HOMOSEXUAL (SAME-SEX)
MARRIAGES:
LEGAL ASPECTS
Civil and religious aspects of marriage
Concerns by legislators and courts
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Marriage is a unique practice, in that it is both:
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a religious sacrament or ritual performed by churches, synagogues etc., and |
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a legal registration controlled by the state which brings many
rights, benefits and responsibilities to the spouses. |
Some couples in North America have a full religious marriage; they obtain a license
from the state and go to their church, mosque, synagogue or temple to be married. Others
have a secular marriage: they purchase a license and are later married by a
Justice of the
Peace or other state-sanctioned individual. Many European countries have a total
separation of church and state: a couple will go to a government office and obtain a civil
marriage. At this point, they are married as far as the state is concerned, but the
religious organization (if any) that they are affiliated with will consider them to be
still single individuals. They may then elect to go through a second marriage ceremony in
their place of worship.
Governments do not regulate other religious rituals or ceremonies -- e.g. who can be baptized, or ordained, or take communion, or
become a member of a congregation. But they must decide who can be legally married,
because of the status, tax benefits and legal responsibilities that are extended
only to
married couples. Also, their criteria for eligibility for marriage must meet the
requirements of state, province and federal constitutions. Religious institutions are free
to design their own criteria, no matter how discriminatory. Often "church and
state" have differing rules regarding who may marry. For example, the Roman Catholic
church might prohibit the marriage of a paraplegic man because he could not engage in
sexual intercourse and thus procreate. However, the state would have no reservations about
providing a marriage license to the same individual. On the other hand, some religious
groups can and do marry gay or lesbian couples who cannot obtain a marriage license from
the state. These rituals are most frequently called "union ceremonies" or by
some similar name.
Concerns by legislators and courts:
An anonymous third-year gay law student did a literature search to find out what
arguments had been used in court and legislative bodies to justify the ban on same-sex
marriages. 2 He found 5 reasons, to which we have added three:
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Procreation argument: the purpose of marriage is to procreate; making
babies requires a heterosexual couple. However, nobody appears to take this argument to
its logical conclusion and terminate or ban all marriages where one partner is impotent,
infertile, elderly, or has decided to not have children. In addition,
lesbian couples can and do have children; all they need is artificial
insemination, just like many heterosexual couples in which the husband is
infertile. | |
Determining who is the legal parent: Lord Mansfield's rule presumes
that children born to a married woman are a product of the husband and the wife. Some have
expressed concern over how to establish the parenthood within a homosexual marriage. This
is does not seem to be a problem:
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the spouse bringing children into the marriage would be the parent; the other spouse
could try to adopt if they wished |
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both lesbian spouses could be considered parents of any child born into their marriage |
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both gay spouses could adopt any children brought into their family |
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Argument from historical tradition: We have not allowed homosexuals in
the past to marry. That is true, but until a few decades ago, we did not allow people of
different races to marry. Before that, in some states, we did not allow
African-American slaves to
marry. The institution of marriage has been in a continual state of flux for
centuries. | |
The Defense of Marriage Act: Many states have passed DOMA laws which
they believe will excuse them from recognizing gay or lesbian marriages performed in other
states. But some constitutional experts feel that the "full faith and credit"
clause of the U.S. Constitution makes such laws unconstitutional. Also, if same-sex
couples cannot have the same rights in one state as they do in another, then their ability
to travel within the U.S. would be restricted. And the right to travel has been well
established by the courts. Finally, the U.S. Supreme Court decided in a recent Colorado
voter initiative case that a law which is designed to reduce the civil and human rights of
a specific minority is unconstitutional. What is a more fundamental human right than the
right to marry? | |
No compelling state interest: Legislation must
fulfill a compelling state interest in order to be constitutional. Some
feel that there is no need to extend equal rights to gays and lesbians.
But public opinion polls consistently indicate that the vast majority of
homosexuals feel that the right to marry is very important - to them.
Also, married people tend to be more monogamous than singles; monogamy
lessens the frequency of transmission of HIV (which leads to AIDS), and other STDs. | |
It would cost too much: This is a valid point. Giving gays and lesbian
couples the same rights as heterosexual couples would indeed increase the tax burden.
Married couples typically pick up over 1,000 responsibilities, benefits and rights
from the federal government and hundreds from their state government. So,
it is cheaper for governments to deny homosexuals the right to marry.
Companies would have to extend dental, medical and other employee benefits
to homosexual spouses. But think of how
much more money could be saved if the government cut off all benefits for red-heads, or
African-Americans, or people over 6' tall...or from any other minority.
Fairness requires that people be treated equally. | |
Gay marriages threatens the institution of marriage: This is presented
as a self-evident fact by many theologians, legislators, judges, etc. But
others are mystified by this belief. They would not feel that their marriage was threatened if a gay or lesbian couple down the street suddenly was given a
marriage license to put on their wall, dental and medical benefits, survivor pension
benefits, various protections for their children, etc. | |
Most people are against gay marriages: This is also true. Males and
older people in particular oppose same-sex marriages in the U.S. But then, most people in racially
segregated areas were opposed to integration during the 1960's. Most people in those
states which prohibited mixed race marriages were opposed to the legalization of those
marriages when the U.S. Supreme Court declared the state laws to be unconstitutional.
Making some people feel more relaxed is not a sufficient reason to deny others equal
rights under law. |
Related section on this web site:
Copyright © 1996 to 2005 by
Ontario Consultants on Religious Tolerance
Last update: 2005-JAN-25
Author: B.A. Robinson
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