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L. Neil Smith's
Number 601, January 1, 2011

"Okay, here's THE PLAN"

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The Case for Gay Marriage
by R. Smith

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Attribute to The Libertarian Enterprise

In the eyes of the law, Elinor Barron has been living with a stranger for 24 years.

According to MSNBC, she married Janet Chin in 2008; they live in the San Francisco Bay Area and are a same-sex couple who married before California's Proposition 8 passed. They have been a committed couple for 24 years, but the law treats them as no more than roommates because of the Defense of Marriage Act signed into law in 1996 by former President Bill Clinton.

The text of the Act, obtained from the Library of Congress, reads: "no State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship."

This means that, regardless of the legality of same-sex marriage in a single state, such as Massachusetts, marriages performed in that state need not be recognized by any other state or territory. It also means that the marriages performed in any such state (or other country) are not recognized by the federal government of the United States.

This is a problem for a number of reasons; let's take a look at the few of the devices used against same-sex couples by the opponents of equal marriage rights.

The argument heard most frequently against same-sex marriage is a very simple one: that, according to many religious institutions, true marriage is only between one man and one woman, and attempts to redefine marriage violate tradition because of that definition.

The biggest issue with this argument, other than its circularity, is that this definition comes from religious sources. The text of the First Amendment to the Constitution of the United States of America states: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." This means that no laws will be made based upon church doctrine, but that individual and group worship will not be interfered with by the government. To make a law based only upon religious doctrine clearly respects an establishment of religion and therefore violates the First Amendment.

There is a tendency to pick on only the religious arguments when arguing for same-sex marriage. Let's look at a more secular argument.

This commonly-presented argument is that same-sex couples do not have or raise children, and therefore do not require the child-rearing benefits afforded by marriage. This argument is also enveloped by the argument that marriage is only about children; there is no such law on the books in the United States (and there certainly should not be!), and this argument can, in any case, be directly countered by the fact that elderly, infertile, and voluntarily childless opposite-sex couples are allowed to be married.

Regardless of the beliefs to the contrary, according to the Los Angeles Times, as of the 2000 census, fully one-third of Californian same-sex couples were raising children.

Abbie Goldberg, an assistant professor of psychology at Clark University, compares same- and opposite-sex parentage in her book Lesbian and Gay Parents and Their Children: Research on the Family Life Cycle.

Goldberg compiled data from the 1970s to present for analysis and conducted phone interviews with adoptive parents in 30 states with over 100 couples of varying orientations. Her findings indicated that same- and opposite-sex couples who are raising children have more in common than not.

As for the argument that homosexual parents raise homosexual children, studies like Goldberg's have found that this is false; according to her research, children raised by a same-sex couple are no more likely to identify as homosexual than those raised by an opposite-sex couple.

These arguments are very subjective and somewhat free-form; they are merely loudly proclaimed by those who ascribe to them. However, a much more insidious argument has been made recently.

While on the campaign trail, President Barack Obama referred to the Defense of Marriage Act as "abhorrent"; he won the votes of much of the gay, lesbian, and bisexual community with the promise to repeal it.

However, in June 2009, only eight months after he was elected, President Obama went back on his word, authorizing a decision in direct contradiction to his previous assessment of the Act.

The Motion to Dismiss Marriage Case brief claims that the Defense of Marriage Act does not violate the First Amendment because it does not infringe upon the ability of the plaintiffs to express themselves.

In other words, the brief misinterprets the crux of the issue, side-stepping the passage which states that congress may not make laws based on religious doctrine and citing instead the better-known passage which guarantees freedom of speech.

Secondly, the brief claims that the Defense of Marriage Act is non-discriminatory, stating that unmarried opposite-sex couples do not receive the same benefits as married couples. This does not follow, because unmarried opposite-sex couples are allowed by law to marry and begin receiving those federal benefits.

So what are the benefits denied unmarried couples? The Human Rights Campaign reports that there are over 1,000 of them. Let's take a look at a few.

As same-sex marriage is unrecognized by the federal government, even in states where such marriages are legal, one cannot petition for immigration on behalf of one's same-sex spouse.

When a member of an opposite-sex married couple dies, his or her property is bequeathed to his or her spouse in the absence of a will; this arrangement is not protected in the case of an unmarried couple, and the property will be passed on to the other family of the deceased. (Some states have implemented a policy to aid same-sex couples, among other people, in this plight: the Designated Beneficiary Act in Colorado, for example, allows a person to designate any other person as their beneficiary in case of death or serious illness. This along with a power of attorney can give some semblance of medical security.)

Under the Family and Medical Leave Act, an individual can take up to twelve weeks of leave from work to care for a seriously-ill spouse, child, or parent; this Act does not provide for the care of one's partner or partner's parents. (Some individual employers do provide benefits to unmarried couples or domestic partners, but it's not guaranteed.)

Worst of all, if a partner is deemed incompetent to make his or her own medical decisions and the couple has not drawn up a power of attorney, the decisions for the sick partner's care will fall exclusively to the biological family, regardless of their relationship with the family member.

In most cases, the healthy partner will not be allowed to visit the sick partner's hospital room, even if the couple reside in a state in which same-sex marriage is legal or recognized, because it is not federally recognized; it is deemed a violation of privacy laws for anyone other than the family to be admitted.

To reiterate, these benefits are denied any unmarried couple; however, with the purchase of a marriage license, any man and woman can begin to receive them.

A sound constitutional policy that could be enacted to solve the problems encountered by same-sex couples is to repeal the Defense of Marriage Act, to define all marriages as equal, and to allow the church leaders to decide which marriages will be recognized by their churches.

The church is not legally obliged to recognize marriages that are not performed by a minister of their faith.

This leads to the argument that it would be more acceptable to call same-sex marriages something different, such as civil unions or domestic partnerships. In theory, the difference in name should matter little; however, as stated in the famous 1951 legal case, Brown v. Board of Education, "separate but equal is inherently unequal."

In American history, segregation of any kind has been legally unkind to those segregated, using their marginalized status to deny them the benefits of whatever right is at stake by brute force (otherwise known as majority rule).

This policy is in accordance with the Constitution of the United States of America; there is no infringement made on the rights of those who disagree with the principle of same-sex marriage because it does not affect them.

The monetary costs of implementing this policy would be very low; in fact, given the fact that both partners are likely to work full-time, there is some evidence to suggest that many same-sex couples would pay more in income tax, thereby bringing more money to the state. (In a libertarian society, this point would be moot, as income tax is inherently unlibertarian.)

Marriage equality is more important than many Americans think, and no constitutionally-sound argument has been made to date against the legalization of same-sex marriage.

It's an important issue, just as women's suffrage and segregation based on race are important issues.

I hope that I've given you some food for thought on this problem that affects a portion of the American population. To legalize same-sex marriage is only a step toward a truly libertarian society, but if the libertarian movement can get behind this cause, it will in turn bring more people to the libertarian cause.


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