Same-sex marriage

Same-sex marriage is a term for a governmentally, socially, or religiously recognized marriage in which two people of the same sex live together as a family. Other terms for this type of relationship include "gay marriage", "gender-neutral marriage," "equal marriage," "lesbian marriage," "homosexual marriage," "single-sex marriage," and "same-gender marriage".

Debates over terminology

A Pride March in 2005, celebrating the legalization of same-sex marriage in Spain

Proponents of same-sex marriage often use the term "equal marriage" to stress that they seek equality as opposed to special rights; the term "equal marriage" has also been used by feminists to describe any marriage, regardless of the sex of the partners, in which the partners have equal status within the marriage. Opponents argue that equating same-sex and opposite-sex marriage changes the meaning of marriage and its traditions. Some opponents use the term "homosexual marriage", and surveys have suggested that the word "homosexual" is more stigmatizing than the word "gay". Some publications that oppose same-sex marriage put the word "marriage" in scare quotes when referring to it. Notable publications that practice this are The Washington Times and LifeSite. Cliff Kincaid, a writer for the American conservative-based media watchdog group Accuracy in Media, agrees with this method arguing that "marriage" is a word that same-sex couples merely want to apply to themselves, but have no legal ability to do so in most states. Same-sex marriage supporters argue that it is editorializing and implying inferiority, and point out that the quotes are even used when referring to same-sex marriages in locations where it is legal.

Some have suggested reserving the word "marriage" for religious contexts, and in civil and legal contexts using a uniform concept of civil unions. Harvard Law professor Alan Dershowitz, for instance, wrote that such an arrangement would "strengthen the wall of separation between church and state by placing a sacred institution entirely in the hands of the church while placing a secular institution under state control". Conservative critics like National Review's Jennifer Morse contend that the conflation of marriage with contractual agreements is itself a threat to marriage that "has undermined more heterosexual marriages than anything, with the possible exception of adultery".

History

Main article: History of same-sex unions

Current status

Main article: Status of same-sex marriage

Full marriage is presently available to same-sex couples in seven countries. The Netherlands was the first country to allow same-sex marriage in 2001. Same-sex marriages are also recognised in Belgium, Canada, South Africa, Spain, and the U.S. state of Massachusetts. Rhode Island residents are also permitted to marry in Massachusetts (for same-sex marriages performed within that state under its laws). Israel's High Court of Justice ruled to recognize same-sex marriages performed in other countries, although it is still illegal to perform them within the country. A bill was raised in Knesset to rescind the Israeli High Court's ruling, but the Knesset has not advanced the bill since December 2006.

Map showing the status of homosexuality laws of the world.

Civil unions

Main article: Civil union

Civil unions, domestic partnerships or registered partnerships offer varying amounts of the benefits of marriage and are available in: Andorra, Colombia, Croatia, Czech Republic, Denmark, Finland, France, Germany, Hungary, Iceland, Israel, Luxembourg, New Zealand, Norway, Portugal, Slovenia, Sweden, Switzerland and the United Kingdom. They are also available in parts of Argentina, Brazil, Mexico, the U.S. states of California, Connecticut, Hawaii, Maine, New Jersey, Vermont, Oregon, Washington, New Hampshire effective Jan. 1st 2008, and the U.S. District of Columbia (Washington, D.C.), but are not currently available in all Australian states and territories (instead have domestic partnerships which are avaiable all jurisdictions in Australia. The first same-sex union in modern history with government recognition was obtained in Denmark in 1989. Scandinavian registered partnership is nearly equal to marriage, including legal adoption rights in Sweden, and since June, also in Iceland. However these partnerships are written separately from marriage in the existing laws, and are thus not called marriage except in daily speech. In some countries with legal recognition the actual benefits are minimal. Many people consider civil unions, even those which grant equal rights, inadequate, as they create a separate status, and think they should be replaced by gender-neutral marriage.

International organizations

The terms of employment of the staff of international organizations (not businesses) are not, in most cases, governed by the laws of the country in which their offices are located. Agreements with the host country safeguard these organizations' impartiality with regard to the host and member countries. Hiring and firing practices, working hours and environment, holiday time, pension plans, health insurance and life insurance, salaries, expatriation benefits and general conditions of employment are managed according to rules and regulations proper to each organization. The independence of these organizations gives them the freedom to implement human resource policies which are even contrary to the laws of their host and member countries. A person who is otherwise eligible for employment in Belgium may not become an employee of NATO unless he or she is a citizen of a NATO member state. The World Health Organization has recently banned the recruitment of cigarette smokers. Agencies of the United Nations coordinate some human resource policies amongst themselves.

Despite their relative independence, few organizations currently recognise same-sex partnerships without condition. The Organisation for Economic Co-operation and Development (OECD) and the agencies of the United Nations voluntarily discriminate between opposite-sex marriages and same-sex marriages, as well as discriminating between employees on the basis of nationality. These organisations recognize same-sex marriages only if the country of citizenship of the employees in question recognizes the marriage. In some cases, these organizations do offer a limited selection of the benefits normally provided to opposite-sex married couples to de facto partners or domestic partners of their staff, but even individuals who have entered into an opposite-sex civil union in their home country are not guaranteed full recognition of this union in all organizations. However, the World Bank does recognise domestic partners.

Anticipated demand in the United Kingdom

In the United Kingdom, the government is reported to have anticipated demand for same sex civil partnerships as being around 11,000 to 22,000 by 2010. However as at December 2006 some 15,657 such partnerships had been registered in around 9 months.

Transsexual and Intersex persons

When sex is defined legally, it may be defined by any one of several criteria: the XY sex-determination system, the type of gonads, or the type of external sexual features. By all of these definitions both transsexuals and intersexed individuals are legally categorized into confusing gray areas, and could be prohibited from marrying partners of the "opposite" sex or permitted to marry partners of the "same" sex due to arbitrary legal distinctions. This could result in long-term marriages, as well as recent same-sex marriages, being overturned.

An example of the problem with chromosomal definition would be a woman with Complete Androgen Insensitivity Syndrome (CAIS), who would have a 46,XY karyotype, which is typically male. Although she may have been legally registered as female on her birth certificate, been raised as a female her entire life, have engaged in typical heterosexual female relationships, and may even have married before the status of her condition was known, using the chromosomal definition of sex could prevent or annul the marriage of a woman with this condition to a man, and similarly allow her to legally marry another woman. These same issues were faced by the IOC to determine who qualified as a female for the women's competitions.

The problems of defining gender by the existence/non-existence of gonads or certain sexual features is complicated by the existence of surgical methods to alter these features. Although it has not been exhaustively stated by a court, it is possible that a court could find that if a person has their gonads removed, they would enter a sexual limbo status and fail to meet either set of criteria, thus excluding them from any allowance to marriage. This situation could easily occur through exclusionary findings by separate courts in a state that already does not recognize transexual marriages to people of the same sex as their birth-sex, as in the case of Linda Kantaras vs. Michael Kantaras. Basing the distinction on genital appearance is complicated by available surgery converting typically male genitalia to typically female genitalia, which has advanced to the point where, even were a genital inspection necessary, many transgendered women would pass this inspection without question.

Requiring a surgical reassignment for definition of gender for the purpose of declaring a marriage valid comes with further problems. The female-to-male sex reassignment surgery is expensive and does not provide results as satisfactory as its counterpart; therefore many female-to-male transsexuals choose not to undergo this procedure. In a situation where genitalia legally defines gender and same-sex marriage is not permitted, the transsexual man would therefore only be allowed to legally marry another man if he wished to marry.

These complications are probably more likely than one would think at first glance; according to the highest estimates (Fausto-Sterling et al., 2000) perhaps 1 percent of live births exhibit some degree of sexual ambiguity, and between 0.1% and 0.2% of live births are ambiguous enough to become the subject of specialist medical attention, including sometimes involuntary surgery to address their sexual ambiguity.

In any legal jurisdiction where marriages are defined without distinction of a requirement of a male and female, these complications do not occur, and some legal jurisdictions may recognize a legal and official change of gender, which would allow one to satisfy the requirement of either "male" or "female" according to their gender-identity within their legal definition of marriage. Although some legal jurisdictions continue to only recognize the "immutable traits determined at birth". (Linda Kantaras vs. Michael Kantaras)

Main article: Legal aspects of transsexualism

In the United Kingdom, recent legislation allows transsexual persons to be officially recognized in their new gender, but this has the effect of annulling any previous marriage. However the couple will now be able to register a civil partnership, to come into force immediately upon the dissolution of their marriage

In countries with legal systems based on the Napoleonic codes, being legally recognized as one's transitioned gender may require conditions of infertility, where if a transsexual were ever found to have had a child, it would result in a reversal of a legal sex change and spontaneous annulment of the marriage if that country does not recognize same-sex marriages.

In the United States, transsexual and intersexual marriages typically run into the complications detailed above. As definitions and enforcement of marriage is defined by the state, these complications will vary from state to state. In Massachusetts no problem should arise in seeking to get a marriage, or enforcing that marriage, however marriage in states that have more prohibitive definitions, any marriage with a transsexual could face challenge in a court based on any number of criteria.

(For discussions on the status of marriages involving transgendered persons see Julie A. Greenberg, Defining Male and Female: Intersexuality and the Collision Between Law and Biology, 41 Ariz. L. Rev. 265 (Summer 1999); and Michael L. Rosin, Intersexuality and Universal Marriage, 14 L. & Sex. 51 (2005) as well as the references they contain.)

Controversy

File:OutMagazineCover.jpg

Out Magazine covers the marriage of Bob Paris and Rod Jackson in March 1994

The legitimacy of marriage between two people depends on how the authoritative definition of marriage is derived. Gay rights advocates assert that marriage is a civil right since they believe marriage is a fundamentally legal agreement on the governmental level which should not be restricted to opposite-sex couples. Their opponents assert that marriage is a right, but it is a natural right based on the biological need to procreate. In this view, "marriage" between same-sex couples is not itself a right and can be allowed or disallowed as law decides. Further opponents argue that a change in the definition of marriage to include same gender couples could lead to the breakdown in understanding of what marriage actually is. Most of the controversy centers around governmental definitions of marriage, rather than the blessing of same-sex unions by individual religious organizations, which may or may not be recognized as civil marriages. Opponents counter that the very definition of traditional marriage itself has changed drastically over time; polygamy, formerly a common practice, is illegal in the United States and few people would openly espouse the idea of "wife as chattel." Moreover, the "traditional" view of "love marriages" has only been in existence since the latter 18th century.

Some who are in favour of same-sex marriage argue that homosexuals contribute as much as heterosexuals to the funding for private and public family coverage even when they have no access to it, and that discrimination decreases productivity. They support the equalization of male-male, female-female, and male-female relationships, and being able to marry any consenting adult one chooses is seen as a civil right that should not be abridged by the government.

Opponents answer that this view of marriage reduces marriage to little more than a means test for social benefits. They also see same-sex and male-female arrangements as inherently unequal, stating that nothing less than perpetuation of humanity itself relies fully on the latter and not at all on the former, and trying to "equalize" such arrangements through force of law will only create gross social distortions to accommodate the gulf between such law and the observable facts of human nature. However, none to date have argued that there should be a legal requirement to have children in a male-female relationship to be recognized as a marriage or that sterile male-female couples should be denied a marriage license. Furthermore, no concrete evidence has been offered affirming that non-procreative same-sex marriages and procreative opposite-sex marriages are mutually incompatible.

Some disagree with the idea of government involvement in the institution of marriage at all but especially the benefits received from becoming married that are largely seen as a "reward". Within this interpretation, giving benefits to married couples, regardless of sexual preference is a problem in and of itself. The government's only function is to uphold the legal agreement between the partners, regardless of sexual orientation. This view can be found with individuals that align themselves with the Libertarian Party and fits well within their small government ideals.

Religious arguments

Historian John Boswell claims the 4th century Christian martyrs Saint Sergius and Saint Bacchus were united in the rite of adelphopoesis, or brother-making, which he calls an early form of religious same-sex marriage

Some opponents object to same-sex marriage on purely religious grounds. Opponents often claim that extending marriage to same-sex couples will undercut the conventional purpose of marriage as interpreted by cultural, religious, and traditional understanding. Furthermore, opponents argue that same-sex marriage cannot fulfill common procreational roles, and/or sanctions a partnership that is centered around sexual acts that their respective religion prohibits. For example, James Dobson, in Marriage Under Fire and elsewhere, states that legalization or even tolerance of same-sex marriage would redefine the family, damage traditional family unions, and lead to an increase in the number of homosexual couples.

Conservatives and some moderate Christians further claim that same-sex marriage goes against biblical teaching. As an example, there is the Bible verse Genesis 19:5 which refers to the behavior which biblically contributed to the destruction of the ancient cities Sodom and Gomorrah. Other passages are Leviticus 18:22, Leviticus 20:13, and in the New Testament of the Bible, First Corinthians 6:8-10 and Romans 1:24-27, although none of these outright define marriage in a purely heterosexual way.

However, other moderate and liberal Christians claim that these passages are taken out of full textual, historical and cultural contexts, and are not applicable to homosexual relationships as we know them today. They view the passages about Sodom and Gomorrah as referring to systematic rape and inhospitality. They view the passages in Leviticus as part of the Holiness Code and strictly reserved to the Israelites of that time. Some of this Holiness Code is not practiced by contemporary Christians (e.g., prohibitions on wearing mixed fabrics, a proscription of the consumption of pork, the sacrifice of animals as atonement for sins), while other parts such as the prohibitions on incestuous relations still are. For some modern Christians, the passage in Romans is seen as relating more to specific instances of Greco-Roman temple sex acts and idolatrous worship and it is not intended to address contemporary homosexuality.

There are some people, who despite having a moral or religious stance that same-sex marriage is wrong, still feel that it is not their place to take their religious sentiments into the secular realm, and enforce their beliefs on others, who may disagree. So, while these religious people do not approve of homosexual couples, and continue to refuse to recognize their marriages from a religious aspect, they still nevertheless recognize and tolerate their secular marriage.

Some modern religions and denominations, as listed previously in this article, perform same-sex weddings. At the 1996 Unitarian Universalist General Assembly, delegates voted overwhelmingly that because of "the inherent worth and dignity of every person" same-sex couples should have the same freedom to marry that other couples have.

Social arguments

Those who advocate that marriage should be defined exclusively as the union of one man and one woman argue that heterosexual unions provide the procreative foundation of the family unit that is the chief social building block of civilization. Libertarians and others may see marriage not as a legal construct of the state, but as a naturally occurring "pre-political institution" that the state must recognize as it recognizes other natural institutions such as jobs and families. "Government does not create marriage any more than government creates jobs." They argue that the definition proposed by same-sex marriage advocates changes the social importance of marriage from its natural function of reproduction into a mere legality or freedom to have sex. These sides of the argument may refer to themselves as "defenders" of traditional marriage. As any customary relationship may be considered "marriage", some argue that this then leads to undue legislative burden and an affront to the social value and responsibility of parenting one's own children.

The dissent by Justice Martha Sosman in the decision of the Massachusetts high court that legalized gay marriage in that state makes a societal argument without specifying the harm that would occur from this change. Asserting the a priori importance of marriage as an institution, she questions whether the burden of proof that this would be harmless has been met. Her analysis can be seen as an example of Precautionary principle.

A common objection to same-sex marriage is that the purpose of marriage is a result of naturally occurring sexual attraction that leads to procreation and that the same-sex partnership is inherently sterile. Some who hold this view see marriage as the social codification of an evolved long term mating strategy, with economic and legal benefits to facilitate family growth and stability. Others argue that because the law does not prohibit marriage between sterile heterosexual couples, or to women past menopause, the procreation argument cannot reasonably be used against same-sex marriage, particularly since technological advances allow gay couples to have their own related biological children.

Another view is that all marriages should thus be viewed legally as "civil unions". These civil unions would then only receive the benefits of marriage which do not require expenditures from the government (e.g. tax breaks), and any monetary benefits would only be awarded based on the number of children living in a household.

Some same-sex marriage proponents, such as Andrew Sullivan, argue that same-sex marriage is moral enough to support the family centered role marriage plays in society despite the absence of biological children. Also that the institution of marriage would be strengthened by making it available to more people, and argue further that same-sex marriage would encourage gays and lesbians to settle down with one partner and raise families. Others argue that marriage no longer retains a procreative function of the government since many governments offer child tax credits and assistance regardless of marital status.

Some libertarians and anarchists object to same-sex marriage because they are opposed to any form of state-sanctioned marriage, including opposite-sex unions. They are not necessarily opposed to the idea of a same-sex wedding itself, only that the government should not have any role in the event, nor for that matter should government approval be sought for opposite-sex marriages. See Libertarian perspectives on gay rights.

Arguments about tradition

Proponents of same-sex marriage point out that "traditional" concepts of marriage in actuality have already undergone significant change.

Polygamy has been prohibited, married women are no longer considered the property of their husbands, divorce is legal, contraception within wedlock is allowed, and anti-miscegenation laws forbidding interracial marriage have been eliminated in most modern societies.

The fact that changes in the customs and protocols of marriage often occur gives rise to the argument that marriage is dynamic, and same-sex marriage is only the latest evolution of the institution.

Arguments concerning children

Main article: LGBT parenting

In opposing same-sex marriage in various state courts, a common key state's argument against allowing same-sex marriage has been the use of legal marriage to foster the state's interest in human reproduction. In Anderson et al. v. King County in which several same-sex couples argued that the state of Washington's version of the Defense of Marriage Act (DOMA) was unconstitutional, the Washington Supreme Court ruled 5 to 4 that the law was constitutional. Writing in the majority opinion, Justice Barbara Madsen wrote in 2006:

The Legislature was entitled to believe that limiting marriage to opposite-sex couples furthers procreation, essential to the survival of the human race and furthers the well-being of children by encouraging families where children are reared in homes headed by children's biological parents.

(See also Same-sex marriage in Washington)

In responding to this argument in 2007, the Washington Defense of Marriage Alliance, a supporter of same-sex marriage, began a petition drive to place a ballot measure on the November 2007 ballot that would require opposite-sex couples who marry to have children within three years or have their marriages become legally unrecognized. Couples seeking a marriage license would also have to show they can produce children. The group admits this ballot initiative aims at calling attention to the Washington Supreme Court's decision in Anderson and the logical extension of this reasoning to childless and/or sterile heterosexual couples.

In terms of numbers, the 2000 U.S. Census reports more than 600,000 same-sex couples (unmarried domestic partners on the Census form) in the United States. The Census Bureau estimates that this number would be over 770,000 in 2005. While a post-Census study by UCLA economist Dr. M.V. Lee Badgett found that there was a significant undercount of same-sex couples in 2000, the Census reports that among the couples answering they are a same-sex couple: one-third of lesbian couples and one-fifth of gay male couples have children under 18 living in the home. Some object on the grounds that same-sex couples should not be allowed to adopt or raise children or to have access to reproductive technologies, and that same-sex marriage would make such arrangements easier. A number of health and child welfare organizations, however, disagree. They include the Child Welfare League of America, North American Council on Adoptable Children, American Academy of Pediatrics, American Psychiatric Association, American Psychological Association, and the National Association of Social Workers. On July 28, 2004, the American Psychological Association's Council of Representatives adopted a resolution supporting legalization of same-sex civil marriages and opposes discrimination against lesbian and gay parents.

Arguments concerning divorce rates

Over two years have passed now since same sex marriage was legalized in Massachusetts, and data from all of 2004 and 2005 are now available. Emergent trends in Massachusetts amount to a stark indictment of those dire claims about same-sex marriage having a negative impact on traditional marriages.

Divorce rates are commonly used as a key measure of marital and family health.

US states, including Massachusetts, submit monthly summaries of vital statistics on births, deaths, marriages, and divorces to the US Center For Disease Control's National Center For Health Statistics (NCHS). The NCHS then compiles publicly available monthly and yearly reports of this data. The following statistics are based on that NCHS material.

Divorce rates in the US have been declining steadily since the early 1980s. Massachusetts has shared in the trend and traditionally has had a divorce rate considerably lower than the national average.

In fact, for several years now the Commonwealth has had the lowest divorce rate of any state in the union.

In 2004 the Massachusetts divorce rate, at 2.2 per 1,000 residents per year, was considerably lower than the US national average rate for that year, 3.8 per 1,000. The divorce rate in Massachusetts was lower than the national average rate of 2.6 per 1,000 in 1950, and even approached the national rate of 2 per 1,000 in 1940.

In the first two years of legal same sex marriage in the Bay State, Massachusetts showed a more rapid decline and will very likely hold on to its title as the US state with the lowest divorce rate in the nation.

The institution of marriage in Massachusetts since same-sex Marriage was legalized, as measured by the rate of divorce, has not been healthier in at least half a century regardless of dire predictions of Christian Right leaders and Catholic Bishops.

The conservative "red states" that have taken aggressive action against same sex marriage, have not done nearly as well during the two year period of legal same sex marriage in Massachusetts.

The preliminary data from 2004 and 2005—from the 17 US states which have provided data on divorce for 2004 and 2005 and whose voters also passed state constitutional amendments prohibiting same sex marriage—presents a striking picture: the group of US states arguably most hostile to divorce, those which have passed both state laws and also state constitutional amendments prohibiting same sex marriage, lag dramatically in terms of divorce rate improvement when compared to same sex marriage friendly states.

Among those US states that are most opposed to same sex marriage which have also provided divorce data for the time period — AR, KS, KY, MI, MS, MO, NE, NV, ND, OH, OK, OR, UT, TX — the average divorce rate ( unadjusted for population changes ) for 2004 and 2005 increased 1.75%. This group contains 4 of the 5 states with the highest divorce rate increases in the US during 2004 and the first 11 months of 2005.

The one state in the United States of America that has legal same sex marriage, Massachusetts, will be among the top ten states - or better - with the largest drop in divorce rates in America during 2004 and 2005.

Arguments concerning equality

In the United States, there are at least 1,138 federal laws "in which marital status is a factor." (See Rights and responsibilities of marriages in the United States for a partial list) A denial of rights or benefits without substantive due process, assert the proponents of same-sex marriage, directly contradicts the Fourteenth Amendment to the United States Constitution which provides for equal protection of all citizens. For instance, a heterosexual US citizen who marries a foreign partner immediately qualifies to bring that person to the United States, while long-term gay and lesbian binational partners who have spent decades together are denied the same rights, forcing foreign gay partners to seek expensive temporary employer or school-sponsored visas or face separation. See Immigration Equality and Human Rights Watch report on this and other forms of discrimination against same-sex couples.

In a 2003 case titled Lawrence v. Texas, the Supreme Court held that the right to private consensual sexual conduct was protected under the Fourteenth Amendment. The court noted "moral disapproval does not constitute a legitimate governmental interest under the Equal Protection Clause." Both supporters and detractors of same-sex marriage have noted that this ruling paved the way for subsequent decisions invalidating state laws prohibiting same-sex marriage. U.S. Supreme Court Justice Antonin Scalia noted as such in his dissenting opinion to Lawrence.

Some opponents of extending marriage to same-sex couples claim that equality can be achieved with civil unions or other forms of legal recognition that don't go as far as to use the word "marriage" that's used for opposite-sex couples. An opposing argument, used by the Massachusetts Supreme Judicial Court in Goodridge v. Department of Public Health, is the following: "the dissimilitude between the terms "civil marriage" and "civil union" is not innocuous; it is a considered choice of language that reflects a demonstrable assigning of same-sex, largely homosexual, couples to second-class status" and also that "The history of our nation has demonstrated that separate is seldom, if ever, equal." For instance, in matters under federal purview such as immigration, a bi-national same-sex couple committed under civil union do not have the same rights as their married heterosexual counterparts in sponsoring their alien partner for permanent residency. There is however, a bill pending in the United States Congress since 2000, called Uniting American Families Act pertaining to this discrimination.

Parallels to interracial marriage

Opponents of same-sex marriage argue that men and women are fundamentally different from one another, whereas interracial couples still fit within the "one man and one woman" definition of marriage. Louisiana State University law professor Katherine Spaht has characterized the debate as follows: “the fundamental understanding of marriage has always been, by definition, a man and a woman. Never did Webster’s dictionary define the term marriage in terms of the races. There is an inherent difference between interracial marriage and same-sex “marriage” because homosexuals cannot procreate." Focus on the Family’s Glenn Stanton told the Baptist Press that “knocking down bans on interracial marriage did not redefine marriage, it affirmed marriage by saying that any man has a right to marry any woman under the law. But what same-sex ‘marriage’ proponents seek to do is to radically redefine the very definition of marriage to say it’s not about gender. Marriage is about bringing the genders together, not keeping the races apart.”

Proponents of same-sex marriage make a comparison between racial segregation and segregation of homosexual and heterosexual marriage classifications in civil law. They argue that dividing the concept of same-sex marriage and different-sex marriage is tantamount to "separate but equal" policies (like that overturned in the US Supreme Court case Brown v. Board of Education), or anti-miscegenation laws that were also overturned. The last such law in the United States was struck down in 1967 (Loving v. Virginia).

In 1972, after the Minnesota Supreme Court's ruling in Baker v. Nelson specifically distinguished Loving as not being applicable to the same-sex marriage debate, the United States Supreme Court dismissed the appeal "for want of a substantial federal question." This type of dismissal usually constitutes a decision on the merits of the case; as such, Baker appeared—at least for a time--to be binding precedent on all lower federal courts.

It is unclear whether Baker v. Nelson remains as a potential bar to the federal courts from hearing cases regarding same-sex marriage. The federal Defense of Marriage Act of 1996 (DOMA) simultaneously created (1) a federal definition of marriage, 1 U.S.C. § 7, and (2) a new rule under the Full Faith and Credit Act (passed pursuant to Congress's authority under the federal Constitution's Full Faith and Credit Clause), 28 U.S.C. § 1738C, purporting to limit mandatory interstate recognition of same-sex marriages. By "federalizing" marriage with statutes that are susceptible of judicial scrutiny, Congress effectively — albeit perhaps unintentionally — expanded the subject-matter jurisdiction of the federal courts, seemingly superseding Baker's dismissal "for want of a substantial federal question."

This loophole in jurisdiction recently came to light when a same-sex couple was granted standing to sue in federal district court on a claim that DOMA is unconstitutional under the federal Constitution. See Smelt v. County of Orange, 374 F. Supp. 2d 861 (C.D. Cal. 2005), aff'd in part and rev'd in part, 447 F.3d 673 (9th Cir. 2006), cert. denied, 127 S. Ct. 396 (2006). In Smelt, the district court applied Pullman abstention to one part of the claim, but it proceeded to the merits on another part, finding DOMA to be constitutional. The Ninth Circuit affirmed the district court on the abstention question, but it reversed the district court on the merits, holding that the couple lacked standing to sue. The Ninth Circuit raised the standing question sua sponte, but only because the couple had not demonstrated the requisite injury. The Ninth Circuit left open the possibility that another couple with a demonstrable injury could bring the same suit in the future. Importantly, Baker v. Nelson is mentioned nowhere in the Ninth Circuit's opinion; its continuing relevance is therefore highly suspect.

Beginning in 2003, members of Congress have annually introduced a "court-stripping" provision that would prevent all federal courts from hearing claims challenging the constitutionality of DOMA. See, e.g., Marriage Protection Act of 2003, H.R. 3313 (108th Cong., 1st Sess.). This proposed court-stripping provision has itself been challenged as being of dubious constitutionality. See Jason J. Salvo, Comment, Naked Came I: Jurisdiction-Stripping and the Constitutionality of House Bill 3313, 29 Seattle U. L. Rev. 963 (Summer 2006); Maxim O. Mayer-Cesiano, On Jurisdiction-Stripping: The Proper Scope of Inferior Federal Courts' Independence from Congress, 8 U. Pa. J. Const. L. 559 (May 2006); J. Spencer Jenkins, Note, 'Til Congress Do Us Part: The Marriage Protection Act, Federal Court-Stripping, and Same-Sex Marriage, 40 New Eng. L. Rev. 619 (Winter 2006); Sarah Kroll-Rosenbaum, Note, The Marriage Protection Act: A Lesson in Congressional Over-Reaching, 50 N.Y. L. Sch. L. Rev. 809 (2005-2006); Michael J. Gerhardt, The Constitutional Limits to Court-Stripping, 9 Lewis & Clark L. Rev. 347 (Summer 2005); Theodore J. Weiman, Comment, Jurisdiction Stripping, Constitutional Supremacy, and the Implications of Ex Parte Young, 153 U. Pa. L. Rev. 1677 (2005).

Economic arguments

Economic arguments on the impact of same-sex marriage focus on the effects on same-sex couples, businesses, employers, and governments. UCLA Law School economist and policy researcher Dr. M. V. Lee Badgett has studied the impact of same-sex legal marriage on all four of these groups.

Impact on Same-sex Couples: Badgett finds that exclusion from legal marriage has an economic impact on same-sex couples. According to a 1997 General Accounting Office study requested by Rep. Henry Hyde (R), at least 1,049 US Federal laws and regulations grant rights and responsibilities to legally married couples. A later 2004 study by the Congressional Budget Office finds 1,138 statutes related to marriage benefits. Many of these laws govern property rights, benefits, and taxation. Same-sex couples are ineligible for spousal and survivor Social Security benefits. Badgett's research finds the resulting difference in Social Security income for same-sex couples compared to opposite-sex married couples is US$5,588 per year. The federal ban on same-sex marriage and benefits through the 1996 Defense of Marriage Act (DOMA) extends to federal government employee benefits. For example, after the 2006 death of former Massachusetts Congressman Gerry Studds (D), the first openly gay member of Congress, his legal spouse Dean Hara was denied the estimated $114,337 annual pension to which Hara would have been eligible if their Massachusetts marriage was recognized on the federal level. According to Badgett's work, same-sex couples face other financial challenges against which legal marriage at least partially shields opposite-sex couples:

• potential loss of couple's home from medical expenses of one partner caring for another gravely ill one

• costs of supporting two households, travel, or emigration out of the US for an American citizen unable to legally marry a non-US citizen

• higher cost of purchasing private insurance for partner and children if company is not one of 18% that offer domestic partner benefits

• higher taxes: unlike a company's contribution to an employee's spouse's health insurance, domestic partner benefits are taxed as additional compensation

• legal costs associated with obtaining domestic partner documents to gain some of the power of attorney, health care decision-making, and inheritance rights granted through legal marriage

• higher health costs associated with lack of insurance and preventative care: 20% of same-sex couples have a member who is uninsured compared to 10% of married opposite-sex couples

• current tax law allows a spouse to inherit an unlimited amount from the deceased without incurring an estate tax but an unmarried partner would have to pay the estate tax on the inheritance from her/his partner

• same-sex couples are not eligible to file jointly or separately as a married couple and thus cannot take the advantages of lower taxes via the marriage bonus

While state laws grant full marriage rights (Massachusetts) or some or all of the benefits under another name (Vermont, New Jersey, California, etc.), these state laws do not extend the benefits of marriage on the Federal level, and most states do not currently recognize same-sex marriages or civil unions from other states.

One often overlooked aspect of same-sex marriage are the potential negative effects on same-sex couples. While the legal benefits of marriage are numerous, same-sex couples would face the same financial constraints of legal marriage as opposite-sex married couples. Such potential effects include the marriage penalty in taxation. Similarly, while social service providers usually do not count one partner's assets toward the income means test for welfare and disability assistance for the other partner, a legally married couple's joint assets are normally used in calculating whether a married individual qualifies for assistance.

Impact on Businesses: Dr. M. V. Lee Badgett's research estimates the potential impact on businesses of same-sex marriage legalization to be $2 billion to the wedding industry alone. Badgett derives this estimate by calculating the amount spent on weddings if a) half of same-sex couples marry and b) each couple spends 1/4 the average amount spent on an opposite-sex wedding (US$27,600 average wedding cost / 4 = US$6,900 per same-sex couple).

Impact on Employers: In terms of employers where marriage opponents fear higher benefit costs, Badgett and Mercer Human Resources Consulting separately find less than 1% of employees with a same-sex partner sign up for domestic partner benefits when a company offers them. Badgett finds less than 0.3% of Massachusetts firms' employees signed up for spousal benefits when that state legalized same-sex marriage.

Impact on Governments: A 2004 Congressional Budget Office (CBO) report examines the impact of allowing the 1.2 million Americans in same-sex domestic partnerships in the 2000 Census to marry and finds the impact to be comparatively small in terms of the huge Federal budget. While some spending on Federal programs would increase, these outlays would be offset by more savings in other spending areas. The report predicts that if same-sex marriage was legalized in all 50 states and on the Federal level, the U.S. government would bring in a net surplus of US$1 billion per year over the next 10 years. In terms of specific programs' spending the report states:

Recognizing same-sex marriages would increase outlays for Social Security and for the Federal Employees Health Benefits (FEHB) program, CBO estimates, but would reduce spending for Supplemental Security Income (SSI), Medicaid, and Medicare. Effects on other programs would be negligible. Altogether, CBO concludes, recognizing same-sex marriages would affect outlays by less than $50 million a year in either direction through 2009 and reduce them by about $100 million to $200 million annually from 2010 through 2014.

The CBO study counters the economic argument by some U.S. critics of same-sex marriage against governmental recognition on the grounds that the public should not have to shoulder the burden of increased taxes and insurance premiums to cover the associated costs.

Other arguments

The Weekly Standard, commentator Stanley Kurtz argues allowing same-sex marriage blurs other common law precedents and will lead to the legalization of a variety of non-traditional relationships.

• Polygamy. The gist of this argument is that the traditional definition of marriage involves two components, a commitment to one person of the opposite sex, and that changing one of these components (restricting it to members of opposite sexes) would necessarily lead to a change in the other component (restricting it to only one person).
• Polyamory. Defined as the practice whereby a person has more than one long term loving relationship in their life, with the knowledge and acceptance of others they are involved with, in whatever form is chosen by those involved. This can include long term stable group marriages, or stable couples who have external partners as well as their 'primary' partner. A polyamorous civil union in the Netherlands in 2005 sparked many comparisons with gay marriage on American conservative blogs. Most practitioners of polyamory in the United States are skeptical of all forms of marriage, however.
• Incestuous marriages. The natural aversion most people feel toward incestuous relationships does not vary depending on sexual orientation.
• Marriages of convenience for tax or other reasons. This however, seems to be more of an argument against government-sanctioned marriage in general, not just same-sex marriage.
• Human-animal marriage. Non-human animals, however, do not have the legal standing to consent into a marriage contract.

Etiquette

The standard form of address for same-sex spouses is that where the couple has taken one name, they may be addressed as "The Messrs. William and Harry Fitzgibbon" or "Mmes. Emily and Lucia March"; otherwise, they may be addressed individually, as is done for other married couples with different surnames.

See also

• A Union in Wait
• Adelphopoiesis
• Blessing of same-sex unions
• Adoption by same-sex couples
• Marriage gap
• Marriage rights and obligations
• Marriage, unions and partnerships by country
• Religion and sexual orientation
• Timeline of same-sex marriage
• Traditional marriage movement
• Uniting American Families Act
• List of LGBT couples

Notes and references

• Mass. governor orders 26 gay marriages registered, Breaking Legal News, April 3, 2007

Bibliography

• Boswell, John (1995). The Marriage of Likeness: Same-sex Unions in Pre-modern Europe. New York: Simon Harper and Collins. ISBN 0-00-255508-5.
• Wolfson, Evan (2004). Why Marriage Matters: America, Equality, and Gay People's Right to Marry. New York: Simon & Schuster. ISBN 0-7432-6459-2.
• Boswell, John (1994). Same-sex Unions in Premodern Europe. New York: Villard Books. ISBN 0-679-43228-0.
• Cere, Daniel (2004). Divorcing Marriage: Unveiling the Dangers in Canada's New Social Experiment. Montreal: McGill-Queen's University Press. ISBN 0-7735-2895-4.
• Chauncey, George (2004). Why Marriage?: The History Shaping Today's Debate over Gay Equality. New York: Basic Books. ISBN 0-465-00957-3.
• Dobson, James C. (2004). Marriage Under Fire. Sisters, Or.: Multnomah. ISBN 1-59052-431-4. {{cite book}}: Text "Marriage under Fire: Why We Must Win This War" ignored (help)
• Larocque, Sylvain (2006). Gay Marriage: The Story of a Canadian Social Revolution. Toronto: James Lorimer & Company. ISBN 1-55028-927-6.
• Spedale, Darren (2006). Gay Marriage: For Better or For Worse? What We've Learned From the Evidence. New York: Oxford University Press. ISBN 0-19-518751-2.
• Robert P. George, Jean Bethke Elshtain (Eds.), ed. (2006). The Meaning of Marriage: Family, State, Market, And Morals. Dallas: Spence Publishing Company. ISBN 1-890626-64-3.
• Caramagno, Thomas C. "Irreconcilable Differences? Intellectual Stalemate in the Gay Rights Debate." Westport, CT: Praeger, 2002. ISBN 0-275-97721-8