A Look at Gay Marriage in the United States


PHIL 105


November 13, 2003


The American government, founded on the ideals of men wishing to escape persecution and tyranny, is a secular institution shaped by the Constitution and it’s Amendments. Over the two hundred plus years that America has been a country many infractions, oversights and misinterpretations have occurred which have unfairly inhibited the freedom of the American people. This truth can be seen in the continued refusal by the government as a whole to accept, legalize or recognize same sex marriages, which has led to unrest and dissention among the homosexual community and its supporters. This was an issue that was brought up in Dan Savage’s, The Kid.


Same sex marriage, although a recent “hot topic,” is neither new, nor an unnatural product of the twentieth century, as many claim. Evidence of social acceptance of gay marriage can be found in Egyptian culture as far back as 2600 B.C., as well as in ancient Rome and medieval Europe. (Eskridge 17) More recent evidence of gay marriages has been found in colonial America, as well as during the twentieth century in East Coast communities such as Boston and Harlem. During both world wars, official marriage certificates could be obtained for gay couples in Harlem on a somewhat legal basis. (Eskridge 39-44) Despite the evidence of these fairly common unions, many of our law makers strongly oppose the legalization of the practice in America, based on the opinion that as heterosexuals they hold a sexual and therefore social superiority to homosexuals.


Homophobia in America surfaced during the 1950s and 60s and was soon met by the protests and resistance movement of the homosexuals. Because of the civil rights movement, which was in full swing, the gay acceptance movement was overshadowed and received diminished media attention. (Eskridge 44) Since the original Civil Rights Movement, the Gay Rights Movement has moved to center stage in American Civil Rights debate.


These basic rights, denied not just to some, but all homosexuals are mainly concerned with the institution of marriage. The argument can be made that marriage is something that homosexuals shouldn’t want to take part in, but this is incorrect. The legal status involving marriage gives spouses certain state and federal benefits such as “automatic inheritance, burial determination, divorce protections, immunity from testifying against spouse,” certain membership, taxation and insurance breaks to which all people, including homosexuals are entitled to. Despite this long list of unattainable benefits, same sex marriage is still being denied due to the moral dilemmas some feel surround the issue. Many ask, “Can marriage be simply redefined in the law? Should an institution that is available for deadbeat dads and convicted felons be denied law-abiding lesbian mothers of young children? Can a fundamental right to marry be unequally dispensed?” (Sullivan 87)


The answer is yes, marriage can and should be redefined by the law. Vermont’s legislature passed a law that legally recognizes a “civil union,” but it does not include all the benefits of marriage heterosexual couples are afforded.


In 1996 President Clinton signed into the law the “Defense of Marriage Act. The act defined marriage as being between two people of the opposite sex, as well as making it legal for one state to deny a marriage certificate of another state if it is between two people of the same sex (Sullivan 201). This piece of legislation ‘legally’ discriminates against the estimated ten percent of the American population. All fifty states currently refuse to recognize same sex marriages, however Vermont, California, Hawaii, and most recently Massachusetts have begun to take steps to recognize the relationships of homosexuals.


Hawaii’s brush with same sex marriages represents an up and coming trend of court battles between homosexual couples and state governments. In Baehr v. Lewin, the Hawaii Supreme Court agreed that a total ban on same sex marriages violated the Hawaii Constitution. The Court’s ruling stated that “ Homosexuals in contracted ‘domestic partnerships’ were not to be denied pension of insurance benefits or inheritance of other state tax deductions available to spouses, thereby assuring fairness as taxpayers and equal treatment as employees – but not including the state of matrimony.” The ruling disappointingly lacked the marriage recognition clause, and to the dismay of gay rights activists, the