Same-Sex Marriage in Defense of Essay

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Ruth and Naomi appear to be lesbians. In fact, the statements made by Ruth to Naomi mirror echo the familiar "till death do us part" used in marriage ceremonies (Robinson, "Same-Sex"). King David of Israel may also have been in a homosexual relationship with Jonathan, the son of King Saul. "David left his parents home and moved to Saul's where he would be with Jonathan" (Robinson, "Same-Sex). Furthermore, the couple were descried as one in soul, which in ancient Israelite times represented a combination of body and spirit, supporting the idea that the two men had an emotional and physical relationship (Robinson, "Same-Sex"). Furthermore, there are references to Jonathan disrobing in front of David, which would not have been typical behavior in a non-sexual relationship, and Saul appears to refer to David already being his son-in-law before arranging for David to marry his daughter (Robinson, "Same-Sex"). More explicitly, the Bible refers to David and Jonathan kissing each other (Robinson, "Same-Sex"). The third same-sex relationship that appears in the Bible is the relationship between Daniel and Nebuchadnezzar. Although translations vary, it is clear that they had a special relationship (Robinson, "Same-Sex"). While none of these relationships are explicitly sexual, they do involve adults of the same-sex living with each other in long-term, committed relationships. None of those relationships is condemned anywhere in the Bible.

Despite the evidence that the Bible does not condemn gay marriage, that morality is not an appropriate topic for legislation, and that there is no historical basis for the theory that marriage can only be defined by a union between one man and one woman, some critics of gay marriage will still oppose the idea of same-sex marriage. These critics introduce an amorphous argument- claiming that allowing gay marriage will threaten the institution of marriage. That argument is easily dismissed. The divorce rate in America is over 50% for first marriages, and even higher for subsequent marriages, and yet people do not discuss de-legalizing divorce to protect the sanctity of marriage. Domestic violence threatens far more marriages than the specter of gay marriage ever could; while the survey results vary, it is clear that well over one-quarter of women report being assaulted by a spouse or partner during their lifetime. Finally, in an age of television reality program where viewers watch people lie to and manipulate each other in an effort to land a bride or groom, or where the reality "stars" allow America to pick their mates by telephone, arguments about the sanctity of marriage ring hollow.

A side argument to the sanctity of marriage argument is that the institution of marriage was created solely for the purpose of begetting children. This argument is spurious. A pleasant side-effect of many marriages may be the creation of children, but people have never been denied the right to marry because they were unable to procreate. If that were the case, post-menopausal women and infertile men and women would not be permitted to marry. However, elderly widow and widowers have traditionally been permitted to marry the death of a spouse. Furthermore, while infertility has historically been a ground for divorce, it has not been considered an appropriate ground for annulment, absent fraud or misrepresentation.

The final argument against gay marriage is the legal argument. Given that the United States is a nation of laws, the legal argument is the most daunting. Until recently, gay marriage and civil unions have not been formally recognized anywhere in the United States. Even now, with some states offering limited recognition of same-sex partnerships, the backlash is tremendous. However, the law clearly supports the concept that homosexuals are entitled to enjoy the same marital protections as heterosexuals.

Even before anyone in America talked about the idea of gay marriage, gay couples were entering into civil contracts designed to give each other the same legal rights that other families had. That was the era of the adult adoption. One of the members of the couple would legally adopt the other member of the couple, giving the partners the right to make important decisions in the event of illness or death and the right to be beneficiaries of each other's estates. However, given the legal proscriptions against sexual relationships between parent and child, no matter the age of or actual relationship between the parties, that arrangement was less-than-ideal. From that idea sprung the concept of the civil union. Civil unions, whether actually called by that name, are essentially contracts that allow partners to agree to treat each other as spouses.

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Depending on the state, civil union contracts also entitle the couple to be treated by the state and afford them some of the benefits of marriage. However, civil unions are not equivalent to marriage. Although the laws for civil unions and the state protections that go with them vary from jurisdiction to jurisdiction, civil unions can not entitle the partners in them to the federal benefits that are reserved to married couples. Furthermore, civil unions are not entitled to full faith and credit, leaving one or both partners vulnerable in the event that the contract is interpreted or enforced in a jurisdiction other than the one where it was written. Given that the proxies for marriage are not suitable substitutes for an actual legal marriage, the only lingering question is whether homosexuals have a right to same-sex marriages.

The strongest argument for gay marriage is the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution, which provides that:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws (U.S. Const.).

The Fourteenth Amendment has previously been interpreted to extend the scope of Equal Protection to cover marriage. In Loving v. Virginia, the Supreme Court was called upon to determine whether or not Virginia's anti-miscegenation statutes were legal. The court determined that under the Constitution, "the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State" (Loving, 1824). Loving v. Virginia is important because it expanded upon the idea introduced in Skinner v. Oklahoma that marriage was a basic civil right.

The fact that Loving v. Virginia was about race does not render it less significant as a reason that gay marriage should be legalized. Equal Protection analysis requires strict scrutiny for any state laws that classify people on the basis of certain protected classes. Race and sex are the two most prominent of those classes.

Unfortunately, traditional jurisprudence has not extended the scope of Equal Protection to cover homosexuality. "Homosexuals, as a class, do not have the characteristics necessary for special constitutional protection, therefore discrimination based on sexual preference only needs to meet the rationality standard of review" (Bartlett, 443). However, this view of homosexuality may be changing in light of scientific evidence that demonstrates that homosexuality may be as immutable a characteristic as race or gender. Furthermore, given that it is now possible for people to have sex-change operations, any protections based on sex are not actually based on protecting an immutable characteristic (Bartlett, 445).

The fact is that discriminating against gays on the basis of sexual preference is discriminating against gays on the basis of sex. The two concepts are inseparable. A gay man is not prohibited from marrying another gay man because either of them is gay; both could enter into legal marriages with women. He is prohibited from marrying a man because he is a man. Bartlett analyzed Bowen v. Gilliard to determine the criteria for determining which groups are entitled to a heightened standard of constitutional review (443). Bartlett determined that those criteria are:

that members of the group have suffered a history of discrimination; (2) that they exhibit obvious, immutable, or distinguishing characteristics that define them as members of a discrete group; and (3) that the group is a minority or politically powerless, or that the classification burdens a fundamental right (443-4).

Homosexuals have historically suffered legal discrimination, and are members of a minority. As previously discussed, the issue at hand, marriage, is a fundamental right. The lynchpin is whether or not homosexuality itself is an immutable characteristic.

In Watkins v. United States Army, a concurring justice suggested that a characteristic is as effectively immutable if "changing it would involve great difficulty, such as requiring a major physical change or a traumatic change of identity" (726). Whether homosexuality is chosen or pre-determined, there can be little argument that sexual preference is an essential part of one's identity, and that requiring a person to alter his or her sexual preference would be traumatic. Bartlett makes this clear by posing this question in her analysis of immutability:….....

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