Though critics of same- sex marriage may say that it contributes to the loss of the sanctity of marriage, the examples provided below show that same-sex couples would not compound marital problems that already exist. There will always be a social minority and they will always be the ones to face adversity within a social scheme until they are granted equal rights and another social minority is found. In effect, the ban and limitations on same-sex marriage and marriage for the rest of the LGBT community is in place because they are the sexual minority of today.
In regards to marriage, there have always been factors limiting the ‘sexual minority’ of the time. These limiting factors, i.e. gay and/or interracial marriages, either have certain restrictions as to where a marriage or legal union is deemed to be legal or illegal or it restricts and bans marriages based on who can marry whom. In earlier times, marriage was forbidden between two people of different races. A series of court cases helped maintain this ban on interracial marriages. The rulings were typically in support of illegitimating previous marriages by the court. In Kirby v. Kirby, Joe Kirby wants an annulment of his previous marriage because he is Caucasian and his wife was a person of mixed blood because she had Indian blood. Joe Kirby wound up winning his case. This was an interesting ruling because when trying to determine the different races of the different parties involved, Joe Kirby’s mother was interviewed and the entire interview was done in Spanish. Joe claimed that he was of Spanish descent, thus making him Caucasian. So his marriage with Mrs. Kirby was completely illegitimate under Arizona’s anti-miscegenation state. They argued their case in Arizona Supreme Court in 1921. In Loving v. Virginia in 1967 the Supreme Court ruled that anti-miscegenation is unconstitutional and marriage is a fundamental right. Virginia was trying to ‘preserve’ a race and maintain ‘White Supremacy’ and eliminate the corruption of blood. The Supreme Court maintained due Process and they preserved a citizen’s right to the14th Amendment, guaranteeing life, liberty and the pursuit of happiness. In the following two cases, Perez v. Lippold in 1948 and the Estate of Monks in 1938 there were arguments of race being biological. In Perez v. Lippold, the court decided in a 4-3 decision that race was and is not biological. However, in re Estate of Monks, the Arizona court determined that race was biological and Marie Antoinette lost because she is determined to be 1/8 black. Our nation has embraced the heterogeneity of the interracial marriages, and has turned their attention to another social minority. (Pascoe).
Now that interracial marriages are allowed and marriage is not a question of maintaining ‘White Supremacy’ or a preserved race, there is a new minority based on sexual orientation. Scholar Chris He notes, "Current bans on same sex marriage are reminiscent of anti-miscegenation laws as both test the fundamental right of the Constitution. The minority groups in both cases are marginalized as they are denied the right to choose their significant other, and in the current same sex instances civil unions and domestic partnerships are used to mitigate this inequality." Same-sex couples and those who find themselves to be hybrids like transgendered and transsexual people, as with the other members of the LGBT community are the new social minority in regards to marriage. In the United States, the only jurisdictions that currently allow same-sex marriage are Massachusetts, Connecticut, the District of Colombia, New Hampshire, Vermont and Iowa. One of the problems that we face as a nation is that each state has their own Constitution as well as the United States’ Constitution. As citizens of the United States, we have dual citizenship. We have national citizenship as well as citizenship of the state in which you reside. Laws vary from state to state and each state is able to determine for themselves what marriage is or who is eligible for marriage. Under the 14th Amendment, a United States citizen is entitled to Life, Liberty, and the pursuit of Happiness. This raises concerns with citizenship and legitimacy of the claims and interpretations of law throughout the United States and states individually. In 1999 in Texas, Littleton v. Prange a marriage is not recognized legally because a man had a sex reassignment surgery to become a woman and the court ruled that one should not change their sex for marriage purposes. (Eskridge). The Baehr v. Lewin case in Hawaii in 1993 brings up the argument as to whether or not homosexuality is biologically fated. Other reasons against the idea of same sexed marriages are strictly religious and delve into the definition of marriage. It is commonly believed that marriage is between a man and a woman and with that comes certain aspects of coverture. Coverture is the ancient legal concept that upon marriage, a woman becomes the property of her husband and she is subsumed. It was yet another form of social classifications and putting more aspects into the social pecking orders.
Other arguments against marriage are that marriage supports procreation. This is a faulty argument for many reasons including the fact that there are many heterosexual couples that do not decide to bear children and other homosexual couples or couples of the LGBT community that would make great adoptive parents. Some do not want to allow LGBT members to adopt children because they believe that an LGBT member would ‘raise their child to be a homosexual.’ This idealism is absurd and very ignorant. Sometimes, marriage is a cover-up for irresponsible relations within a heterosexual relationship. Until recently, Bristol Palin and former-beau Levi Johnston, were going to get married because she got pregnant in an irresponsible heterosexual encounter. Marriage would have solved their problems and made the irresponsible heterosexual encounter more socially acceptable. Not only would the child not have been born a bastard, but it also portrayed a better image of their family as a whole. Marriage would absolve them of their ‘mistake’ of having irresponsible sexual encounters and would help bring back a better name for the Palin and Johnston families. This is a paradigm of the concept of irresponsible heterosexual relations resulting in marriage, though the Palin-Johnston marriage was broken off. The public heavily scrutinized this couple because it happened in the midst of the elections for presidency when Bristol’s mother, Sarah Palin was in the running.
All in all, members of the LGBT community are fighting for their rights that should be granted to them under the United States Constitution. They are legal United States citizens just as we are, and therefore should be granted the same fundamental right to marriage as the rest of the United States population. Members of the LGBT community are facing adversity and discrimination based on their sexual preferences, which is very unjust. Though it is understood that to change the United States Constitution to allow equal rights for all members to wed no matter what, is very impractical, one can only dream of a utopia where everyone was content and could express themselves freely without repercussions.
First it was with laws prohibiting interracial marriages, now there are interpretations of the law banning marriage between members of the LGBT community. As scholar, David Pino notes, "A subtle tool such as marriage turned out to be a weapon of social injustice used against these disadvantaged groups." There are always social minorities even without regard to marriage. Marriage, itself is basically a social construct because the law defines and restricts who can and cannot get married in certain jurisdictions. Law too is a social construct because law is defined by the interpretation of those who are on the Supreme Court. It is part of the checks and balances created to equally distribute the power amongst the three branches of government. The legislative branch is in charge of passing bills to become law and the executive branch has the power to veto laws and in turn the legislative branch can override them. However, it is the duty of the judiciary branch to interpret law. In today’s society, law limits the ability of a member of the LGBT community to legally wed another member of the LGBT community in the majority of the United States of America. In my opinion, it would not harm anyone if it were legalized throughout the entire United States. If homosexuality is not something that you, yourself are comfortable with, it does not affect you. You, yourself do not have to engage in any homosexual activities, and even if it were against your beliefs or religion, again, it is not you who is engaging in any homosexual activity. It is the practically the same concept when legalizing interracial marriages. It does not hurt the United States population as a whole; in fact, it makes people happier to have equal rights. Of course, our nation is not a utopia by any means, but making strides in the direction of social equality for all is a step in the right direction. The fact of the matter is that there will always be a social minority and they will always be the ones to face adversity within a social scheme until they are granted equal rights and another social minority is found. This is the biggest problem with social constructs and social pecking orders. As soon as one is absolved of being at the bottom of the social totem pole, another social group is found to take the spot of the last. It is very idealistic to wish for a world where social equality actually existed, but one by one, we can try to reach social equality for those who are the social minority of the time. Right now, being members of the LGBT community.
Works Cited
Cott, Nancy F. "Marriage Revised and Revived." Public Vows: A History of Marriage and the Nation. Cambridge: Harvard University Press, 2000. 200-227.
Eskridge, William and Nan Hunter. Gender, Law and Sexuality. New York: The Foundation Press, 1997 and 2009.
Eskridge, William. "Sexual and Gender Variation in American Public Law: From Malignant to Benign to Productive." 57 UCLA Law Review 1333. June 2010.
Eskridge, William. "The Constitutional Case: Discrimination." The Case For Same-Sex Marriage. New York: The Free Press, 1996. 153-182.
Pascoe, Peggy. "Miscegenation Law, Court Cases, and Ideologies of 'Race' in Twentieth-Century America." Journal of American History 83 (June 1996):44-69.
Images:
Mariah S. Gonzalez
