Same-Sex Marriage

Same-sex marriage challenges the definition of marriage. Conservatives oppose it on moral grounds, claiming it threatens the structure of the Western institution of heterosexual marriage. Others identify the social problem as the institution of marriage itself. Supporters of same-sex marriage identify the social problem as heterosexual hegemony and discrimination against gay, lesbian, bisexual, and transgender people.

Although the institution of marriage versus same-sex unions has been critiqued for centuries, in the late 20th century criticisms began with the feminist and gay/lesbian rights movement and the sexual revolution of the late 1960s. Non-procreative sex and sex outside of marriage, particularly for women, redefined monogamous marriage. Radical feminists viewed marriage as an oppressive institution of patriarchy. The heterosexual monogamous lifestyle was challenged by the strengthening of alternative living arrangements. The focus moved to creating equal rights for lesbian, gay, bisexual, transsexual and transgender, and later inter-sexed, queer, and questioning people (LGBTIQQ). In recent decades, that focus changed to legalization of same-sex marriage.

Same-sex marriage differs from civil unions and domestic partnerships. Domestic partnership refers to policies passed by private businesses, local or state governments, and universities that provide legal protections such as health insurance benefits for same-sex couples and unmarried heterosexual couples. However, it doesn't provide constitutional rights such as a guarantee to due process, marriage as a fundamental right, freedom of association, and the right to equal protection. Some domestic partner benefits require that the employed partner pay taxes on the dependent partner's benefits.

Civil unions are legal partnerships recognized by local or state governments but do not carry the same weight as marriage. Only marriage allows for the 1,138 federal benefits such as Social Security survivor or spousal benefits, workers' compensation, and public assistance; the ability to file a joint tax return and other tax benefits; estate benefits; immigration rights; military and veteran's benefits; and coverage under the Family and Medical Leave Act. The argument for same-sex marriage is likened to ending anti-interracial marriage laws in the United States in 1967 as evidenced in the Loving v. Virginia decision. Meanwhile, civil unions allow states to circumvent constitutional amendments that define marriage as a union between a man and a woman.

The current debate over same-sex marriage focuses on federal policies, court rulings, state laws, and city ordinances. The 1996 Defense of Marriage Act, or DOMA, creates an exception to the Full Faith and Credit Clause of the U.S. Constitution, which allows for enforcement of contracts and other state laws across state lines. DOMA defines marriage as a union between one man and one woman for purposes of federal law and allows states to refuse to acknowledge the legality of same-sex marriages performed in other states. DOMA passed in reaction to a 1993 Hawaii supreme court ruling stating it was gender discrimination to deny lesbian and gay couples the right to obtain a marriage license. In 1998, Hawaii [Page 798]passed a constitutional amendment outlawing same-sex marriage.

The Federal Marriage Amendment seeks to further fight state efforts to legalize same-sex marriage by amending the U.S. Constitution. Introduced in 2003, it would make only different-sexed marriage legal. To date, it has not passed either house of Congress.

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