay men who had been in a committed relationship lasting longer than one year) reported being monogamous. According to Barry Adam who conducted the study, “Gay culture allows men to explore different…forms of relationships besides the monogamy coveted by heterosexuals.” (Ryan Lee, Washington Blade (August 22, 2003): 18.) This can be compared with 1994 findings, referenced by Dr. A. Dean Byrd, that 94 percent of heterosexual married couples were monogamous and 75 percent of heterosexual cohabiting couples were monogamous and that “Gay men who were coupled reported that they had sex with someone other than their partner in 66% of the cases during the first year, rising to 90 percent if their relationship lasted for five years” (Conjugal Marriage Fosters Healthy Human and Societal Development p. 14).

{Physical Health Risks}

In addition to these tendencies in homosexuals, there are also physical consequences. The CDC estimates that while “only 4 percent of men in the United States are MSM, the rate of new HIV diagnoses among MSM in the United States is more than 44 times that of other men” (CDC, 2011). Other research on gay and bi-sexual men found that despite the increased risk:

37.3 percent of the men said they had engaged in unprotected anal intercourse over the past three months. In 41.3 percent of these cases, unsafe sex took place with another HIV-infected partner, but in 31.4 percent of cases the unprotected behavior took place with a partner whose HIV status was unknown. In 23 percent of cases, the infected man engaged in unprotected sex with a partner he knew to be HIV-negative, the study found (ABC News, One-Third of HIV-Infected Gay Men Have Unsafe Sex: CDC).

Another study found that “Gay young men in serious relationships are six times more likely to have unprotected sex than those who hook up with casual partners” (Northwestern University, Unprotected Sex More Likely In Serious Gay Relationships, 2011)

Aside from HIV/AIDS risks, homosexual males have a 10 times higher rate of anal cancer than heterosexual males (Melbye et al. p. 779). , and lesbians have higher rates of heavy smoking, bacterial vaginosis, drug use, alcohol abuse, and hepatitis B and C (Fethers, et al., 76: 5: 345-349).

{Mental and Emotional Health Risks}

There are also negative mental and emotional health effects linked with homosexuality. Studies published in the Archives of General Psychiatry have yielded the following conclusions: “After adjustmentfor substance abuse and depressive symptoms (other than suicidality),all of the suicidality measures remain significantly associatedwith same-gender sexual orientation except for wanting to die” (Michael Lyons et al. Arch Gen Psychiatry56: 10: 867-874); “Gay, lesbian, and bisexual young people were atincreased risks of major depression…, generalized anxiety disorder…, nicotine dependence …, othersubstance abuse and/or dependence…,multiple disorders…, suicidal ideation…, and suicide attempts (Fergusson et al. Arch Gen Psychiatry 56:10: 876-880). The unlikelihood that these results are a product of societal views against homosexuality is evidenced by the somewhat stronger results from a study in the Netherlands*

Compared with heterosexual men, homosexual men had significantlyhigher 12-month and lifetime rates of mood and anxiety disorders. Inspection of the specific mood disordersrevealed that compared with heterosexual men, homosexual menhad a much larger chance of having had 12-month and lifetime bipolardisorders and a higher chance of having had lifetime major depression butno significant differences were seen regarding dysthymia. Regardingthe specific anxiety disorders, the lifetime prevalence wassignificantly higher in homosexual men than in heterosexualmen for all but generalized anxiety disorder. The biggest differenceswere found in obsessive-compulsive disorder and agoraphobia.The 12-month prevalences of agoraphobia, simple phobia, and obsessive-compulsivedisorder were higher in homosexual men than in heterosexual men….On a lifetime basis, homosexual women had a significantlyhigher prevalence of general mood disorders and major depressionthan did heterosexual women (Sandfort et al. Arch Gen Psychiatry 58: 1: 85-91).

*As of 2008 91% of people in the Netherlands accepted a homosexual relationship as “not wrong at all,” compared to 33% in the United States (Keuzenkamp, p. 11).

In addition, studies show significantly higher rates of domestic violence in homosexual relationships. One study found that 29.7% of gay men and 47.5% of lesbians had been victimized by a gay partner (Waldner-Hagrund et al, Violence Vict. 12: 2: 173-184). A separate study of lesbian relationships replicated the result (Lie, G. & Gentlewarrior, S. Journal of Social Service Reseach 15: 1&2: 47). The National Research Center on Domestic Violence has also reported a much higher rate of domestic violence among the LGBT community (LGBT Communities and Domestic Violence, 2007).

{Same-Sex Adoption}

There is yet another consideration, beside the effect on the individuals who practice homosexuality themselves, which leads us to question the merit of promoting same-sex relationships with tax and other financial incentives and the designation of marriage which is to distinguish the relationship as meriting incentive. I refer to the effects of child-rearing. Because of the policies of individual states*, a repeal of DOMA, insofar as it would cause all states to recognize same-sex marriages, would have the direct effect of allowing joint adoption by same-sex couples in 45 states. Therefore it would do well to consider the facts.

Studies examined in an essay comparing the effects of the homosexual and heterosexual relationships found: “that children of dual-gender parents are more competent, function better with fewer problems in living;” that, “the essential contributions to the optimal development of children are not only gender specific but also gender complementary and virtually impossible for a mother or father to do alone;” that, mothers brought security and comfort while a fathers touch and play were instructional and resulted in greater self-control, responsibility and feelings of freedom; that, “infants who had close relationships with their fathers were more stress resistant;” and that, “father hunger is the primary cause of the declining well-being of children in our society and is associated with social problems such as teenage pregnancy, child abuse, and domestic violence against women” (Byrd, p. 5-9).

* A handful of states expressly allow joint adoption by same-sex couples while 5 expressly disallow it. The rest of the states are ambiguous (Wikimedia, LGBT Adoption).

In conclusion, we can see that a repeal of DOMA could carry many unintended consequences. The advocates of this bill are under the assumption that it is the only way to secure rights for a minority group. This assumption is incorrect. A federal recognition of civil unions with prescribed rights would face less opposition, carry fewer consequences, have a faster and more likely effect upon the states, and would secure those benefits which are truly rights inherent in the nature of a committed relationship between two human beings. Because of this alternate path to obtain those privileges which can rightfully be regarded as rights, and because of the decisions of the Supreme Court to date, I maintain that The Defense of Marriage Act is constitutional and one part of wise societal policy.

 

Works Cited

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Cornwell, Dave. “So Called Ex-Gay Conversions.” Lionking.org 14 March 2012 <http://www.lionking.org/~kovu/bible/section10.html>

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Epstein, Robert. “Do Gays Have A Choice?” Scientific American Mind Feb/March 2006: 51-57

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Wikimedia. “LGBT Adoption.” 2012. 12 March 2012 <http://en.wikipedia.org/wiki/LGBT_adoption#United_States>

 

Xiridou, M. Geskus, R. De Wit, J. Coutinho, R. Kretzschmar, M. “The contribution of steady and casual partnerships to the incidence of HIV infection among homosexual men in Amsterdam.” AIDS 2003 May 2;17(7):1029-38 Abstract. Pub-Med. National Center For Biotechnology Information. 13 March 2012 < http://www.ncbi.nlm.nih.gov/pubmed/12700453

 

 

 

 

 

 

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