Same sex marriage bans are a violation of civil rights. While the federal government does not license marriages, it does sanction state licensed marriages, and uses marital status as a determining factor in eligibility of federal programs. Homosexuals are prohibited from equal protection under law, equal opportunity to exercise the privileges of citizenship, and to otherwise participate fully in national life, because of their sexual orientation and/or gender identity. Civil rights are expected to be equal to all, regardless of race, religion, sex, or other characteristics unrelated to the worth of the individual. Denying homosexuals the right to marry is discriminatory, unethical and unconstitutional.

In 1978, the United States Supreme Court declared marriage to be “of fundamental importance to all individuals” in Zablocki v. Redhail. The court described marriage as “one of the ‘basic civil rights of man’” and “the most important relation in life.” The court also noted that “the right to marry is part of the fundamental ‘right to privacy’” in the U.S. Constitution. (Murphy, 2000)

Discrimination

Discrimination is the treatment of a group of people differently, based on prejudices about that group of people. Prejudices are judgments made about another person or group of people based on often fictional stereotypes and differences between the person making the judgment and the person being judged. These prejudices do not always involve a conscious thought process, but sometimes are a born out of a lack of desire to fight those stereotypes and prejudices. The most common form of discrimination is based on the differences between people, and self-righteous feelings of superiority by the discriminating people. Societal norms and values are determined by the dominating group holding the tradition of power, which in the U.S consists of the white, heterosexual, Protestant, male European descendants who first “settled” North America.

The Arguments

Arguments against same-sex marriage include, but are not limited to, religious values, societal norms, marriage as a means of procreation, and idealism of the nuclear family. Most, if not all, of the arguments made against same-sex marriage are based on discrimination.

Those using the argument that marriage is a religious institution that has benefits protected by the government, base their argument on their religious beliefs being superior and the only religion worth considering, which is why their Christian values are the dominant values of our society. There are two problems with this argument. One is that it holds little merit in a country that grants religious freedom and freedom from religion as a right to its citizens. The other is that Christianity mandates that marriage must be between a man and a woman. This issue has been an irrelevant source of much contention, with each side of the same sex marriage debate spinning the interpretive context of the Bible to fit their argument.

Justice Zarella makes a statement opposing same sex marriage on the basis that “marriage exists to ‘privilege and regulate procreative conduct’” (Schweber, 2008). He continues that since same sex couples can not engage in procreative conduct, they should not be allowed to marry. He uses the dominating view of the inability of same sex couples to procreate as a defense of his bigotry. As Schweber points out, it is not even the actual procreation, the bringing to life another human being, that Zarella refers to; it is the sexual act that could result in procreation that he refers to. Since the “normal” course of procreation is sexual intercourse between a man and a woman, this qualifies as dominance discrimination.

Many traditionalist Americans believe the ideal nuclear family consists of a mother, a father, and their biological children; therefore, homosexuals are not the optimal parents and can not provide an appropriate environment for children to have a ‘normal’ childhood. These opponents of same sex marriage are basing their beliefs on the dominant societal norms, rather than on any research or experiences. A simple neighborhood survey or internet search would at the very least suggest that homosexuals can make just as good parents as heterosexuals, and in some cases better parents. Too often children are victims of abuse by their opposite-sex parents, or as Schweber indicates, unwanted or neglected. Same-sex couples that go through unconventional methods to have children are making a conscious choice based on their desire to be parents, and in the case of adoption, must allow their personal lives and habits to be scrutinized to ensure their fitness as potential parents.

Another example of dominance discrimination is that allowing homosexuals to marry condones homosexual behavior, and homosexual behavior is unnatural. This argument displays “a considerable ignorance of behavior of the animal kingdom” (Bidstrup, n.d.). Because heterosexuals, who dominate society, do not find homosexual behavior natural to themselves, they assume and present that it isn’t natural at all. As is common with dominance discrimination, this may not be a conscious thought process, but more of a feeling.

Federal Level Action

The Defense of Marriage Act (DOMA), signed into law in 1996 by President Clinton, allowed states to decide whether or not they would recognize same-sex marriages licensed and performed in other states, and defined marriage as between a man and a woman for federal purposes (Manning, 2004). The full faith and credit clause of the Constitution says “all states must honor the public acts of any other state, including marriage licenses” (Ginsberg, 2007). Based on this Article IV, Section 1 of the Constitution of the United States of America, constitutionality of the Defense of Marriage Act is being challenged by Lesbian, Gay, Bisexual and Transgender (LGBT) advocacy groups.

Gay and Lesbian Advocates and Defenders (GLAD) has sought a lawsuit to challenge the federal government’s denial of marriage related protections and benefits to legally married same-sex couples from Massachusetts, stating that DOMA, specifically Section 3, “creates a system of first and second class marriages” in which heterosexual couples receive federal protections and benefits, while homosexual couples receive none, even though the marriages are legal in their state (GLAD, n.d.). The Human Rights Campaign “promotes legislation that advances civil rights, supports fair-minded candidates for public office, and educates the public about the importance of rejecting discrimination” (Solmonese, 2008). Lambda Legal is a resource for legal consultation, litigation, education, and general advocacy for the LGBT community. State specific advocacy groups, such as Fair Wisconsin, “educate the public about the consequences of anti-LGBT discrimination and foster civic engagement around issues of importance to LGBT equality” (Fair, n.d.).

State Level Action

The right to marry the adult of one’s choice has also been widely debated across the States, with varying results.

Courts, legislatures and voters have chosen in some states to redefine marriage to be more specific and include only a man and a woman. On November 7, 2006, 59% of Wisconsin voters approved to amend the Wisconsin Constitution to state that “only a marriage between one man and one woman shall be valid or recognized as a marriage in this state. A legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized in this state” (Wisconsin, 2008). As of early 2008, 26 states have enacted constitutional amendments outlawing marriage of homosexual couples. Of those, 17 also prohibit civil unions and other potentially legal recognition.

Some states have attempted to differentiate between the traditional marriage between a man and a woman from same-sex marriage by using terms such as civil unions and domestic partnerships. Vermont was the first state to allow same-sex civil unions, in 2000, which provided homosexual couples in a civil union all of the same state benefits that are afforded to married couples (Banville, 2004). Massachusetts was the first state to allow same-sex marriage, in 2004. In 2008, Connecticut and California passed legislation allowing same-sex couples the ability to marry, however, later that year California voters reversed the decision (Robinson, 2009). In April 2009, Vermont’s legislature legalized marriage for homosexual couples, as did Iowa’s State Supreme Court. Oregon has a statewide domestic partner registry that is similar to civil unions, which offers the rights and responsibilities of marriage under state law. New Jersey, New Hampshire and a couple of other states offer civil unions. Such recognition serves to grant some state guaranteed rights to same-sex couples, including parental rights, medical power of attorney, tax exemptions, and insurance qualifications and benefits. However, same-sex couples in civil unions or domestic partnerships do not receive federal benefits granted to traditional marriages between a man and a woman, because of DOMA.

The use of the terms civil union and domestic partnership has done little to appease groups fighting against equal rights for same-sex couples. In Wisconsin, the 2010-2011 State Budget for Wisconsin creates a statewide, same sex domestic partner registry, and extends some benefits that would traditionally be exclusive for married couples to registered same sex couples (Legislative, 2009). This prompted Wisconsin Family Action, a division of Wisconsin Family Council whose “mission is to forward Judeo-Christian principles and values in Wisconsin” (WFC, 2007), to ask the Wisconsin Supreme Court to declare domestic partnership registries unconstitutional. Another case, McConkey v. VanHollen, seeks to declare the 2006 amendment unconstitutional, which would make the WFC point moot (Foley, 2009).

Wisconsin’s Legislators

Congresswoman Tammy Baldwin (D-WI) has worked tirelessly for the LGBT community, and in this session has sponsored bills H.R. 2517, to provide certain benefits to domestic partners of Federal employees; and H.R. 3001, to address the health disparities experienced by LGBT Americans, and to eliminate barriers in accessing quality health care (THOMAS, n.d.). She, along with Congressman Barney Frank (D-MA), co-chair the LGBT Equality Caucus. The LGBT Equality Caucus has sponsored thirteen bills in this 111th congressional session.

Representative Gwen Moore (D-WI) champions for racial minorities, and legislation to advance the civil rights of women, but does not focus on LGBT rights specifically. She did co-sponsor the Every Child Needs a Family Act, H.R. 3827 and H.R. 3090 which addresses health care disparities among minorities, including the LGBT population. Moore earns a 95% from the Human Rights Campaign. Representative Ron Kind (D-WI) votes in favor of LGBT quite regularly, earning a 85% from the HRC. Congressmen Dave Obey (D-WI) and Steve Kagen (D-WI) both received 70% by the HRC for their voting records in the 110th session (HRC, 2009).

Representative Paul Ryan (R-WI) received a 0% for the 108th and 109th congressional sessions and a 10% for the 110th congressional session from the Human Rights Campaign. Congressmen Jim Sensenbrenner (R-WI) and Thomas Petri (R-WI) fair even worse, with 0% for the past three sessions. (HRC, 2009).

Senator Russ Feingold (D-WI) is a proponent of civil rights for all, regardless of sexual orientation, and has consistently supported the Employment Non-Discrimination Act. He was, however, the only Democratic Senator to vote against H.R. 2647, the National Defense Authorization Act for fiscal year 2010, which included the Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act. His press release that followed the H.R. 2647 vote indicated that he would have voted for the Hate Crimes Prevention Act if it had not been part of the defense spending bill. He received a 90% from the HRC (HRC, 2009).

Herb Kohl (D-WI) voted for H.R. 2647, however has never sponsored any legislation directly related to the advancement of rights for the LGBT population. He votes largely along party lines, including on matters of civil rights and earns a 80% from the HRC (HRC, 2009).

Conclusion

Human and civil rights advocacy groups, including LGBT rights groups, continue to educate the public and support the campaigns of fair-minded candidates. Progress has been made, but the fight is far from over. If ever the United States government treats all people the same, the fight will continue to make all Americans treat all people the same. The fight for ‘color-blindness’ and ‘gender-blindness’ has been waged for hundreds of years, and the fight to be recognized and treated as equal people regardless of sexual orientation will no doubt travel the same warpath. If prejudice and discrimination prevail, the United States continues to fail to be a true democracy.

References:

Banville, Lee. (2004). The Battle over Same-Sex Marriage: Vermont’s Civil Unions. PBS.org. Retrieved October 31, 2009 from http://www.pbs.org/newshour/bb/law/gay_marriage/vermont.html.

Bidstrup, Scott. “Gay Marriage, The Arguments And The Motives.” Retrieved June 29, 2009 from http://www.bidstrup.com/marriage.htm.

Fair Wisconsin. (n.d.). About Fair Wisconsin. Retrieved October 29, 2009 from http://www.fairwisconsin.com/about/index.html.

Foley, Ryan. (2009). Fair Wisconsin seeks to join court fight over domestic partnership law. Associated Press, The Capital Times. Retrieved October 30, 2009 from http://host.madison.com/ct/news/local/govt_and_politics/article_403cfe94-a786-11de-8c2a-001cc4c03286.html.

Gay and Lesbian Advocates and Defenders (GLAD). (n.d.). GLAD challenges DOMA Section 3. Retrieved October 30, 2009 from http://www.glad.org/doma/lawsuit/.

Ginsberg, B., Lowi, T., & Weir, M. (2007). We The People: An introduction to American politics. 6th edition. W.W. Norton & Company, New York.

HRC. (2009). Human Rights Campaign. Your Elected Officials. Retrieved October 31, 2009 from http://www.hrc.org/laws_and_elections/your_elected_officials.asp?state=WI&x=9&y=8&view=myofficials&zip=.

Legislative Fiscal Bureau, Joint Committee on Finance Paper #324. “Domestic Partner Retirement and Group Insurance Benefit (EFT).” May 19, 2009.

Manning, Jason. (2004). The Battle over Same-Sex Marriage: The Defense of Marriage Act. PBS.org. Retrieved October 31, 2009 from http://www.pbs.org/newshour/bb/law/gay_marriage/act.html.

Murphy, Jenny. “Should Gay Couples Be Allowed to Marry?” Human Rights Campaign, San Francisco Chronicle, February 3, 2000. Retrieved July 17, 2009 from http://www.speakout.com/activism/issue_briefs/1138b-1.html.

Robinson, B.A. (2009). Ontario Consultants on Religious Tolerance. Same-sex marriage (SSM), civil unions, & domestic partnerships. Retrieved October 30, 2009 from http://www.religioustolerance.org/hom_marr_menu.htm.

Schweber, Howard. “Same Sex Marriage: The Worst Argument in the World.” The Huffington Post, October 20, 2008. Retrieved July 17, 2009 from http://www.huffingtonpost.com/howard-schweber/same-sex-marriage-the-wor_b_136260.html.

Solmonese, Joe., Human Rights Campaign. (2008). What’s Next for Gay Americans?http://www.pbs.org/now/shows/448/gay-rights.html. Retrieved October 29, 2009 from

THOMAS. (n.d.). The Library of Congress searchable database. Retrieved October 31, 2009 from http://thomas.loc.gov/cgi-bin/bdquery/R?d111:FLD003:@1(Rep+baldwin+tammy).

WFC, Wisconsin Family Council. (2007). About WFC. Retrieved October 31, 2009 from http://wifamilycouncil.org/about.html.

Wisconsin Constitution. (2008). Article XIII, Section 13. Marriage [as created Nov 2006]. Retrieved October 30, 2009 from http://www.legis.state.wi.us/rsb/unannotated_wisconst.pdf.