Pursuit of a Constitutional Same- Sex Marriage Equal Rights

Life, Liberty, and the Pursuit of Happiness unless you love someone of the same sex and want to get married. A constitutional right denied to a minority gruop due to values established that will be viiolated by the need for love and a legel commitment to cherish and honor one another until death do they part. This is so controvorsely that these same sex partners can 't experience marriage due to values, aka, ingorance among many Americans who continue to slide down the slippery slope. The preverbeial slipey slope once it starts it cna 't stop and remains forever thus, they are considered values. These values provoke fear of the obvious answers to allowing smae sex marriage. The fear of many that this value prevents happiness is said to be an argument based on values that same sex couples if we let them marry we will then allow polygamy, incest, and bestiality of course. This holds up true and has an acronym to define it (PIB).polygamy, incest, and bestiality (PIB) An argument that surfaced before Loving opened marriage to all races raises its head again in opposition to same-sex marriage: the slippery slope argument. If we let same sex people marry, where will it stop? Will society permit underage marriages, polyamorous groups, incestuous unions, even marriages with animals? This argument urges us to take a stand at the top of the slope, in the belief that preventing same-sex marriage is necessary to prevent the other “horribles” listed by opponents of same-sex marriage. This parade of horribles is so frequently invoked by opponents of same-sex marriage that it has been abbreviated in the literature to the “PIB argument”—for polygamy, incest, and bestiality (Corvino 2005). However, as Araujo writes, “no one has ever demonstrated that legalizing gay marriage logically entails the recognition of a marriage among two men, three women, their siblings, a horse, and a brace of pelicans.” Sadly the rights of these citizens are not allowed due to the obvious thought process assuring many the truth that two men, three women, their siblings, a horse, and a brace of pelicans were united in love and matermony in Masuttues when we allowed our furst gay marriage in .2012.. Thus, they are considered wild animals out of control, so we control the same sex marriages byignoring their importance to the diverse group and to Ameircas as it reflects daily in our socity, views, obvious ignorance and even pliticaly we are affected by this issue. .
The opposition to same-sex marriage in the United States
At their root the arguments against same-sex marriage are primarily arguments against homosexuality. They stem largely from what Eskridge and Spedale call “the politics of disgust,” a revulsion by many against what they consider unnatural, dirty practices, which might pollute them and are therefore immoral (Eskridge and Spedale
2006, 220-3). In religious traditions that accept the Old Testament, homosexuality is an abomination because of injunctions against it in Genesis, Leviticus, and Deuteronomy.
Christians add the condemnations of St. Paul.
Somewhere in these prohibitions arose the idea that homosexuality is a choice, an idea that persisted until the last century, although it is still widespread in the writings of those who oppose the emancipation of homosexuals. A person can choose or not to sin,

1 1995. The first country to allow same-sex marriage, as opposed to registered partnerships or civil unions, was the Netherlands in 2001. Now LGBT couples can be married in
Belgium, which passed a law permitting marriage in 2003; in Spain and Canada since
2005; in South Africa, since 2006; and in Massachusetts since 2004.
It must be made clear, however, that only in Canada is the legal status of couples

same-sex marriage have residency requirements that do not apply to heterosexual marriage. In Massachusetts, married homosexuals cannot file their federal income tax jointly because of DOMA.
Civil unions or registered partnerships are also available nationwide in nineteen countries and in regions of three other countries. In the United States, these unions are recognized in seven states and the District of Columbia, and will be recognized in two other states beginning in 2008.
Despite the ravages of AIDS and the public opposition to homosexuality, the movement towards same-sex marriage was quietly gaining strength in the American
LGBT community during the late 80’s and early 90’s. The AIDS crisis actually helped the movement in two ways: on the one hand, it was argued that marriage would reduce promiscuity among male homosexuals; on the other hand, stories were emerging of devoted same-sex couples suffering tragically when one became ill and the other had no legal right to hospital visits, medical decisions, or to property after a partner’s death
(Chauncey 2004, 87-122).
In the U.S., a pattern developed: movement towards marriage in the courts was countered by legislative action, nowhere more dramatically than in Hawaii. It almost became the first state to recognize same-sex marriage when in 1993 the state supreme court ruled in Baehr v. Lewin that banning marriage seemed to violate the state’s Equal
Rights Amendment. The supreme court remanded the case to a lower court to determine whether the state had a “legislature. The same pattern—a court interpretation of the state constitution overruled by a constitutional amendment—played out in Alaska in 1998. Hawaii now allows same-sex couples some rights as partners, as do New Jersey and Maine, but nowhere near the complete rights of marriage.
Vermont was the next state where LGBT activists and lawyers thought they had a chance of success. The Gay and Lesbian Advocates and Defenders (GLAD) brought thecompelling interest” in denying marriage to LGBT people.
Unfortunately, the lower court waited too long to take up the case, so that it began deliberations on the same day that the U.S. Senate passed DOMA in 1996. The tide of support turned, so that although the lower court in Hawaii found for the LGBT couples

As a political and a legal matter, decriminalization lands one in both an interesting and, for some, uncomfortable social position. In important respects, gay people’s relationship to the state at this moment shares some similarities with the position of freed men and women in the nineteenth century in the period between the ratification of the Thirteenth and Fourteenth Amendments. Black people were no longer enslaved or enslavable, yet they did not enjoy robust civil and political rights either. They were not citizens or full civil and political subjects, rather they were freed-people, not free people. It took the 1866 Civil Rights Act and ultimately the Fourteenth Amendment to the Constitution to transform Black people into African-Americans. The middle ground they lived in during the period

makes it possible that, in the interim between a state court decision ordering the recognition of same-sex marriages and a state constitutional amendment reversing that decision, same-sex marriages will be recognized in an individual state. Yet this lag between judicial action and democratic response is familiar in all states where state constitutional amendment procedures are time-consuming and cumbersome. These states, too, have always been trusted to handle their own courts and constitutions. There is no reason to believe that the temporary recognition of same-sex marriages in a state presents such a special and immediate danger to the nation that it can be handled only by a federal constitutional amendment.20 Even where a state supreme court orders the recognition of full-fledged, same-sex marriage in a state, the ruling is limited in its reach to the state itself. A state court ruling favoring same-sex marriage could not require other states to recognize such marriages. That could be accomplished only by additional hypothetical rulings by courts of last resort in other states requiring their own jurisdictions to recognize such marriages. A pro-gay-mar-

There has never been a national definition of marriage independently imposed on all the states by
Congress or federal courts. created the appearance of “confusion and chaos”; to others, they illustrated the principle that the people of the states should be permitted to govern themselves with minimal federal intrusion.
Repudiating that long history, the FMA would impose on the states a single, nationwide definition of marriage. It would prohibit state courts or even state legislatures from authorizing same-sex marriages. The supporters of the
FMA freely acknowledge that much. But in addition, it would tell states how to interpret their own state constitutions and state statutes by prohibiting them from “construing” their own laws so as to permit same-sex marriages or to grant marriagelike benefits to same-sex couples.
Although state legislatures might be free to adopt “marriage-lite” institutions like domestic partnerships or civil unions that accord some of the benefits of marriage to same-sex couples, those laws might be practically unenforceable in state courts. State courts, asked to referee a dispute between the couple and the state over whether they qualified for benefits under a domestic partnership law, would be prohibited by the Musgrave and Senate versions of the
FMA from “construing” the law to grant “the legal incidents [of marriage]” to the couple.
Purporting to “protect” the states from gay marriage, the FMA tramples their historic prerogative to set family policy.
Yet federalism is working on this subject. All over the nation cities and states are debating whether to grant some form of legal recognition to same-sex couples. States and localities are trying a variety of approaches, from complete nonrecognition to recognizing domestic partnerships that grant some benefits to recognizing civil unions that grant all of the benefits of marriage itself. California, for example, has legislatively recognized domestic partnerships that include many of the benefits and protections of marriage.52 Connecticut has legislatively created civil unions that grant samesex couples all of the “legal incidents” of marriage.
53 These experiments test whether

passed in the Hawaii case of three same-sex couples who wanted to marry before the Vermont Supreme Court in Baker v. State (1997). The court ruled that denying the benefits of marriage to LGBT couples was unconstitutional and directed the Vermont legislature to remedy the situation. Those benefits were established as “civil unions” and were signed into law by
Governor Howard Dean in 2000. In California, the state legislature enacted registered domestic partnerships, with almost all the rights and benefits of marriage for partners in established relationships. However, marriage itself was still denied to these couples.
Governor Arnold Schwarzenegger vetoed a bill to recognize same-sex marriage in 2005
(Eskridge and Spedale 2006, 237-9).
Emboldened by the relative success of Baker v. State, in 2001 GLAD and its allies brought suit in Boston on behalf of seven couples in Goodridge v. Department of Public
Health. As the case was being argued, in 2003, the U.S. Supreme Court’s ruling in
Lawrence v. Texas swept away sodomy laws, insofar as they criminalized private conduct between adults. Although the reaction to the decision in Lawrence was such that the
Federal Marriage Amendment (FMA) was proposed in Congress, a major obstacle to equality for LGBT people was gone. Marriage as a civil right seemed possible.
The case for same-sex marriage is based, ultimately, on the legitimacy of the claim to equal rights by LGBT people. As Mary Bonauto, the lead attorney for GLAD, writes, “the de jure exclusion of same-sex couples from marriage is a massive affront to the dignity of all LGBT Americans.” In its 2003 decision, the Massachusetts Supreme
Judicial Court agreed: “Civil marriage is at once a deeply personal commitment to another human being and a highly public celebration of the ideals of mutuality, companionship, fidelity, and family” (Bonauto 2005, p. 4). The court found “no rational basis” in the Massachusetts government’s policy of denying marriage licenses to samesex couples. The court directed the state to begin issuing marriage licenses to LGBT couples 180 days after it handed down its decision. In Cambridge, the first licenses were issued at 12:01 am on May 17, 2004, to two women who had stood in line for twentyfour hours to claim first place. Behind them were 250 other couples.
But the same pattern that overturned the apparent successes in Hawaii and Alaska still threatened: the Massachusetts state legislature could enact a state constitutional amendment banning same-sex marriage. Although an amendment was voted down in 2005, a citizen initiative was started to place a constitutional amendment on the ballot.
This initiative had to receive 50 votes in two successive sessions of the legislature in order to be on the statewide ballot in 2008. On June 14, 2007, the proposed ballot initiative received only 45 votes (17 fewer than during the previous session in January) and same-sex marriage is now secure in Massachusetts until at least 2012. Governor
Deval Patrick said: “Today’s vote is not just a vote for marriage equality. It was a vote for equality itself” (Boston Globe 2007, p.1).
Litigation over same-sex marriage continues. New York and Maryland have determining or receiving “benefits, rights, and privileges” (Congressional Budget
Office 2004, p.1).
The statutory provisions counted by the Congressional Budget Office here are only on the federal level. Because each state has its own provisions, and in many cases they vary from each other, the total number of provisions affecting marriages in the U.S. is much larger. Married people can rent or buy houses and other property without trouble. They share in health, pension, and insurance benefits, and claim support in divorce settlements.
They can claim immigration rights for a spouse of a different nationality. They may not wish to negotiate a surface-mine lease, but the ordinary economic processes of life stated that “a marriage is between a man and a woman, and I think we ought to codify that one way or another.”6 More recently, the President issued a Proclamation in
4 See Alliance for Marriage, Legal Impact of the Federal Marriage Amendment, available at http://www.allianceformarriage.org/reports/fma/colorchart.cfm.
5 Amy Fagan and Bill Sammon, Bush Weighs Marriage Amendment; Awaits Court Rulings on Gay Unions, WASH. TIMES, Aug. 1, 2003, at A1. (“Sen. Rick Santorum, Pennsylvania Republican, and Senate Majority Leader Bill Frist, Tennessee Republican, have voiced support for a constitutional amendment. An aide to Mr. Frist said members of the House and Senate also are exploring ways to defend traditional marriage.”).
6 Jesse J. Holland, Senate subcommittee to take gay marriages after August recess, ASSOC. PRESS, Aug. 1, 2003.
2
support of “Marriage Protection Week, 2003,”7 an effort by certain religious and conservative groups to consolidate their attacks on same-sex families.8
In contrast, a number of prominent conservative leaders have spoken out against the proposed constitutional amendment on federalism grounds. Former Representative Bob Barr (R-Ga.), one of the authors of the federal Defense of Marriage Act (“DOMA”) (discussed below), has expressed his opposition to the proposed constitutional amendment, stating:
Marriage is a quintessential state issue. The Defense of Marriage Act goes as far as is necessary in codifying the federal legal status and parameters of marriage. A constitutional amendment is both unnecessary and needlessly intrusive and punitive. . . . As any good federalist should recognize, [DOMA] leaves states the appropriate amount of wiggle room to decide their own definitions of marriage or other similar social compacts, free of federal meddling.9
In a similar vein, with respect to the issue of protection for same-sex couples, Vice President Dick Cheney has stated: “I think different states are likely to come to different conclusions, and that’s appropriate. I don’t think there should necessarily be a federal policy in this area.”10
The Defense of Marriage Act
In 1996, Congress enacted the Defense of Marriage Act (DOMA). At the time, no state recognized same-sex marriages, but it was believed that one or more states might soon do so, either through legislation or by court decision. The Act contains two substantive provisions. The first seeks to relieve states of their obligation to accord full faith and credit to same-sex marriages that are lawfully entered into in other jurisdictions.11 The second provides that the federal government will not recognize such marriages.12
7 Marriage Protection Week, 2003, By the President of the United States of America: A Proclamation, Oct. 3, 2003. See http://www.whitehouse.gov/news/releases/2003/10/20031003-12.html
8 See National Gay and Lesbian Task Force, Marriage Protection Week’ Sponsors: Are They Really Interested in ‘Building Strong and Healthy Marriages? available at http://www.ngltf.org/downloads/MarriageProtectionWeek.pdf.
9 Bob Barr, Leave Marriage to the States, WASH. POST, Aug. 21, 2003. Similarly, conservative constitutional scholar Bruce Fein has argued that “conservatives should squelch a rash constitutional amendment pending in the House of Representatives to prohibit states from recognizing homosexual marriages and thus place the issue off-limits for democratic discourse. The amendment would enervate self-government, . . . and clutter the Constitution with a nonessential.” Bruce Fein, Constitutional Rashness, WASH. TIMES, Sept. 2, 2003.
10 Alan Simpson, Missing the Point on Gays, WASH. POST, Sept. 5, 2003, (quoting Dick Cheney).
11 Section 2 of DOMA provides in the following terms that States need not respect the marriages of same-sex couples from other states:
The paper itself begins with an introduction that lets the readers know what the paper will say. You should include a brief overview of the political debate and current policy, and a well-thought out thesis statement. Your stance on current policy relating to the controversy should be included in the thesis. Anthropological Association (AAA) issued a statement strongly opposing a constitutional amendment limiting marriage to heterosexual couples. The AAA depended on its professional expertise when it wrote:
The results of more than a century of anthropological research on households, kinship relationships, and families, across cultures and through time, provide no support whatsoever for the view that either civilization or viable social orders depend upon marriage as an exclusively Three-fifths of a marriage: why not civil unions?
Civil unions in lieu of marriage have been accepted by some legislators and activists. When same-sex marriage seems politically unattainable, some state legislatures and governors—like Vermont Governor Dean in 2000—settle for civil unions or domestic partnerships. Some legislators, such as those in New Hampshire, believe that civil unions provide partners with the same “ ‘rights, responsibilities and obligations’ as heterosexual marriage, differing in name only” (Moskowitz 2007). Some LGBT activists believe that settling for civil unions or domestic partnerships is a realpolitik strategy, with civil unions serving as a step towards same-sex marriage.
However, civil unions or domestic partnerships are not equivalent to marriage.
Accordingly, CFI maintains that LGBT persons are entitled to the option of marriage. To clarify CFI’s position, this paper will discuss the distinctions between such legal partnerships and marriage in three sections: the economic and social differences between the two; the second-class citizenship implied in civil unions or domestic partnerships; and the anomalous disparity between adoption laws and marriage laws in many states.
1. Economic and social problems with civil unions and domestic partnerships
Three states in the U.S. offer civil unions: Vermont, which was the first to do so,
Connecticut, and New Jersey; New Hampshire will offer them beginning in January
2008. Four others—California, Maine, Washington, and the District of Columbia— provide domestic partnerships, with Oregon providing them in January 2008. Hawaii has a law providing “reciprocal benefits” in lieu of unions or partnerships.
In establishing civil unions or domestic partnerships, legislatures have attempted to reproduce the economic and social benefits of marriage. For example, in Vermont, they have enacted laws enabling mutual financial support between partners; laws on domestic relations, child custody and support; and laws providing spousal benefits
(Vermont Secretary of State 2006). The other states have substantially the same provisions. But they cannot ensure recognition for civil unions in other states and they cannot ensure federal benefits. Only marriage can do that:
Marriage can affect a person’s eligibility for federal benefits such as Social
Security. Married couples may incur higher or lower federal tax liabilities than they would as single individuals In all, the General Accounting Office has counted 1,138 statutory provisions—ranging from the obvious cases just mentioned to the obscure (landowners’ eligibility to negotiate a surface-mine lease with the Secretary of Labor)—in which
Never before in the history of the country have we amended the
Constitution in response to a threatened
(or actual) state court decision.
This is no time to start. anticipated federal court ruling. Never before have we adopted a constitutional amendment to limit the states’ ability to control their own family law. Never before have we dictated to states what their own state laws and state constitutions mean. Never before have we amended the Constitution to restrict the ability of the democratic process to expand individual rights.
This is no time to start.
A Federal Amendment Is
Unnecessary
A constitutional amendment banning same-sex marriage is unnecessary, even if one opposes same-sex marriage as a matter of policy. The Proposed Federal
Marriage Amendment
Several versions of a federal marriage amendment are being considered in Congress.
All of the versions would, at a minimum, forbid states to recognize same-sex marriages.
One version of the amendment was introduced in the House of Representatives in 2004 by Rep. Marilyn Musgrave (R-CO) as H.J. Res.
56. The Musgrave version would amend the
Constitution as follows:
Marriage in the United States shall consist only of the union of a man and a woman. Neither this Constitution or
[sic] the constitution of any State, nor state or federal law, shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups.
In the Senate, an amendment with somewhat different language has been introduced as S.J. Res. 1. The Senate version would amend the Constitution as follows:
Marriage in the United States shall consist only of the union of a man and a woman. Neither this Constitution, nor the constitution of any State, shall be construed to require that marriage or the legal incidents thereof be conferred upon any union other than the union of a man and a woman.
A third version of the amendment would consist solely of the first sentence of the above two amendments: “Marriage in the United
States shall consist only of the union of a man and a woman.”
The second sentences of the Senate version and the Musgrave version are similar but differ in three substantive respects. First, the Senate version drops the Musgrave version’s reference to “state or federal law.” Second, the Senate version replaces the Musgrave version’s reference to “marital status” with “marriage.” Third, the
Senate version replaces the Musgrave version’s reference to “unmarried couples or groups” with “any union other than the union of one man and one woman.” Although in some respects the Senate version appears narrower than the Musgrave version, its practical effect may be nearly as sweeping argument here is directed entirely to whether a constitutional amendment should dispose of the matter. Whether states should recognize same-sex marriages is one question. Whether they should be permitted to recognize same-sex marriages is a separate question. A person who opposes same-sex marriage on policy grounds can and should also oppose a constitutional amendment foreclosing it.4 An opponent of gay marriage might oppose a constitutional amendment for any one or combination of the following reasons: (1) he believes that federalism— the traditional, decentralized structure of American government—is the best answer to most disputes about public policy;
(2) he is confident that his opposition will prevail without the need for a constitutional amendment; (3) although he opposes gay marriage, he is open to subsequent persuasion by arguments and evidence against his current view and wants public policy to remain flexible enough to adjust over time. Not every policy position one holds must be imposed forevermore on the whole nation by constitutionalizing it. For the same reasons, one who is unsure how he feels about same-sex marriage can and should oppose a constitutional amendment foreclosing it.
To summarize the four main points: First, a constitutional amendment is unnecessary because federal and state laws, combined with the present state of the relevant constitutional doctrines, already make court-ordered, nationwide same-sex marriage unlikely for the foreseeable future. Therefore, an amendment banning same-sex marriage is a solution in search of a problem. Second, a constitutional amendment defining marriage would be a radical intrusion on the nation’s founding commitment to federalism in an area traditionally reserved for state regulation, family law. There has been no showing that federalism has been unworkable in the area of family law. Third, a constitutional amendment banning same-sex marriage would be an unprecedented form of amendment, cutting short an ongoing national debate over what privileges and benefits, if any, ought to be conferred on same-sex couples and preventing democratic processes from recognizing more individual rights.
Voters have enacted constitutional bans on gay marriage in a number of battleground states that will decide the 2012 election, among them Ohio and Florida. Mr. Obama 's Wednesday announcement came a day after residents in North Carolina, a state the president hopes to win in November, voted overwhelmingly in favor of a constitutional amendment defining marriage as between a man and a woman. North Carolina is also hosting the Democratic National Convention, where Democrats were set to battle over whether to make gay marriage rights a plank of their party 's official platform.
The issue holds potential perils for conservative Democrats, and benefits for Mr. Romney

A constitutional amendment defining marriage would be a radical intrusion on the nation’s founding commitment to federalism. Fourth, the amendment as proposed is constitutional overkill that reaches well beyond the stated concerns of its proponents, foreclosing not just courts but also state legislatures from recognizing same-sex marriages and perhaps other forms of legal support for same-sex relationships.
Whatever one thinks of same-sex marriage as a matter of policy, no person who cares about our Constitution and public policy should support this unnecessary, radical, unprecedented, and overly broad departure from the nation’s traditions and history

Marriage Equality for Same-Sex Couples
ABSTRACT: Same-sex couples encounter barriers to health care that include concerns about confidentiality and disclosure, stigma and discriminatory attitudes and treatment, limited access to health care and health insurance, and often a limited understanding of their health risks. Same-sex couples and their families are adversely affected by the lack of legal recognition of their relationships, a problem with major implications for the health of same-sex couples and their families. Tangible harm has come from the lack of financial and health care protections granted to legal spouses, and children are harmed by the lack of protections afforded to families in which partners are married. However, the recent Supreme Court ruling, The United States v Windsor, which afforded equal treatment for legally married same-sex couples will provide many important health and financial benefits. Evidence suggests that marriage confers health benefits to individuals and families, yet a sizable proportion of individuals do not experience these health benefits because of their sexual orientation. Additional data suggest that same-sex couples who live in states with bans on same-sex unions experience adverse health outcomes. Civil marriage is currently available to same-sex couples in only thirteen states and the District of Columbia and honored by one state. The American College of Obstetricians and Gynecologists endorses marriage equality for same-sex couples and equal treatment for these couples and their families and applauds the Supreme Court’s decision as an important step in improving access to benefits received by legally married same-sex couples. However, additional efforts are necessary to ensure that same-sex couples in every state can receive these same benefits.
"We cannot accept the view that Amendment 2 's prohibition on specific legal protections does no more than deprive homosexuals of special rights. To the contrary, the amendment imposes a special disability on those persons alone. Homosexuals are forbidden the safeguards that others enjoy or may seek without constraint"
-Justice Anthony Kennedy, writing for the majority of the U.S. Supreme Court in the decision overturning Colorado 's Amendment 2 referendum
It’s a tired argument by now that the problem with these staged spectacles of homo kinship is that they are boring, though of course they are. How can it be that in such a short period of time the spectacularity of gayness has become so dull? Consider Ellen DeGeneres—only a few short years ago a trail-blazer as the first out lesbian character on television whose very being was regarded as a threat to all things descent and christian, now a cute and innocuous daytime talk show host whose lesbianism is less her signature than are her sneakers. Perhaps this is best understood as the consequence of an increasingly successful civil rights movement—as the claims of the movement gain greater acceptance in the larger society those claims become less alarming. Or maybe it is the other way around—diminished alarm motivates political possibility. More radical critics would argue that the same-sex marriage movement has accelerated and privileged the more assimilationist aspects of the gay rights struggle.5
What we are witnessing in the gay community, I would argue, is a radical substitution or transformation of the nature of homosexual desire. Into the psychic space created by decriminalization has rushed a desire for governance, a desire for recognition—recognition by legal and state authority. The de jure refusal to all gay people to satisfy this desire has formed the basis of the new civil rights claims made on behalf of “the community.” Take, for instance, the complaint filed in the case challenging New York’s marriage law. Lambda Legal—the preeminent gay and lesbian rights legal organization—argued on behalf of the five same-sex couples who sought to be married that the marriage law denied Lauren Abrams and Donna Freeman-Tweed’s right of “their families
Body:
The FMA is constitutional overkill. not avoid that prohibition simply by the ruse of calling its fleet an “armada” instead of a
“navy.”65 Similarly, a person could not be convicted of treason on the testimony of one witness, rather than the constitutionally required two witnesses, simply by calling the same offense “Schmeason.” Even some drafters of the FMA have argued that the limitation of
“marriage” to “a man and a woman” prohibits both same-sex marriage and civil unions.66
Since the first sentences of all versions of the proposed FMA are substantively identical, any of them might be held to prohibit legislatively created civil unions.
While it is not a foregone conclusion that the first sentence of the various versions will prohibit the legislative enactment of civil unions and domestic partnerships, there will certainly be a reasonable constitutional argument to that effect. If the purpose of the second sentence in the Senate version is to make it clear that legislatures (but not courts or executives) may grant same-sex couples “the legal incidents” of marriage, it does not clearly accomplish that goal. Why not make legislative power over civil unions and domestic partnerships explicit rather than a negative implication? Moreover, this very uncertainty about the constitutionality of civil unions and domestic partnerships will be used in state legislatures as an argument against creating them to begin with. State legislators will be wary of acting in an unconstitutional fashion and will be especially wary of creating a status full of entitlements and responsibilities for same-sex couples only to have that status stripped away in subsequent litigation. Thus, even if the revised amendment is ultimately interpreted to allow the legislative creation of civil unions and domestic partnerships, it will have delayed and deformed democratic debate on the issue.
All versions of the FMA suffer another potential overbreadth problem. Almost every provision in our Constitution contains a state action requirement. (The only relevant exception is the Thirteenth Amendment, which forbids slavery.) Yet there is no explicit state action element in any of the pending versions of the FMA. For example, there is nothing akin to “Neither the United States nor any State shall recognize any marriage other than the union of one man and one woman.” On its face, the FMA appears to forbid both public and private recognition of same-sex marriages.
At the extreme, it could be interpreted to prohibit religious denominations from recognizing same-sex marriages, as some now do. More likely, it could be interpreted to prohibit private employers from making benefits available on an equal basis to married employees and employees with same-sex partners. At the very least, it could be interpreted to prohibit courts from deciding disputes over private benefits accorded same-sex couples because to do so might mean granting same-sex couples “the legal incidents” of marriage.
The application of the FMA to private action is not an inevitable interpretation; supporters deny that they intend such an individuals desire intimate, committed relationships no less than heterosexuals. Such relationships are a critical component of a person’s life. Heterosexuals have the right to marry and share their life with another person who has the same sexual orientation. Why should LGBT individuals be denied this fundamental right? Moreover, freedom to marry whom they choose means recognition that they are not second-class citizens, just as the same freedom meant that African-Americans were legally equal to everyone else. In the
Goodridge decision, the Massachusetts Supreme Judicial Court made precisely this point:
“The Massachusetts Constitution affirms the dignity and equality of all individuals. It forbids the creation of second-class citizens” (Chauncey, p. 134).
Marriage carries with it a series of rights and responsibilities inherent in the name of an institution that has been bolstered by law over many centuries. Married couples do not have to fight authorities for visitation rights in hospitals, for power of attorney over medical decisions, or for inheritance rights. They can petition to adopt children without question about their status. And they can make divorce settlements. It is impossible to divorce without being married, and divorce laws contemplate an equitable division of property following dissolution of the marriage. Therefore, married couples benefit from the special status accorded marriage even when the marriage is breaking up.
Given our present legal and social system, which provides a preferred status to married couples in many respects, LGBT people rationally insist on “marriage” and distinguish it from civil unions. No matter how liberating civil unions and registered partnerships may be, there is no substitute for marriage: “Saying a civil union is the same as marriage does not make it so. Civil unions are a newly invented category, neither universally recognized or understood…Why relegate a minority group to a separate category?” (New York Times 2007, editorial).
3. The anomaly of adoption laws
Although marriage is forbidden to same-sex couples in all but one state, by a strange anomaly, adoption—that is, the formation of a family with children—is open to
LGBT couples and even to LGBT individuals in a majority of states. Children may be adopted by LGBT individuals or same-sex couples in 34 states; only Florida is logically consistent in its animosity to LGBT persons, forbidding both same-sex marriage and expressly forbidding either LGBT individuals or couples to adopt a child. (Wald believes that Anita Bryant’s crusade, mentioned above, is responsible for Florida’s blanket

The Overbreadth of All Proposed
Versions of the FMA
All proposed versions of the FMA would forever prohibit the democratic recognition of same-sex marriages. Since marriage shall consist
“only of the union of a man and a woman,” no state legislature will be free to authorize same-sex marriages. Similarly, the people of a state will be prohibited from recognizing same-sex marriages through initiative.
Further, no state could amend its own constitution to provide for the recognition of same-sex marriages. Normal democratic politics would simply be shut down on this issue.
All proposed versions of the FMA would be unprecedented intrusions on the historic power of the states to define marriage. They would also intrude on the historic power of state courts to interpret their own state constitutions.
Those powers have been basic components of our system of federalism since the founding period. Nothing in any of the proposed versions eliminates those affronts to federalism. If the fear prompting the push for an amendment is that judges will require states to recognize same-sex marriages, all of the proposed versions of the FMA are overly broad responses to that concern. As noted above, they would not only prevent judges from ordering the recognition of same-sex marriages, they would also prevent legislatures and popular majorities from authorizing them.
All of the proposed versions of the FMA might also call into question legislatively enacted civil unions and broad domestic partnership laws. Civil unions, which (in Vermont and
Connecticut) grant to same-sex couples all of the privileges and rights of marriage under a different name, might be prohibited by all pending versions of the FMA, which strictly limit marriage to opposite-sex couples. Once the amendment in any of its forms is ratified, opponents of civil unions can be expected to argue that legislatures cannot circumvent the substance of the amendment

If the fear is that courts will impose same-sex marriage on the country through the Equal
Protection Clause or the Due Process Clause, that fear is exaggerated and hypothetical.
But even if I have been wrong about the likelihood of a court-led marriage revolution, the FMA is not a carefully tailored response to that problem. A much narrower amendment, dealing only with courts’ role in deciding the particular question of same-sex marriage, could be proposed. Even such a narrower amendment would be unnecessary to prevent the imposition of court-ordered nationwide same-sex marriage for the foreseeable future.
But at least it would not amount, as the FMA does, to killing a gnat with a sledgehammer.
The Senate version of the FMA, which has been promoted as a narrower amendment allowing state legislatures to recognize civil unions and domestic partnerships, corrects none of the problems of the Musgrave version on which it is based. Like the Musgrave version, it is unnecessary, is an unprecedented intrusion on our nation’s historic commitment to federalism, is unlike any other constitutional amendment in that it limits the ability of the democratic process to expand individual rights, and is overly broad as a remedy for its proponents’ stated concerns about judicial activism.
A constitutional amendment would have the effect of allowing the people of some states to order the people of other states not to experiment with their own state family law. riage amendment, the FMA reflects a deeply anti-democratic impulse, a fundamental distrust of normal political processes.

Moreover, although proponents of the
FMA are no doubt sincere in their defense of traditional marriage, the FMA may be largely a cynical way to defend it. As the Senate leaders supporting an amendment have acknowledged, popular opposition to gay marriage is gradually waning.63 There was a “stronger societal consensus [against same-sex marriage] at the time” Congress passed DOMA in
1996 than there is today.64 If present trends in popular opinion continue, that consensus will be even weaker in the future. In general, time has not been on the side of those who oppose equal civil rights for gays. The FMA appears to be an effort by opponents of same-sex marriage to set in constitutional cement their current advantage in popular opinion before they lose that advantage. Though they claim primarily to fear the courts, and not popular opinion, it appears to be the people themselves they fear. The people simply cannot be trusted, on this view, to adhere to the “right” position in the future.

Evaluate the issue based on in-class material and a minimum of 3 outside sources.
Provide a rationale to justify your point of view and use references that lend support to your point of view.
Conservatives,
including many who publicly oppose gay marriage as a matter of public policy, have been especially troubled by the anti-federalism consequences of a federal marriage amendment. Second, an amendment would bar the people of all the states, even those states that had approved the amendment, from ever reconsidering the issue democratically (except through another federal constitutional amendment).
Under the present system, states may opt for one policy choice now but are free to revise their own choice at a later date on the basis of new knowledge, arguments, and experience.
The FMA would preclude that normal democratic process, binding the people of the states forever to an earlier decision made by an earlier generation lacking their experience.
Finally, the proposed FMA would be “peculiarly” anti-democratic, that is, anti-democratic in a way that no other amendment has ever been. It would be the first time we amended the Constitution to limit states’ ability to decide democratically to expand rights and to include more people in the fabric of national life. Up to now, the constitutional constraints on democratic processes have been designed to limit states’ ability to diminish rights and to exclude people from national life. Rather than setting a constitutional floor on rights and inclusion, for the first time in our history the FMA would set a constitutional ceiling on them.61
The FMA would thus be a significant and needless departure from our legal history and traditions. A constitutional amendment would have the effect of allowing the people of some states to order the people of other states not to experiment with their own state family law. The people of the states, traditionally free to act either through popular initiative or through their own state legislatures, would lose their right to consider the issue of same-sex marriage (and, as a practical matter, perhaps even domestic partnerships or civil unions). Their family law would be frozen by the will of people in other states or, alternatively, by the will of people in their own state from an earlier generation.
Further, domestic partnership laws and civil unions in states and localities across the country might be effectively repealed. Democratic outcomes would be reversed. Public debate through normal democratic processes would be cut short. As conservative legal scholar Bruce
Fein wrote in the Washington Times:
The amendment would enervate selfgovernment.
. . . Simple majority rule fluctuating in accord with popular opinion is the strong presumption of democracies. But that presumption and its purposes would be defeated by the constitutional rigidity and finality of a no-same-sex-marriage amendment.62
Of course, in certain areas democratic experimentation should be limited, by constitutional provisions if necessary. States should not be free, for example, to experiment with racial segregation or with denying women the right to vote. But such limitations on the democratic process should be imposed, and historically have been imposed, only to vindicate individual rights, not to deny individual rights. Federalism is working on this subject. All over the nation cities and states are debating whether to grant some form of legal recognition to same-sex couples. as a federal marriage amendment would do, starts the debate with a strike against it.
It is true that there have been limited historical exceptions to the general rule that states control their own family law, including the definition of marriage. State power to define marriage is not plenary; there are a few narrowly confined constitutional limits. The Supreme Court decided in Loving v. Virginia,54 for example, that a state anti-miscegenation law was unconstitutional.
That decision was grounded in two parts of the
Fourteenth Amendment that explicitly restrain state power: the fundamental right to marry protected by the Due Process Clause and the anti-racist principles of the Equal Protection
Clause. The decision altered state law to uphold individual rights and to make the institution of marriage more inclusive, not to derogate individual rights and to make marriage more exclusive.
The decision was thus distinct in substance and spirit from the FMA.55
There has been only one congressional limit placed on the ability of a state to define marriage for itself. In the 19th century,
Congress required Utah and a few other states to relinquish polygamy as a condition for entering the union. Yet in so doing, Congress was exercising its existing constitutional power to admit new states, an issue not present in the FMA context. Further, Congress did not attempt to limit other states’ ability to recognize plural marriages. It was not imposing a single definition of marriage on all states via the Constitution. The fact that there has been only one such very limited congressional attempt to override a state’s definition of marriage in more than 200 years suggests how deeply rooted respect for state power in this area is. In short, there is simply no precedent for amending the Constitution to intrude on states’ structural constitutional power to determine their own definitions of marriage.
Federalism is not an inexorable command.
First, Congress may set national policy on matters within its constitutional powers, even at the expense of states that dislike the national policy. Second, the federal government, including all three of its branches, has a role in ensuring that the states respect constitutional rights. But neither of these important exceptions to federalism applies to an amendment

A Federal Amendment
Intrudes on Federalism
A constitutional amendment would be a radical intrusion on federalism. From the founding of the nation, our federal system has been designed such that the federal government has limited and enumerated powers and the state governments have residual powers.
The states have been free to legislate on all matters not reserved for federal authority
(such as interstate commerce) or for the people.
State power has been limited only insofar as necessary to protect nationhood, the national economy, and individual rights. The basic constitutional design was best explained by James Madison in Federalist no. 45:
The powers delegated by the proposed
Constitution are few and defined. Those which are to remain to the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce. . . . The powers reserved to the several States will extend to all objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and in the internal order, improvement and prosperity of the State.50
The nation’s commitment to federalism is enshrined in the Constitution’s enumeration of congressional powers in Article I and in the reservation of other powers to the states or the people in the Tenth Amendment. Specifically, states have traditionally controlled the content of family law, including the definition of marriage, in their own jurisdictions. Though federal law has recognized marriages validly performed in the states, there has never been a national definition of marriage independently imposed on all the states by Congress or federal courts. Concern over preserving the traditional authority of the states has been a central theme of the Supreme Court’s recent jurisprudence.
In its recent Commerce Clause cases, the Court has emphasized the need for limits on federal power in the interest of preserving states’ domain over areas like criminal law and family law.51 Those decisions upholding the role of the states were supported by the Court’s most conservative justices: Chief Justice William
Rehnquist and Justices Clarence Thomas and
Antonin Scalia.
Federalism is not valuable simply as an abstract or dusty tradition. It has a couple of practical benefits especially relevant to the debate over a federal marriage amendment.
First, it allows incremental innovation in public policy. Second, it maximizes individual choice and liberty by allowing citizens to live in states that most closely suit their preferences.
Let’s examine each of these benefits in more detail.
First, federalism has served the country well insofar as it has allowed the states to experiment with public policies, to determine whether those policies work or need to be amended, and then to follow or to decline to follow the example of other states. Acting as laboratories of social change, the states have been responsible for some of the most important innovations in American law. Those innovations have included allowing women to vote, setting maximum hours for working, adopting minimum wage requirements, and prohibiting child labor
A Federal Amendment
Would Be Unusually
Anti-Democratic
A constitutional amendment would be peculiarly anti-democratic, the first of its kind in the nation’s history. At first, this claim is counterintuitive. To be adopted using the usual procedure, an amendment would be
“superdemocratic” in the sense that it requires two-thirds approval of both houses of
Congress and the approval of three-fourths of the states. But even though an amendment requires a supermajority in Congress and among the states, it has three anti-democratic effects that should be considered. The first two are common to all constitutional amendments; the third is peculiar to the FMA. The anti-democratic effects of all constitutional amendments are reason enough to be very cautious in adopting them, but the FMA magnifies democratic concerns Federal Constitutional Doctrines
The Full Faith and Credit Clause
Supporters of the FMA argue that if a state court imposes same-sex marriage on a state, then courts in other states or federal courts might require states in their jurisdictions to recognize such marriages under the Constitution’s
Full Faith and Credit Clause (FFCC) of Art. IV,
Sec. 1.25 This fear is hypothetical and exaggerated.
As a nation, we have addressed this issue. In
1996, in reaction to litigation for same-sex marriage in Hawaii, Congress passed, and President
Bill Clinton signed, the Defense of Marriage
Act. DOMA defines marriage as the union of one man and one woman for purposes of federal law, such as entitlement to Social Security benefits and federal taxation.26 DOMA also provides that states may refuse to recognize same-sex marriages performed elsewhere.27 A state court decision recognizing same-sex marriages in a given state does not by itself make
DOMA invalid. No federal or state court has held DOMA unconstitutional; so far, in the aftermath of Goodridge, the only federal courts to examine the matter have upheld DOMA.28
Let’s examine the particulars of the FFCC fear. Supporters of a constitutional amendment warn that Adam and Steve, or Sue and
Ellen, will go to a state that has just recognized same-sex marriages, get married there, and then return to their home state demanding recognition of their union under the FFCC. By this method, supporters conjecture, gay marriage would gradually sweep the nation.29
However, the FFCC has never been interpreted to mean that every state must recognize every marriage performed in every other state.30 It is true that, under the place-of-celebration rule, states usually recognize the validity of marriages performed in other states. But each state also reserves the right to refuse to recognize a marriage performed in another state—or performed in a foreign country, such as Canada—if that marriage would violate the state’s public policy.31Under this public policy exception to the general rule of recognition, states will generally overlook small or technical differences in the marriage laws of other states. For example, the fact that a marriage was witnessed by only two people (as required in a sister state), instead of three (as required in the home state) would not usually prevent recognition of a marriage validly performed in the sister state.
But under the public policy exception, states do not ordinarily overlook major differences in the marriage laws of foreign jurisdictions. For example, under longstanding principles, states are not required to recognize a marriage they deem incestuous, even if that marriage was valid in the state where it was performed.32 The
Supreme Court has never suggested that this practice is invalid under the FFCC.
Forty-five states have already declared by statute or state constitution, or both, that it is their public policy not to recognize same-sex marriages.33 Even in the four states without gay marriage, state policy may be adequately declared on the issue to allow those states to refuse to recognize same-sex marriages from a foreign jurisdiction. In that sense, DOMA and the 45 “little DOMAs” passed by the states are probably redundant, a form of added insurance against the recognition of same-sex marriage by activist judges. Even former Republican congressman Bob Barr, who opposes same-sex marriage and was the main author of
DOMA, has argued that DOMA is more than adequate to prevent the imposition of nationwide same-sex marriage.34
Under the traditional understanding of the
FFCC and choice-of-law principles, then, it is doubtful that state or federal courts would
7
No federal or state court has held DOMA unconstitutional; the only federal courts to examine the matter have upheld DOMA. require states to recognize same-sex marriages performed elsewhere.35 This does not mean, of course, that litigants might not be able to find a state or federal court judge willing to do so.
But it does mean that the chances of having such a ruling withstand appellate review are slim. In fact, in the first attempt of a married gay couple from Massachusetts to have their marriage recognized in their new home state,
DOMA was upheld against precisely this
FFCC challenge.36
Substantive Federal Constitutional Doctrines
It is also unlikely that the Supreme Court or the federal appellate courts, for the foreseeable future, would declare a constitutional right to same-sex marriage under present understandings of substantive doctrines arising from the Fourteenth Amendment’s Due
Process Clause or the Equal Protection Clause.
No federal or state appellate court, to date, has declared such a right under any substantive federal constitutional doctrine. Thus, once again, we are dealing with a purely hypothetical fear of a possible future ruling by a court of last resort.
The Due Process Clause. Lawrence v. Texas,37 the 2003 Supreme Court decision using the
Due Process Clause to strike down Texas’s law criminalizing homosexual sex, has been transformed by some popular media and by FMA supporters into a pro-gay-marriage decision. It is not that. In Lawrence, the Court emphasized that the Texas law violated the right to liberty insofar as it intruded on private sexual relations between adults in the home.38 The interest involved was the liberty to avoid state intrusion into the bedroom via criminal law. It did not involve the liberty to seek official state recognition of the sexual relation, along with all the benefits state recognition entails.39
Lawrence involved the most private of acts (sexual conduct) in the most private of places (the home); marriage is widely understood to be a public institution freighted with public meaning and significance.
The Court noted explicitly that it was not dealing with a claim for formal state recognition of same-sex relationships. Especially in light of Justice Scalia’s fretting that same-sex marriage may soon be the child of Lawrence,40 these qualifications signal a Court that seems very unlikely even to address the issue in the near future, much less take the bold step of ordering nationwide recognition of same-sex marriage. Judicial decisions since Lawrence have interpreted it to have a very limited reach.
The Eleventh Circuit, for example, held in
2004 that Lawrence did not render unconstitutional a Florida law that barred homosexuals from adopting children.41 Whether or not such decisions are correct in their application of Lawrence, they do signal that federal courts have been very cautious in its wake. There is simply no ground to believe that they will use
Lawrence as the progenitor of gay marriage any time in the foreseeable future.
A separate argument could be made that same-sex marriage is protected by the fundamental right to marry—also protected by the
Due Process Clause.42 But, again, regardless of the merits of such a claim, since no federal court has yet accepted an argument that the fundamental right to marry extends to gay couples, the possibility of a future ruling on this basis is purely hypothetical and in any event unlikely for the prudential reasons discussed below. The Equal Protection Clause. The Equal
Protection Clause hardly seems more promising in the near term for advocates of gay marriage.
The only justice in Lawrence to embrace this seemingly more gay-marriage-friendly argument, Justice O’Connor, made clear her unwillingness to take the doctrine that far,43 and has since retired from the Court.
Romer v. Evans,44 sometimes cited as an example of judicial activism that might lead to gay marriage, has not had much generative force in fighting legal discrimination against gay people. That may be because of the unprecedented nature of the law the Court confronted in Evans: a state constitutional amendment that (1) targeted a single class of people
(homosexuals) and (2) sweepingly denied them all civil rights protections in every area of life, from employment to housing to education.
8
Judicial decisions since Lawrence have interpreted it to have a very limited reach.
Because the law was so overly broad, the narrow justifications the state offered could not sustain it, leaving only impermissible animus as a motivating force behind the law.45 Evans was one of the few times in the Court’s history when a law failed the lowest level of constitutional scrutiny, the rational basis test.
Unless the Court were to apply strict scrutiny to laws that fence out gay couples from marriage, a step neither it nor any federal court has taken, states will need to show only a rational basis for their marriage laws.
This test requires the state to show only that the law is rationally related to a legitimate governmental end. That is not a difficult task.
Thus, there is little reason to believe a court would strike down all state marriage laws or
DOMA on equal protection grounds, at least given the present state of that doctrine. Certainly, no court has yet done so.
The Exaggerated Fear of a Threat from the
Courts
Aside from the merits of a constitutional claim for same-sex marriage, it is unlikely for practical and historical reasons that the Court would impose it on the nation in the near future. The Court rarely strays far or long from a national consensus on any given issue.46
When it does, it risks its own institutional standing and credibility. Lawrence is no exception to this rule since sodomy laws existed only in a minority of states (13 of 50), were rarely enforced, and were opposed by most Americans at the time the Court struck them down.
By contrast, only one state has recognized same-sex marriages, and laws limiting marriage to opposite-sex couples enjoy broad popular support in most states and nationwide. If the Court were to order same-sex marriage, whether under the FFCC or a substantive constitutional doctrine, it would be opposing almost the entire country. I cannot think of another time the Court has done that in modern times, with the instructive and chastening exception of Roe v. Wade.47 The stark fact remains that no federal court, at any level, has ordered the recognition of same-sex marriages or declared DOMA unconstitutional.
It is possible that a federal district court could declare DOMA unconstitutional or hold a state ban on same-sex marriage unconstitutional.
Such a ruling would be of no consequence, however, since it would be immediately reviewed by the governing appellate court. It is also possible, though very unlikely for the foreseeable future, that such future litigants could find a panel of an appellate court somewhere that would declare DOMA unconstitutional or hold a state ban on same-sex marriage unconstitutional. Such a ruling would also be of little consequence, however, since it would be reviewed en banc or by the Supreme Court, or both. As noted above, given the present state of the relevant constitutional doctrines and the usual reluctance of the Supreme Court to oppose a large national consensus on an important social issue, it is extremely unlikely that the Court would allow such a hypothetical future appellate court ruling to stand. The likelihood is that the Supreme Court would use one of a number of the procedural techniques available to it to dismiss the claim, without even reaching the merits of the issue.48
In short, the fear of court-imposed, nationwide gay marriage is exaggerated and hypothetical.
To amend the Constitution now to prevent it would be to do so on the basis of fear of a future, hypothetical adverse decision by the Supreme Court. Proponents of the
FMA are asking the nation to amend the
Constitution preemptively, something we have never before done.
The Constitution is the nation’s founding blueprint. We should not trifle with it. There have been more than 11,000 proposed constitutional amendments, all supported by advocates who no doubt sincerely believed that their causes required immediate constitutional support in order to save the Republic. Yet leaving out the extraordinary founding period that produced the 10 amendments known as the
Bill of Rights and the extraordinary post–Civil
War period that produced three amendments, we have amended the Constitution only 14 times in more than two centuries. In contrast to the present move to amend the Constitution in anticipation of possible adverse court rulings

ments are not as a valid as your point of view.
Historically, the states themselves have been trusted to rein in the activism of their state courts. riage ruling, as in Massachusetts, would likely be based on the state, not the federal, constitution.
The immediate legal effect of the decision would be confined to the state itself.
Could a pro-gay-marriage ruling in a state affect the outcomes of such litigation in other states by influencing other state counts’ substantive interpretations of their own constitutions?
21 Certainly such a ruling would not bind other states’ interpretations of their own state constitutions. Although courts in sister states might regard the pro-gay-marriage ruling as persuasive authority in the interpretation of their own state constitutions, they would also have a much larger body of contrary authority from other states to follow. The lone state or few states to recognize same-sex marriages will hold the minority view for a very long time. As noted above, judges in most state courts are both accountable to the state’s voters and reversible by democratic processes. Both of those factors will likely make them reluctant, as they historically have been, to impose gay marriage even in their jurisdictions. Homosexuality and Sexual Orientation
Although rarely stated explicitly in the arguments opposing same-sex marriage, the belief that homosexuality is an illness or immoral is a central tenet of such positions. Although there are some who argue that there continues to be controversy over whether or not homosexuality is a healthy variation of adult sexu There is well-documented evidence from decades of social science research indicating that a satisfying marriage contributes to psychological and physical well-being (House et al, 1988; Kiecolt-Glaser & Newton, 2001; Kim & McKenry, 2002; Waite & Gallagher, 2000; Williams, 2003). These studies have demonstrated that married individuals have better mental health, more emotional support, less psychological stress and lower rates of psychiatric disorder than unmarried people.
Same-sex Relationships ality or a sign of pathology, the scientific community has resolved this issue and APsaA

, applications, or ramifications if your policy suggestions were put into place

Background
Same-sex marriage (also known as gay marriage) is marriage between two persons of the same biological sex or gender identity. Legal recognition of same-sex marriage is often referred to as marriage equality. Same-sex marriages can be performed in a secular civil ceremony or in a religious setting.
Definitions
Civil marriage—in the United States, civil marriage, established through a license issued by a state government, grants both legal rights and obligations to two individuals (1). Until recently, civil marriage, as recognized by the federal government, must be between a man and a woman; however, the federal government now must recognize legally married same-sex couples (2, 3).
Religious marriage—religious marriage is a sacrament or rite that provides recognition by a specific religious group. Religious organizations have rules and requirements that are separate from those established for civil marriage (1). Although judges and other public officials have the authority to establish civil marriages, a member of the clergy also has the authority to endorse a civil marriage, leading to significant confusion between the civil and religious aspects of marriage. The legal status of civil marriage comes from the state, not from religious groups.
Civil union—a civil union has a more limited legal scope than civil marriage. A civil union is a legal status designed to confer to a same-sex couple state-based benefits, protections, and responsibilities similar to civil marriage (4). These legal arrangements are not reciprocally recognized in most states, and are not recognized by the federal government.
Domestic partnership—a domestic partnership is a legally recognized partnership between two individuals, who may or may not be of the same sex. A domestic partnership does not provide the same rights, benefits, and protections as a civil union or a civil marriage; advantages conferred by a domestic partnership vary by jurisdiction (1, 5). These legal relationships also are not recognized by the federal government or most other jurisdictions.

Explain your position on current policy and provide recommendations for reform (including specific info on how the policy can be reformed; is it through Congress, the courts, a presidential executive order, etc.?)
Federal and State Legislation
In 1996, the Defense of Marriage Act passed both houses of Congress and was signed into law. Under the law, no U.S. state or political subdivision was required to recognize a same-sex marriage from another state. In addition, this act codified the nonrecognition of same-sex marriages for all federal purposes including, insurance benefits for government employees, Social Security survivors’ benefits, immigration, and the filing of joint tax returns (2, 6). However, in a landmark decision, the Supreme Court struck down section 3 of the Defense of Marriage Act that denied the 1,138 protections and responsibilities of marriage to legally married same-sex couples (3). This decision affirms that all couples who legally marry deserve equal legal respect and treatment (3). As of 2013, civil marriage is available to same-sex couples in California, Connecticut, Delaware, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New York, Rhode Island, Vermont, Washington, and the District of Columbia (5, 7). New Mexico honors out-of-state marriages between same-sex couples (5, 7). Despite the Supreme Court’s ruling, it is important to note that in states where same-sex marriage is not allowed, these states are not required to reciprocally recognize same-sex marriages performed by other states where it is legal (3). It still needs to be determined when legally married same-sex couples living outside of states where same-sex marriage is legal will be able to share the same federal protections, responsibilities, and programs as married heterosexual couples (3). Thirty-six states have passed laws or constitutional amendments prohibiting civil marriages between persons of the same sex (5, 7). As a result, the negative effect of the lack of marriage equality on health and financial health will still remain for many couples. Same-sex couples are vulnerable and must piece together a patchwork of legal and financial documents. For updated information on individual state laws visit www.hrc.org/campaigns/marriage-center or www.freedomtomarry.org.
Psychological Impact of the Denial of Marriage to Same-Sex Couples
Clinical studies of same-sex couples have found that the absence of legally recognized marriage contributes to significant common problems in these relationships, particularly with regards to defining boundaries, receiving familial and societal support and recognition, and valuing the relationship as a legitimate expression of love and commitment (Green, 2004; Greenan & Tunnell, 2003, King & Bartlett, 2006). For many of these couples relationship commitment remains ambiguous, for example they are uncertain when the relationship began or the extent of their mutual obligations. Same-sex couples are also subjected to various levels of stress due to the lack of legal recognition. For example, they may lack inheritance rights, hospital visitation, and health care. Same-sex couples faced with relationship dissolution are also subjected to added stress due to the absence of legal protections for both partners

Should the House of Delegates adopt this recommendation, the Association will have taken no position on the merits of whether same-sex couples should be granted the right to enter into civil marriage. However, it will have affirmed the principle that the states should be permitted to debate and develop their own answers to this and other critical questions touching upon traditional state responsibilities in the area of family law.

The Effect of Marriage Equality on Health
Positive health outcomes are associated with marriage for heterosexual and same-sex couples (8–10). Same-sex couples in legally recognized relationships experience fewer depressive symptoms and lower levels of stress compared with those in similar long-term relationships that lack legal recognition (11).
Lesbian, gay, and bisexual individuals living in states with constitutional amendments banning same-sex marriage have significant increases in mood, anxiety, and substance use disorders (12). Living in states where same-sex relationships have legal recognition appears to diminish mental health differentials between heterosexual and lesbian, gay, and bisexual individuals (13).
Individuals in same-sex couples are far less likely to receive employer-sponsored dependent health care coverage compared with married heterosexual individuals (14, 15). With lower rates of employer-provided health care coverage, same-sex couples are more than twice as likely to be uninsured as married heterosexual couples (14). Policies supportive of same-sex marriage may be effective in reducing health care use and costs among sexual minorities (16).
Discriminatory practices have resulted in individuals in same-sex relationships being prohibited from seeing their partners in the hospital, even with legal documents such as a durable power of attorney (1, 17). However, in 2011, the U.S. Department of Health and Human Services announced new guidance that protects hospital patients’ right to choose their own visitors during a hospital stay, including a visitor who is a same-sex domestic partner (18). The guidance also supports the right of patients to designate the person of their choice, including a same-sex partner, to make medical decisions on their behalf should they become incapacitated (18). Same-sex couples can be prevented from providing consent for medical care or authorizing emergency treatment and health care decisions for nonbiological children or children who are not jointly adopted (1).
Prior to the Supreme Court decision, unless an individual was defined as a spouse or parent under state law, an individual in a same-sex relationship did not have access to the federal Family Medical Leave Act, which allows those eligible to take up to 12 weeks of unpaid leave each year to care for immediate family members (spouse, child, or parent) (1, 19). Now non-federal employees and their same-sex spouses who are legally married can receive this benefit if they reside in a state that recognizes same-sex marriage (20). Same-sex couples who are not defined as legal spouses do not have protections and compensation for families of crime victims in state and federal programs (1, 21). A surviving partner in a same-sex relationship who is not legally married may not be able to sign for the release of the partner’s body from the hospital for funeral or disposition arrangements, even when prior legal arrangements have been made (22, 23).
The Effect of Marriage Equality on Financial Health
A multitude of financial protections are granted to legal spouses, and now to legally married same-sex partners living in states that legally recognize the marriage. Financial protections include differences in taxation, eligibility for Social Security benefits, and rights to shared property. Financial security is intimately tied to access to health care and the health and well-being of women and their families.
When same-sex couples living outside of states where same-sex marriage is legal are able to arrange for domestic partner benefits, the value of the benefit is considered taxable income to the employee under federal law. The only exception is when a domestic partner qualifies as a dependent of the employee under Internal Revenue Service definitions. Because this amount also is considered income, the employer must also pay payroll taxes, such as Social Security on the amount. Additionally, employees cannot use pretax dollars to pay for a domestic partner’s coverage (15). Same-sex couples who are not legally married cannot file joint tax returns and are not eligible for additional federal tax benefits and claims (21).
Legally married same-sex couples living outside of states where same-sex marriage is legal are not eligible for the Social Security and Veteran’s survivor benefits of the deceased partner (21). A surviving partner may not have access to spousal benefits under Worker’s Compensation. They cannot roll a deceased partner’s 401(k) funds into an individual retirement account without paying income tax and, in many states, inheritance taxes on those funds. In many states, the surviving partner is required to pay inheritance taxes on the partner’s portion of any shared assets (24–26). Also, in many states, a partner is not eligible to inherit property if there is no will upon a partner’s death; instead, it passes to the legal next of kin (27). In only a few states, those with marriage equality laws and some domestic partnership laws, can a same-sex partner sue for wrongful death of a deceased spouse (27). Citizens of the United States in a same-sex relationship who are not legally married cannot sponsor their partner or their partner’s family members for immigration and citizenship (1, 28, 29).
Conclusion Conclusion: End the paper with a summary of your point of view and rationale. Discuss possible implications

The “threat” from courts is more imagined than real. At the state level, while advocates of gay marriage may win some battles in state court litigation, they will lose many others.
So far, same-sex marriage has been recognized in only 1 of the 50 states as the result of court order. In any event, as we shall see, state court activism and disregard of state definitions of marriage by local officials are phenomena the states are well equipped to handle without federal interference. Even where a state court orders same-sex marriage in its jurisdiction, that should be a matter for a state to resolve internally, through its own governmental and constitutional processes, as the states have so far done. There is no particular reason to believe New Yorkers will think of judicial “activism” the same way
Iowans do. At the federal level, as we shall see, given the present state of the relevant constitutional doctrines, courts are unlikely to impose gay marriage on the entire nation for at least the foreseeable future. Certainly, no federal court has yet done so. Warnings about judicial activism on this issue, while fashionable, are premature and overblown.
Forty-five states have explicitly declared same-sex marriages contrary to their own public policy, barring recognition of same-sex marriages under state statutes or state constitutions.
10 The 1996 Defense of Marriage Act bars recognition of such marriages for federal purposes.11 It is unlikely that courts will impose immediate, nationwide gay marriage contrary to this powerfully expressed legislative and popular will.
Neither federal nor state courts are likely to order same-sex marriage under the traditional interpretation of the Constitution’s Full Faith and Credit Clause. Nor, for the foreseeable future, are courts likely to mandate same-sex marriage under substantive federal constitutional doctrines, such as the Fourteenth
Amendment’s Due Process Clause or the
Equal Protection Clause. Supporters of a federal amendment have made much of the fact that same-sex marriage lawsuits are pending in several states. Anyone with a printer and enough money for a filing fee can file a lawsuit, of course, and advocates of gay marriage are likely to continue to do so.12 But winning is a very different matter. This paper will now address each of the above points in greater detail.13 4
The “threat” from courts is more imagined than real.
Substantive State Constitutional Law, the
Role of Local Officials, and the National
Effect of Individual State Recognition of
Same-Sex Marriages
Going back to the early 1970s, in cases challenging state marriage laws under substantive doctrines of state constitutions, such as state constitutional equal rights provisions, most state courts have rejected arguments for same-sex marriage.14 Since Goodridge, no state supreme court has definitively addressed the same-sex marriage issue. While advocates of same-sex marriage have won in three state trial courts since Goodridge, they have not won in a single state appellate court and have lost in most state trial courts.15 Although it is still early, Goodridge has not resulted in the deluge of successful state court litigation for same-sex marriage predicted by supporters of the FMA.
The strong resistance of state courts to same-sex marriage should not be surprising since 87 percent of all state court judges are subject to some form of election.16 Thus, state courts are accountable to a public that in most jurisdictions still opposes same-sex marriage by fairly large margins. Public opposition has been strongly reinforced by the passage of constitutional amendments banning gay marriage in several states, all by wide margins. This public resistance will likely make most state courts even more reluctant than federal courts to order the recognition of same-sex marriages.
On the three occasions prior to Goodridge that state courts moved to order the recognition of same-sex marriage in their states under their own substantive state constitutional doctrines— in Alaska, Hawaii, and Vermont—the democratic processes in those states immediately dealt with the issue by preventing the imposition of full-fledged gay marriage. In
Hawaii, for example, the state legislature and the people themselves voted to amend their own constitution to confine decisions about the definition of marriage to the state legislature.
17 In Vermont, the state legislature created a system of civil unions that extends the benefits and responsibilities of marriage (under state law only) to same-sex couples but reserves marriage itself for opposite-sex couples.18
In Massachusetts, the state legislature has been considering a state constitutional amendment to reverse Goodridge.19 There is no reason to believe that the citizens of
Massachusetts or any other state are incapable of dealing with their own courts if they choose to do so. Historically, the states themselves have been trusted to rein in the activism of their state courts. The states certainly have the power to do so, whether or not they choose to use it. Voters in 18 states so far have decided to amend their state constitutions

Gynecologists (the College) advocates for the health and well-being of all individuals and believes that no individual should experience discrimination, including those in same-sex relationships (30). Lack of marriage equality has a negative effect on the health and well-being of women in same-sex relationships and their families (1, 31, 32). The College, therefore, joins numerous other health organizations in endorsing marriage equality for same-sex couples and equal treatment for these couples and their families (33–40). The College applauds the Supreme Court decision on section 3 of the Defense of Marriage Act as an important step in improving access to benefits received by legally married same-sex couples. However, additional efforts are necessary to ensure that same-sex couples in every state can receive these same benefits.
References
1. Pawelski JG, Perrin EC, Foy JM, Allen CE, Crawford JE, Del Monte M, et al. The effects of marriage, civil union, and domestic partnership laws on the health and well-being of children. Pediatrics 2006;118:349–64. [PubMed] [Full Text] ⇦
2. Defense of Marriage Act, Pub. L. No. 104-199, 110 Stat. 2419 (1996). ⇦
3. Human Rights Campaign. The Supreme Court ruling on the Defense of Marriage Act: what it means. After DOMA: what it means for you. LGBT Organizations Fact Sheet Series. Washington, DC: HRC; 2013. Available at: http://www.hrc.org/files/assets/resources/Post-DOMA_General_v2.pdf. Retrieved July 2, 2013. ⇦
4. Human Rights Campaign. Civil unions. Available at: http://www.hrc.org/issues/pages/civil-unions. Retrieved May 13, 2013. ⇦
5. Human Rights Campaign. Marriage center. Available at: http://www.hrc.org/marriage-center. Retrieved May 13, 2013. ⇦
6. General Accounting Office. Defense of Marriage Act: update to prior report. Washington, DC: GAO; 2004. Available at: http://www.gao.gov/new.items/d04353r.pdf. Retrieved May 13, 2013. ⇦
7. Freedom to Marry. Where state laws stand. Available at: http://www.freedomtomarry.org/pages/where-state-laws-stand. Retrieved May 13, 2013. ⇦
8. Herdt G, Kertzner R. I do, but I can’t: The impact of marriage denial on the mental health and sexual citizenship of lesbians and gay men in the United States. Sex Res Social Policy 2006;3:33–49. ⇦
9. Herek GM. Legal recognition of same-sex relationships in the United States: a social science perspective. Am Psychol 2006;61:607–21. [PubMed] ⇦
10. Institute of Medicine. The health of lesbian, gay, bisexual, and transgender people: building a foundation for better understanding. Washington, DC: National Academies Press; 2011. ⇦
11. Riggle ED, Rostosky SS, Horne SG. Psychological distress, well-being, and legal recognition in same-sex couple relationships. J Fam Psychol 2010;24:82–6. [PubMed] ⇦
12. Hatzenbuehler ML, McLaughlin KA, Keyes KM, Hasin DS. The impact of institutional discrimination on psychiatric disorders in lesbian, gay, and bisexual populations: a prospective study. Am J Public Health 2010;100:452–9. [PubMed] [Full Text] ⇦
13. Wight RG, Leblanc AJ, Lee Badgett MV. Same-sex legal marriage and psychological well-being: findings from the California Health Interview Survey. Am J Public Health 2013;103:339–46. [PubMed] [Full Text] ⇦
14. Ponce NA, Cochran SD, Pizer JC, Mays VM. The effects of unequal access to health insurance for same-sex couples in California. Health Aff 2010;29:1539–48. [PubMed] [Full Text] ⇦
15. Center for American Progress, The Williams Institute. Unequal taxes on equal benefits: the taxation of domestic partner benefits. Washington, DC; Los Angeles (CA): CAP; WI; 2007. Available at: http://www.americanprogress.org/wp-content/uploads/issues/2007/12/pdf/domestic_partners.pdf. Retrieved May 13, 2013. ⇦
16. Hatzenbuehler ML, O’Cleirigh C, Grasso C, Mayer K, Safren S, Bradford J. Effect of same-sex marriage laws on health care use and expenditures in sexual minority men: a quasi-natural experiment. Am J Public Health 2012;
102:285–91. [PubMed] [Full Text] ⇦
17. Gay and Lesbian Medical Association. Same-sex marriage and health. Washington, DC: GLMA; 2008. Available at: http://glma.org/document/docWindow.cfm?fuseaction=document.viewDocument&documentid=146&documentFormatId=236. Retrieved May 13, 2013. ⇦
18. Department of Health and Human Services. Medicare steps up enforcement of equal visitation and representation rights in hospitals. Washington, DC: HHS; 2011. Available at: http://www.hhs.gov/news/press/2011pres/09/20110907a.html. Retrieved May 23, 2013. ⇦
19. C.F.R. § 825.122 (2012). ⇦
20. Human Rights Campaign. Family and Medical Leave Act for non-federal employees. After DOMA: what it means for you. LGBT Organizations Fact Sheet Series. Washington, DC: HRC; 2013. Available at: http://www.hrc.org/files/assets/resources/Post-DOMA_FMLA_v2.pdf. Retrieved July 2, 2013. ⇦
21. General Accounting Office. Defense of Marriage Act. Washington, DC: GAO; 1997. Available at: http://www.gao.gov/archive/1997/og97016.pdf. Retrieved May 13, 2013. ⇦
22. Equality Maryland. Marriage inequality in the state of Maryland. Silver Spring (MD): EM; 2006. Available at: http://www.equalitymaryland.org/uploads/5019/original/marriage_inequality_in_maryland_copy.pdf. Retrieved May 13, 2013. ⇦
23. Human Rights Campaign. To have and to hold? Maybe not. True stories from same-sex couples denied the protections of marriage in life and death. Washington, DC: HRC; 2005. Available at: http://preview.hrc.org/documents/tohaveandhold.pdf. Retrieved May 13, 2013. ⇦
24. Human Rights Campaign. How do I cut the inheritance taxes for my partner? Washington, DC: HRC; 2000. Available at: http://preview.hrc.org/4670.htm. Retrieved May 13, 2013. ⇦
25. Lambda Legal. Tax considerations for same-sex couples. New York (NY): LL; 2010. Available at: http://www.lambdalegal.org/publications/tax-considerations. Retrieved May 13, 2013. ⇦
26. American Civil Liberties Union. LGBT relationships. Available at: http://www.aclu.org/lgbt-rights/lgbt-relationships. Retrieved May 13, 2013. ⇦
27. Lambda Legal. Relationship recognition for same-sex couples across the United States. Available at: http://data.lambdalegal.org/pdf/690.pdf. Retrieved May 13, 2013. ⇦
28. Lambda Legal. Sexual orientation and immigration: the basics. Available at: http://data.lambdalegal.org/pdf/445.pdf. Retrieved May 13, 2013. ⇦
29. Human Rights Campaign. Rights and protections denied same-sex partners. Available at: http://preview.hrc.org/issues/5478.htm. Retrieved May 13, 2013. ⇦
30. American College of Obstetricians and Gynecologists. Access to women’s health care. College Statement of Policy. Washington, DC: ACOG; 2009. ⇦
31. Hammond CB. Time to change. Obstet Gynecol 2006;107:549. [PubMed] [Obstetrics & Gynecology] ⇦
32. O’Hanlan KA. Health policy considerations for our sexual minority patients. Obstet Gynecol 2006;107:709–14. [PubMed] [Obstetrics & Gynecology] ⇦
33. American Psychiatric Association. Position statement on support of legal recognition of same-sex civil marriage. Arlington (VA): APA; 2005. Available at: http://www.psychiatry.org/File%20Library/Advocacy%20and%20Newsroom/Position%20Statements/ps2005_SameSexMarriage.pdf. Retrieved May 13, 2013. ⇦
34. American Psychoanalytic Association. Position statement on marriage. New York (NY): APSAA; 2008. Available at: http://www.apsa.org/About_APsaA/Position_Statements/Marriage_Resolution/abid/470.aspx. Retrieved May 13, 2013. ⇦
35. American Psychological Association. Sexual orientation and marriage. Washington, DC: APA; 2004. Available at: http://www.apa.org/about/policy/marriage.aspx. Retrieved May 13, 2013. ⇦
36. American Psychological Association. Resolution on marriage equality for same-sex couples. Washington, DC: APA; 2011. Available at: http://www.apa.org/about/policy/same-sex.aspx. Retrieved May 13, 2013. ⇦
37. American Medical Association. Health care disparities in same-sex partner households. Policy No. H-65.973. Chicago (IL): AMA; 2009. Available at: https://ssl3.ama-assn.org/apps/ecomm/PolicyFinderForm.pl?site=www.ama-assn.org&uri=%2fresources%2fdoc%2fPolicyFinder%2fpolicyfiles%2fHnE%2fH-65.973.HTM. Retrieved May 13, 2013. ⇦
38. American Academy of Nursing. Support for marriage equality. Washington, DC: AAN; 2012. Available at: https://aan.memberclicks.net/assets/marriage%20equalitystatement_7-11%2012.pdf. Retrieved May 13, 2013. ⇦
39. Position paper on lesbian health. American Medical Women’s Association. J Am Med Womens Assoc 1994;49:86. ⇦
40. Promoting the well-being of children whose parents are gay or lesbian. Committee on Psychosocial Aspects of Child and Family Health. Pediatrics 2013;131:827–30. [PubMed] [Full Text

Point Value: 150 points, 15% of final grade Objective: Now that the course is further along in content, students should have a better understanding of controversial topics that are of interest. In this paper, students will write a policy position paper that analyzes one politically debatable issue (the topic must be different than the student’s topic on the first paper). In this paper you will look at one political issue in-depth and then clearly identify policy recommendations for the U.S. government. Political decisions and policies are complicated, and taking an informed stance on any particular issue requires that you spend time researching and developing an educated opinion. This paper will also require you to understand current government policy on an issue, and then give specific methods for reforming the policy. The goal of this assignment is to allow each student the freedom to research an issue that is meaningful to him/her, while practicing the process of becoming an informed democratic citizen who can persuasively and knowledgably present a case for one side of a policy debate. Please speak with your instructor if you are having trouble thinking of a topic. Assignment: Write a paper that analyzes one debatable policy issue that has been discussed in the text, lecture, or discussion this semester (you may clear topics that have not been discussed with the instructor). A substantial portion of the paper’s argument should be devoted to the specific policy that is in place today, and how this policy should be reformed. Be sure to mention the legal process of reform (through a congressional bill, state bill, constitutional amendment, court decision, etc.). Papers should provide an overall evaluation of the major viewpoints on the selected issue and the rationale behind your own position on the issue. Use a formal tone for the paper, and back up your arguments with references and facts. Below is a list of essential components:
Title and Introduction: Start with the title of your paper.

The Robust Dialogue on This Issue in the States
States have been grappling with the issue of protections for same-sex couples since at least the 1970’s. The first challenge to the exclusion of lesbian and gay couples from civil marriage was decided in 1971.13 Since then, there have been a number of challenges across the country. All of these challenges were unsuccessful until 1993, when the Hawaii Supreme Court held that denying same-sex couples the right to marry may constitute unlawful sex discrimination.14 While the case was working its way back up to the Hawaii Supreme Court, the voters of Hawaii passed a state constitutional amendment allowing the state legislature to limit marriage to different-sex couples. The litigation subsequently was dismissed as moot by the Hawaii Supreme Court.15
In 1998, an Alaska trial court held that denying same-sex couples the right to marry violated the state constitutional right to privacy and the right to be free from discrimination on the basis of sex.16 Following that decision, the voters amended the Alaska Constitution to define marriage as the union of one man and one woman, effectively ending the lawsuit.
In 1999, the Vermont Supreme Court held that refusing to provide committed same-sex partners with the benefits and privileges granted to married couples violated the Vermont Constitution’s Common Benefits Clause.17 In response to the Court’s instruction to remedy this constitutional infringement, the Vermont legislature enacted a law permitting same-sex couples to enter into civil unions. Couples in a civil union are granted all of the
12 Section 3 of DOMA states:
In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.”
Defense of Marriage Act, Pub. L. No. 104-199, sec. 3(a), 1996 U.S.C.C.A.N. (110 Stat.) 2419, 2419 (codified at 1 U.S.C. Sec. 7).

Position Papers Model UN Preparation Many conferences require that each delegation submit a position paper—an essay detailing your country 's policies on the topics being discussed in your committee. Writing a position paper will help you organize your ideas so that you can share your country 's position with the rest of the committee. If you conduct extensive research, a position paper should be easy to write.Most conferences that require position papers ask for them about one month before the conference so that staff members can read them and get a feel for the direction debate will take. If the conference you are attending does not require a position paper, you should still consider writing one to help you organize your research and prepare your speeches. Many delegates use their position papers as their opening remarks.View a sample position paper to help you write an effective position paper. How to Write a Position Paper Writing a position paper might appear to be a daunting task, especially for new delegates. But with enough research, you will find that writing a position paper will be easy and useful.Position papers are usually one to one-and-a-half pages in length. Your position paper should include a brief introduction followed by a comprehensive breakdown of your country 's position on the topics that are being discussed by the committee. A good position paper will not only provide facts but also make proposals for resolutions.Many conferences will ask for specific details in a position paper, so be sure to include all the required information. Most conferences will provide delegates a background guide to the issue. Usually, the background guide will contain questions to consider. Make sure that your position paper answers these questions. A good position paper will include: A brief introduction to your country and its history concerning the topic and committee; How the issue affects your country; Your country 's policies with respect to the issue and your country 's justification for these policies; Quotes from your country 's leaders about the issue; Statistics to back up your country 's position on the issue; Actions taken by your government with regard to the issue; Conventions and resolutions that your country has signed or ratified; UN actions that your country supported or opposed; What your country believes should be done to address the issue; What your country would like to accomplish in the committee 's resolution; and How the positions of other countries affect your country 's position.
____________________________________
Knowing the Arguments:
How to argue in a position paper
Below, the goal, objective, scope, and product for a position paper are specified along with a suggested strategy for writing a position paper.
Goal
Critical awareness of your own position, critical understanding of other positions, and willingness to consider and to engage other positions.
Objective
Reasoned argument for a position showing awareness of alternative positions and reasoning.
Product
Written document that explicitly argues and aims to persuade. A genre commonly used by policy analysts outside government is the position paper (sometimes called a discussion paper or “white” paper). Products might run to book-length in some circumstances, or they might be much shorter, perhaps two to six pages.
Scope
Either a “big picture” of conditions, causes, or consequences relating to a problem or a “little picture” of significant particulars.
Strategy
To know your position in relation to others. To consider your position ethically and politically:
Make a list of the known positions on the problem.
Ask and answer the questions “What does my position have in common with others on this list?” and “How does my position differ from or conflict with others on the list?”
Note specific commonalities, differences, and conflicts of values, assumptions, or ideas between your position and other positions.
Identify potential grounds for cooperation and for competition.
Tasks for Preparing an Argument
Task #1. Outline Your Argument
If you are authoring a position paper for a professional association or for a nonprofit organization, make sure you understand its mission and how the position you are taking relates to the mission. Be clear on that relationship. Consult before deviating from the mission.
In most cases, you can use the following outline for informal arguments to construct the logic of a policy position:
Problem
Issue
Question about the issue that has at least two answers and is therefore arguable
Claim (the arguer’s assertion or answer to the question)

Support:
Justification
1. reasons (“because,” or the relevance of the assertion)
2. assumptions (“basis” or the values, beliefs, principles, and licenses that motivate the assertion as well as the authority represented in the assertion)
Elaboration
1. grounds (supporting evidence for the reasons and the assumptions)
2. limits (constraints the arguer would place on the claim)
Anticipated reactions (potential responses from diverse other positions)
1. Cooperative or supporting assertions
2. Competitive or opposing assertions
3. Altogether different assumptions
4. Challenges to reasons or to grounds
The outline does not include rebuttal. A position paper should not rebut. Rather, it should state its reasoning in a way that shows that reactions to the writer’s reasoning have been anticipated.
Task #2. Write the Position Paper
Review the general method before you write to get the rhetorical framework for your document in mind.
By consciously thinking about your position in relation to others (Strategy, above) and outlining the logic of your argument (Task #1, above), you have already begun to plan the contents of the document. That does not mean that the document’s contents should simply fill in the outline, however. Think of the outline as a skeleton. The contents are its body, clothed for a particular occasion.
The message that the document conveys will be your claim or your answer to the issue question.
When arguing in a policy context, you must be aware of your authority for making a claim. Authority in argument has two meanings, a practical meaning and a conceptual meaning. In practical politics, authority means credibility and power. Credibility derives more from a role than from a credential such as specialized expertise, although that might be relevant. (The phrase “consider the source” evokes this meaning of authority.) Any role carries its own kind of power, whether it’s the power of elected or appointed office or the power of citizenship or community membership. Conceptually, authority means persuasiveness. Authority in this sense is a function of evidence and analysis. Authoritative writing convinces by the quality of its support for claims and its care for using information reliably. (The phrase “you can rely on it” evokes this meaning of authority.) The best policy arguments are both credible and persuasive.
The document must clearly show whose position it communicates. Yours? That of an organization that you represent? You must anticipate reactions to your position. Go back to the list you made of positions other than your own (see Strategy, above). To each position on the list, add the reaction you might accordingly expect, and then rank the reactions in order of importance to you. Anticipate responses, but do not rebut them in the position paper (unless you are directed to do so). Keep the focus on your position.
Condense greatly, for now. You will likely have later opportunity to elaborate. However, keep this in mind: Ignoring information your readers may ultimately decide (under the influence of other arguments) is important will cost you credibility. Put detailed evidence in an appendix. Charts, tables, other graphics, or extended textual materials should normally be appended. However, the choice to append important details should rest on knowing the circumstances in which the position paper will be read and used. Writers especially should know whether all readers will see the entire document, including appendices. Use a standard citation style for identifying sources. Modern Language Association (MLA) style or American Psychological Association (APA) style might be sufficient.
If you are authoring a position paper that speaks for a group or organization, plan to allow adequate time for consultation. Are you the sole author, or do you have collaborators? Are you ghostwriting for someone else? Plan also to allow for review and revision, possibly multiple reviews calling for multiple revisions. Who will review drafts? Who will make revisions?
Remember to check the final draft against expected standards (checklists) and revise further, if needed, before releasing.

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In the 33 states where couples may petition to adopt but may not marry, the state is in effect declaring that LGBT people can form a family just like heterosexual couples, but cannot enjoy the same right to marry as heterosexual couples. This disparity is irrational. Although the children adopted by LGBT persons may have all the advantages of a loving home where the parents can support them economically and nurture them appropriately, they cannot provide them with the social advantage of married parents.
There is no evidence from social science research that children adopted by samesex couples suffer any harm in their development, and a great deal of evidence that they do not differ significantly from children reared in heterosexual marriages (Wald 2006;
Brief of Amici Curiae American Psychological Ass’n et al. in Hernandez v. Robles, [New
York 2006], p.3 [hereafter APA Brief]). The major difference for parenting outcomes is between single parents and couples, because couples of whatever orientation usually have higher incomes and between them they have more available time for children than single parents (Wald 2006, p. 403).
If LGBT people in most states are regarded as “good enough” to raise children as adoptive or foster parents, why aren’t they “good enough” for marriage? Emotion, not reason, dictates this disparity. As Wald points out, “Policymakers are more likely to look at public attitudes than social science” (p.434), no matter how illogical. Public attitudes are too often based on the gut feelings and unexamined assumptions about homosexuality that we discuss in the following section.

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