Same Sex Marriage: a Human Right?

In today’s society there are many controversial issues that people must take a stance on; one of the most controversial is same-sex marriage. Same-sex marriage is a marriage between two people of the same gender, and many people believe it can have a negative effect on children. However, many people believe it should be allowed because it is based on the same basic principle of hetero-sexual marriage: that two individuals desire to formally live together and have legal rights and privileges, regardless of sexual orientation. While there are people who oppose the legalization of same-sex marriage due to religious beliefs, the possible adverse effects on children, and personal morality, there are many people who believe it should be legalized because every person is created equal and should have the right to the same legal benefits and privileges as well as the opportunity to marry whomever they choose.
Benefits and Privileges The desire for same-sex marriage is based on the same principle as hetero-sexual marriage; the desire to live together, to start a family, and to be recognized as a couple. It is human nature to want to be loved and to love someone else; that desire does not change with the gender of the individual someone falls in love with. Regardless of sexual orientation, people should not face discrimination from others, including the government. In the Marriage Resolution, by the Marriage Project of Lambda Legal Defense and Education Fund, it is stated, "Because marriage is a basic human right and an individual personal choice, RESOLVED, the State should not interfere with same-gender couples who choose to marry and share fully and equally in the rights, responsibilities, and commitment of civil marriage." Since every person has the same desire to find someone to love and marry, same-sex couples should be allowed the same rights and privileges as hetero-sexual couples. There are over 1,400 benefits and privileges given to hetero-sexual couples by state and federal governments. Same-sex couples should be given these same privileges. These benefits include medical insurance, life insurance, and tax credits and exemptions, among others. Same-sex couples that are not recognized as a couple do not receive the same consideration that hetero-sexual couples receive. For example, Kate Flemming and Charlene Strong had been in a relationship for over 10 years and had held a commitment ceremony to honor their love for each other. During a tragic moment in which the basement of their home flooded, Kate was trapped and she remained trapped until emergency medical personnel were able to remove her limp body from the home and begin cardiopulmonary resuscitation. When Charlene arrived at the hospital to be with Kate, she was informed that because she was not the official next of kin, she would have to gain permission from Kate’s next of kin to see her. Kate and Charlene had discussed Kate’s desire to not be kept alive through artificial means, but the staff at the hospital doubted the validity of Charlene’s right to make those decisions. Fortunately, for Kate and Charlene, their families were supportive of their relationship and allowed Charlene to make the decisions regarding the remainder of Kate’s life. (Labella & Singh, 2008).
Constitutional Law There are laws that protect against age, race, and gender discrimination, but there are few laws on the books to protect same-sex couples from discrimination based on sexual orientation. For example, in the United States military, there is a policy of “Don’t ask…Don’t tell”; meaning a person may be a member of the military and be gay, but only for as long as no one knows. Soldiers who are homosexual or bi-sexual must conceal their sexual orientation if they wish to remain in the military. That policy could be equated to the racial discrimination African-Americans faced in the past. While constitutional law allows for hetero-sexual couples to join in marriage, the constitution does not allow the same for same-sex couples. There are a couple of states that allow civil unions or domestic partnerships between same-sex couples, but those same-sex couples are still not eligible for the 1,000 federal benefits that are available to hetero-sexual couples. Figure 1.1 from the National Conference of State Legislatures shows the states where civil unions or domestic partnerships are legal.
Figure 1.1

States with Statutes Defining Marriage Between One Man and One Woman States with Constitutional Language Defining Marriage States Without Law Prohibiting Same-Sex Marriage States with a DOMA Constitutional Amendment On The Ballot in 2008
Alabama
Alaska
Arizona
Arkansas
Colorado
Connecticut
Delaware
Florida
Georgia
Hawaii
Idaho
Illinois
Indiana
Iowa
Kansas
Kentucky
Louisiana
Maine
Maryland*
Michigan
Minnesota
Mississippi
Missouri
Montana
New Hampshire
North Carolina
North Dakota
Ohio
Oklahoma
Pennsylvania
South Carolina
South Dakota
Tennessee
Texas
Utah
Vermont
Virginia
Washington
West Virginia
Wisconsin
Wyoming
**In January 2006, a state judge found the Maryland statute unconstitutional but it remains in effect pending appeal. Alabama
Alaska
Arkansas
Colorado
Georgia
Hawaii*
Idaho
Kansas
Kentucky
Louisiana
Michigan
Mississippi
Missouri
Montana
Nebraska
Nevada
North Dakota
Ohio
Oklahoma
Oregon
South Carolina
South Dakota
Tennessee
Texas
Utah
Virginia
Wisconsin
**Hawaii 's constitution was amended in 1998 to read "The Legislature shall have the power to reserve marriage to opposite-sex couples." The Hawaii legislature subsequently passed a law prohibiting marriage for same-sex couples. Massachusetts
New Jersey
New Mexico
New York
Rhode Island Florida
(California: Initiative is still being certified)
(Arizona: Legislative referendum has passed the House of Representatives and is awaiting a vote in the Senate.)
TOTALS: 41 27 5 1

In 1993, the Massachusetts Supreme Judicial Court ruled that it was unconstitutional to bar same-sex marriage. Even after this ruling the State Senate asked the court to consider civil unions as a parallel institution to civil marriage. The court ruled that it was not rational to draw that line between same-sex and hetero-sexual couples. After the final ruling of the court, the State of Massachusetts began issuing marriage licenses to same-sex couples. (National Conference of State Legislatures, 2008). While there are states, such as Massachusetts, that do not have laws banning same-sex marriage, same-sex couples are only given state level benefits. The ability of same-sex couples to legally join in marriage in these states does not affect social security benefits or federal employee pensions. Because the federal government defines marriage as a union between one man and one woman, same-sex couples residing in states where same-sex marriage is legalized are not eligible to receive social security benefits or federal employee pensions. (Haltzell & Purcell, 2008).
History of Same Sex Marriage Same-sex marriage has been an issue for many years, although it has only been brought to the forefront in recent years. In 1978, the city of Berkeley, California, passed a sexual orientation non-discrimination ordinance. The ordinance stated that the city promised to provide equal treatment regardless of sexual orientation. While the city did pass this ordinance, it was found that it did not apply to same-sex marriage and benefits. When Tom Brougham went to work for the City of Berkeley, he found that he could not sign up his life partner, Barry Warren, for health and dental benefits because they were only available to the spouses of city employees. Berkeley had vowed to not discriminate because of sexual orientation; however, because marriage was required to gain those benefits, same-sex couples were not eligible. Brougham proposed that Berkeley could resolve this issue by creating a new category called “domestic partnership” that upheld the same degree of stability and strictness as marriage. After several years of fighting the city’s leaders and the healthcare industry, the City of Berkeley eventually started offering dental and medical benefits, leave benefits, and pension benefits for same-sex couples, and once that happened, several other cities joined the charge towards equality for all, regardless of sexual orientation.
Same-Sex Marriage and Children Just as there is the same desire to formally live together, receive legal benefits, and be recognized as a couple; there is also the desire to have children and be recognized as the children’s parents. Most states do not recognize same-sex marriage and many do not permit same-sex second parent adoption. Because of this, it is difficult for non-biological parents in same-sex relationships to establish parental rights, despite the fact that they actively participate in the decisions to start a family, and love, nurture, and care for the children born into the relationship. In most cases, same-sex couples use a surrogate or in-vitro fertilization to have a child of their own; however, in most states, only one of the partners is recognized as the legal parent of the child. For example, two women in a committed relationship chose to use artificial means to have a child. After the child was born, the biological mother’s name was put on the birth certificate and her partner’s name was placed on the birth certificate as the father. They spent the next eight years living in the same household and raising the child together; however, after eight years, they separated. The “mother” took the “father” to court to fight for full custody and parental rights, claiming that the “father” had no biological ties to the child and therefore, had no parental rights. The courts sided with the “mother” because they were a same-sex couple who could not be legally married, and therefore, were not eligible for the benefits or rights provided to hetero-sexual couples. (Williams, 2005). Who should retain custody when a same-sex couple separates? Which parent has more rights? What are the determining factors of parentage? These are all questions that same-sex couples must think about before starting a family, because if a same-sex couple separates they do not receive the same considerations as a hetero-sexual couple that separates. Why should same-sex couples have to ask these questions before starting a family? Many people believe that it is a violation of human rights for a same-sex parent to lose a child they have raised from birth just because they are not biologically linked to that child. Rachel Epstein stated, “We are parenting in a social climate in which more than half the people around us believe we should not be allowed to be parents.” There are many people who believe that children, who live in a household with same-sex parents, will grow up to be homosexual as well. They also believe that children who grow up with same-sex parents will be morally inept, religiously bankrupt, and a negative force in society. Children of same-sex parents face ridicule, hatred, and misunderstanding everyday from their peers and others in society. Many of these children are active in groups that try to teach acceptance of same-sex couples, and try to educate their peers on the facts of same-sex relationships. Consider this, a person meets someone that they fall head over heels in love with, that someone asks them to spend the rest of their life with them, that someone tells them that they want to have children with them, and then, they cannot get married, they are not eligible for any benefits or privileges, and only one of them will be considered to be the “parent” of their child; all of this, just because they are the same-sex. In a nation that claims equality for all, why is there such a huge difference in treatment of same-sex couples and hetero-sexual couples? Many people oppose the legalization of same-sex marriage due to religious beliefs, the possible adverse effects on children, and personal morality; however, there are also many people who believe it should be legalized because every person is created equal, and every person, regardless of sexual orientation, should have the same rights and privileges, as well as the opportunity to marry whomever they choose.

References
Epstein, R. (2005). Queer Parenting in the New Millennium: Resisting Normal. Canadian Woman Studies, 24(2/3), 6-14. Retrieved September 27, 2008, from GenderWatch (GW) Database. (Document ID: 880796221).
Haltzel, L., & Purcell, P. (2008). The Effect of State-Legalized Same-Sex Marriage on Social Security Benefits and Pensions. Journal of Pension Planning & Compliance, 34(2), 42-47. Retrieved September 22, 2008, from Business Source Complete database.
Hawkins, J (2007). My Two Dads: Challenging Gender Stereotypes in Applying California’s Recent Supreme Court Cases to Gay Couples. Family Law Quarterly, 41(3), 623-638. Retrieved September 27, 2008, from ABI/INFORM Global database. (Document ID: 1430206721).
Labella, A. & Singh, D. (June 2008). Turning loss into legislation. American Journal of Public Health, 98(6), 971-973. Retrieved September 22, 2008, from CINAHL Plus with Full Text Database.
Lambda Legal. (2008). The marriage resolution. Retrieved September 27, 2008, from http://www.lambdalegal.org/take-action/tool-kits/people-of-faith-speak-out/marriage- resolution.html.

National Conference of State Legislatures. (2008). Same sex marriage, civil unions, and domestic partnerships. Retrieved September 27, 2008, from http://www.ncsl.org/programs/cyf/samesex.htm.
Traiman, L., (2008). A Brief History of Domestic Partnerships. The Gay & Lesbian Review Worldwide, 15(4), 23-24. Retrieved September 27, 2008, from GenderWatch (GW) database. (Document ID: 1527201091).
Williams, L., (2005). The Unheard Victims of the Refusal to Legalize Same-Sex Marriage: The Reluctance to Recognize Same-Sex Partners as Parents Instead of Strangers. The Journal Of Gender, Race, and Justice, 9(2), 419-442. Retrieved September 27, 2008, from GenderWatch (GW) database. (Document ID: 1074463501).

References: Epstein, R. (2005). Queer Parenting in the New Millennium: Resisting Normal. Canadian Woman Studies, 24(2/3), 6-14 Database. (Document ID: 880796221). Haltzel, L., & Purcell, P. (2008). The Effect of State-Legalized Same-Sex Marriage on Social Security Benefits and Pensions Retrieved September 22, 2008, from Business Source Complete database. Hawkins, J (2007). My Two Dads: Challenging Gender Stereotypes in Applying California’s Recent Supreme Court Cases to Gay Couples Retrieved September 27, 2008, from ABI/INFORM Global database. (Document ID: 1430206721). Labella, A. & Singh, D. (June 2008). Turning loss into legislation. American Journal of Public Health, 98(6), 971-973 National Conference of State Legislatures. (2008). Same sex marriage, civil unions, and domestic partnerships Traiman, L., (2008). A Brief History of Domestic Partnerships. The Gay & Lesbian Review Worldwide, 15(4), 23-24 (Document ID: 1527201091). Williams, L., (2005). The Unheard Victims of the Refusal to Legalize Same-Sex Marriage: The Reluctance to Recognize Same-Sex Partners as Parents Instead of Strangers Of Gender, Race, and Justice, 9(2), 419-442. Retrieved September 27, 2008, from GenderWatch (GW) database