FREEDOM TO LOVE & MARRY:

Investigating the issues surrounding homosexuals and civil marriages

Amy Fibich
Challenge Seminar Hour 4 December 17, 2002

Throughout the past few decades, homosexuals have been engaging in a fight to win the right to a civil marriage. They argue that they are a suspect class that deserves equal protection under the laws. They also believe that marriage is a private act that has evolved over the years and should not be limited to heterosexual couples. Opponents of same-sex marriage assert that marriage should only be between heterosexual couples and that homosexuality is an immoral, perverse and unnatural act that should not be protected under the law. This paper asserts that if the legal issues surrounding homosexuals are examined, it will be found that a civil marriage between them should be legalized. These legal issues are the rights of homosexuals under the Equal Protection clause of the Fourteenth Amendment, the ability of government to define marriage and the Free Exercise clause of the First Amendment.

INTRODUCTION Although many discriminations still exist in present-day United States, homophobia is one of the few that is still widely accepted . Discrimination on the basis of sexual orientation has existed for centuries, and while there has been an increase in tolerance over the past few decades, homosexuals still live in a country of persecution and oppression that is, in many cases, still encouraged by law. While there have been many advances in the struggle for gay rights, including instituted affirmative action in city employment and federal grant money towards gay-related studies (Marco 6), homosexuals are still fighting to gain what Rauch terms as societys most fundamental institution (Rauch, For better or worse? 1): marriage. Yang reports that during the 1990s stable majorities [of] more than two to one have remained opposed to gay marriage (Yang 481). It is apparent that despite a higher tolerance towards homosexuality, the majority of Americans still strongly oppose same-sex marriage. This opposition from constituents could be termed as one of the reasons that the United States government has refused homosexuals access to civil marriage. This paper asserts that if the legal issues surrounding homosexuals are examined, it will be found their right to engage in civil marriages should be legalized. These legal issues are the rights of homosexuals under the Equal Protection clause of the Fourteenth Amendment and the legislating of morals in American government. EQUAL PROTECTION UNDER THE LAW The 14th Amendment to the Constitution of the United States of America contends in Section I that no state shall, deny to any person within its jurisdiction the equal protection of the laws. This clause, known as the Equal Protection clause, has been the foundation for many cases involving civil rights. In the case for same-sex marriage, the Equal Protection clause is key

in determining the constiutionality of its prohibition. Moss asserts that "a state violates the Equal Protection clause when a classification [of people] is based on impermissible criteria arbitrarily used to burden a particular group of individuals" and he continues by stating that "the state need only show some rational connection between its classifications and a legitimate government interest" (Moss 101). The prohibition of same-sex marriage denies homosexuals the right to marry and accordingly all of the other privileges that ensue this classification clearly procures a burden against homosexuals. However, it is highly important to note that it is permissible for state governments to place this burden upon homosexuals if they are able to connect it to the interests of the states. Therefore, it is necessary that homosexuals locate a manner in which to gain stricter investigation into the restriction against same-sex marriage. Marco contends that achieving suspect class status is key for homosexuals if they wish to attain the right to marriage (Marco 6). Coleman expands on this point by stating that traditional strict scrutiny continues to be applied to suspect classifications based on membership in a discrete and insular minority (Coleman 2). Because it is reasonably simple to make minute connections between group classifications and laws, it has become easy for states to sidestep Equal Protection violation indictments. To compensate for this, the Supreme Court designed a set of criteria that could be used to designate certain groups as minority or suspect. Laws made that result in the possible discrimination of these classes are exposed to significantly higher degrees of inspection. Moss describes this criteria: First, [one must look at] whether the classification is based on immutable traits or characteristics over which an individual has no control; second, whether the classification reflects historic and incorrect stereotypes with no basis in fact; third, whether the

classification represents a politically powerless minority; and fourth, whether there is a history of discrimination or unequal treatment towards the class (Moss 102). In order to determine whether or not homosexuals constitute a suspect class, each of these criteria must be examined closely. CRITERION #1 Immutable traits Over the past few decades there has been much debate over whether or not sexual orientation is a lifestyle choice or an inherited trait. Worsnop reports that studies on the brains of deceased homosexual men strongly insinuated that sexual orientation has a biological basis. Worsnop also noted that research done by J. Michael Bailey of Northwestern University on homosexual, identical twins further suggested the idea of homosexuality as a genetic trait (Worsnop 3). Brookey refers to additional findings: [Dean Hamer] analyzed the sexual concordance of all male relatives. After surveying his subjects for sexual orientation, and sampling their blood for DNA, Hamer concluded that maternally related males had a higher rate of sexual concordance than the population at large. This led Hamer to conclude that a gay gene must be located on the "X" chromosome because this is the one chromosome males surely inherit from their mothers. Subsequently, Hamer isolated a gene "marker" on the Xq28 chromosome that he correlated to homosexuality (Brookey 7). Although findings have yet to show that sexual orientation is wholly biological, this data is critical in showing that there is compelling reason to believe that homosexuality is not an exclusively psychological or socially developed trait. Even if homosexuality is partially psychological, Moss contends that scientists have agreed that sexual orientation is a

characteristic formed early in ones life and that a person has little control over this feature of her or his identity (Moss 102). This further indicates that homosexuality is not a voluntary attribute, but rather an immutable one. CRITERION #2 Historic and incorrect stereotypes In the many years that existed between the abolition of slavery and the Civil Rights movement, numerous of unfounded stereotypes against African Americans existed. They were depicted as the large, black, watermelon-stealing gorillas and the obese mammies with bandanas around their heads. Like this suspect class, homosexuals also face many stereotypes. Fone delineates the stereotypes of the homosexual world as that of effeminacy, cross-dressing and sexual promiscuity (Fone 398). Although many have never knowingly encountered a homosexual, they still envision them as feminine, flirtatious and fashionable. A popular stereotype against homosexuals is that they can always recognize designer fashions. Although a number of well-known fashion designers are homosexual, this does not constitute a correct induction that all homosexuals are chic and stylish. It also does not entail that all homosexuals are womanly, a typecast that can be very psychologically harmful for males. Another widely held stereotype against homosexuals is that they are sex-frenzied. Moss asserts that It has long been incorrectly asserted, for example, that homosexuals attempt to entice young children to convert to homosexuality and that homosexuals are more inclined to molest children than heterosexuals. Evidence to support such claims is unfounded, yet homosexuals are continually stigmatized by such blatantly false assertions. He continues by saying that since the inception of the AIDS epidemic, there has been a renewed focus on the supposed promiscuity of the homosexual community and condemnation of homosexuals in

general . . . fallacious stereotypes such as these have socially stigmatized homosexuals (Moss 103). This evidence of erroneous labels against homosexuals shows that they have had to deal with the same social disdainment that African Americans faced for many years and still face today. Subsequently, this affirms that homosexuals meet the second criterion for gaining suspect status. CRITERION #3 Politically powerless minority It has been argued by many opponents of same-sex marriage and other gay rights that homosexuals are in fact a very powerful political group. Marco maintains that homosexuals comprise a powerful interest group that has established a number of influential political action committees (PACs), which work to empower homosexuals (Marco 11). Basically, Marco is claiming that because homosexuals have organized themselves, they have consequently transformed themselves into a politically powerful group. This contention, however, ignores the fact that many minority groups who have been classified as suspect have also organized into interest groups and PACs. Rauch contends that in America today, the special interests and the people have become objectively indistinguishable. Groups are [the people] (Rauch, The Hyperpluralism Trap 441). While it is true that some interest groups represent homosexuals, this fact alone is not enough to prove that homosexuals are politically powerful. Interest groups have become so prevalent in America that the precense of ones supporting gay rights is not atypical; there is an interest group to represent nearly every American including those that have already gained suspect class status.1 Therefore it can be reasonably concluded that the presence of interest groups does not prove that homosexuals are a politically powerful group.

Another argument over the political power of homosexuals is that they have recently gained many rights and therefore have much political power. However, it is extremely important to note that while some states have laws that advance gay rights and prohibit discrimination, there are just as many that do not. Heaney and Berrigan explain that there are still laws that distinguish between the rights of heterosexuals and homosexuals on numerous different subjects including marriage and military service. In addition, sixteen states still have sodomy laws that many use as a means of discriminating against homosexuals in other ways including housing and child custody. They go on to note that in court cases involving homosexuals, judges and juries can often times be biased. (Heaney and Berrigan 3). Fone states that homophobia is especially evident in antihomosexual legislation, such as anti-gay rights initiatives, which deny to homosexuals the rights granted to other citizens (Fone 415). Homosexuals still have a long way to go before they will have secured all of the same rights as heterosexual Americans. Although they have made strides in recent years, it is obvious that they still face an ample amount of discrimination from legislators and even judiciaries. This is especially troublesome when one considers the fact that most rights must be gained by overturning current statutes. While homosexuals may not be politically powerless per se, if governmental biases against homosexuals exists, it makes them less than politically powerful. CRITERION #4 History of discrimination and unequal treatment In recent years America has heard an increasing number of stories concerning hate crimes against homosexuals. Unlike other situations, this apparent rise in crime cannot be blamed on increased media coverage. The Southern Poverty Law Center reports that, Hate crimes against gays and lesbians are on the rise, up about 260 percent from 1988 to 19962 (SPLC). Even more

disturbing is the SPLCs report that gays and lesbians are physically attacked in bias-motivated crimes six times more often than Jews or Hispanics and twice as frequently as Blacks (SPLC). These numbers clearly show that homosexuals not only face discrimination, but also are in grave danger. Homosexuals are persecuted even more than African Americans, another suspect class. This may be because many citizens have grown to accept skin color as unchangeable, but the origin sexual orientation remains controversial. Hate crimes against homosexuals may also be highly driven by the tenets of the Christian religion which proclaim homosexuality as a sin. Discrimination is also prevalent in schools, a place where students should feel safe even if they are homosexual. Gambini says that many kids drop out of school or turn to drugs because they cannot handle the horrible stereotypes and living in a world that doesnt accept them (Gambini in Steele 2). In these situations, discrimination is causing unequal opportunity for homosexuals because it is obstructing their ability to learn in an educational environment. This is powerful evidence of unequal treatment. Homosexuals also face an extreme amount of discrimination in the military. Jost gives the following description: Pfc. Barry Winchell suffered through four months of taunting, harassment and anti-gay epithets from fellow soldiers at Fort Campbell in Kentucky before his murder on July 5, 1999 . . .Gay-rights groups believe the real culprit in the Winchell case is the Army for tolerating anti-gay harassment as well as the militarys dont ask, dont tell policy for forcing homosexual servicemembers to conceal their identities in order to serve their country (Jost 6). The United States military quite blatantly discriminated against homosexuals during past years when it banned homosexuals from entering the military all together. Now the discrimination still

exists, but not in as clear a form. The military allows homosexuals to serve, but only if they are willing to hide their sexual identity (Fone 415). When examined closely, this new policy does not seem much different than the old one only it is now violating the right of homosexuals to free speech by threatening to discharge them if they openly express their sexuality. It is clear that homosexuals almost entirely fulfill the criteria for gaining suspect class status or at the very least, quasi-suspect class status. The probability of sexual orientation as a genetic trait has been shown, as well as the numerous incorrect stereotypes that exist against homosexuals. Homosexuals also represent a politically weak minority and have faced large amounts of discrimination in the past as they do in the present. For the purpose of this paper, it will be asserted that homosexuals constitute a suspect class as opposed to quasi-suspect or nonsuspect. Because of this, they are entitled to Equal Protection under the laws concerning the issue of same-sex marriage, unless it can shown that the regulation of marriage is within the jurisdiction of government to promote a legitimate state interest. LEGISLATION OF MORALS In theory, law is necessary to provide order. Law is necessary so that the liberty of all persons can be kept in tact. So where does a society draw the line in what should be regulated by law and what should be considered a private, personal choice? John Stuart Mills theory of the Harm Principle gives guidelines to how a society should deem what should be regulated and what should be left up to the individual. Mill asserts that The liberty of the individual must be thus far limited; he must not make himself a nuisance to other people. But if he refrains from molesting others in what concerns them, and merely acts according to his own inclination and judgement in things which concern himself, the same reason which show that opinion should be free, prove also that he

should be allowed, without molestation, to carry his opinions into practice at his own cost (Mill in Patrick). Basically Mills harm principle says that if someone is not doing something that will hurt himself or another, then he should be allowed to do it. This is not the case in American society where the government appears to be obsessed with regulating the private life of every citizen. A citizen cannot drink until he is twenty-one, he cannot smoke cigarettes until he is eighteen and he is absolutely forbidden to do drugs. Vidal believes that the government should not forbid anyone these liberties as they are absolute rights that should not be regulated hence the government attempts to dominate the private lives of citizens (Vidal 52). While it can be argued that these regulations are in place for the good of the health of the individual, it is more difficult to design a sound argument supporting the regulation of a persons sexual life. For homosexuals, involving in sexual intercourse with a consenting partner is a crime in sixteen states. Entering into a committed, civil union with a life partner of choice is legal in only one state, even though it is extremely improbable that neither sex nor marriage would directly cause harm to another citizen. This government regulation of marriage is not only an unrealistic approach to the institute of marriage, it also fails to protect the minority. REGULATION OF MARRIAGE Marriage has meant a variety of different things throughout time. It has been arranged, it has been between multiple people, it has been between one man and one woman. So what is marriage exactly? Bolte alleges that marriage has been defined as a culturally approved relationship of one man and one woman . . . or of one man and two or more women . . . in which sexual intercourse is usually endorsed between the opposite sex partners, and there is generally an expectation that children will be born of the union (Bolte 3). This is a rather confusing

definition as it gives no solid definition of just what marriage is, rather it shows who it is between. The government used this definition in the 1996 Defense of Marriage Act which, as Dority asserts defined marriage for purposes of federal benefits as a union between one man and one woman and gave states the right to refuse same-sex unions and not to recognize them from other states (Dority 3). The question is whether or not the government should have been able to define marriage. Dority maintains that marriage has also been defined in the past as a union between people of the same religion or an arrangement in which wives were the property of their husbands (Dority 1). If the government had created a Defense of Marriage Act two hundred years ago, it most likely would not have defined marriage as the union between a man and a woman, but as the union between a white man and a white woman in the interest of procreation. This definition would obviously not work in modern day society. The government cannot define and regulate marriage because marriage cannot be defined for the very reason that it has never meant one thing for a constant period of time. THE EVOLUTION OF MARRIAGE It was not very long ago that the sole purpose of marriage was thought to be procreation. Many opponents of same-sex marriage use this as an argument, but as Bolte recognizes With the elimination of the fertility clause in the marriage laws, the courts have removed the raising of children from the core of marriage law and the ablility of spouses to create children together is no longer considered a requirement of marriage . . . Moreover, if this were legitimate, withholding marriage licenses from elderly or infertile couples would also be legitimate (Bolte 2).

Dayus, et al., Holditch-Davis, et al. and Taylor all report that one in every six couples in the United States is infertile (Dayus, et al. 110; Hoditch-Davis, et al. 992; Taylor 12). Daniluk and Rosenthal both estimated this to be about 3.5 million couples (Daniluk 439; Rosenthal) and Pagnini notes that marriage and childbearing have become increasingly separate (Pagnini 331). These facts indubitably show that procreation cannot be part of the definition of marriage, otherwise these couples never should have been allowed to marry. Another popular argument is that homosexuals are too promiscuous to commit to a monogamous marriage. While evidence from Marco shows that homosexuals are more sexually active than heterosexuals (Marco 17), Bolte avows that it is unclear [whether] gays and lesbians are any less sexually exclusive or monogamous than heterosexuals . . . if the partners in a marriage choose to have an open marriage, this does not mean that their marriage is somehow voided and she continues by stating that with the advent of no-fault divorce laws, the lack of monogamy within a marriage is no longer even legal ground for divorce (Bolte 4). At one time, monogamy was a necessity of marriage; if a spouse had been engaged in an affair it became grounds for a divorce. However, monogamy is no longer a factor. Whether or not a couple will be sexually exclusive should not have bearing on whether they be allowed to marry because there is no precise or unintrusive way of proving that they will in fact be monogamous. Marriage has also evolved so that couples of different races may be allowed to marry. Before and during the Civil Rights movement, there were many arguments against interracial marriage. The Supreme Court case Loving v. Virginia (388, U.S. 1, 1967) extended the right to marriage to interracial couples. Justice Warren asserted that Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival . . .to deny this fundamental freedom on so unsupportable a basis as . . . racial

classifications . . . classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual, and cannot be infringed by the State (388 U.S. 1, 1967) This opinion allowed for the legalization of interracial marriage which, at the time, was thought of similarly to the way that same-sex marriage is thought of today. There has been no evidence in the past thirty-five years to show that interracial marriage has caused a breakdown in society, even though it was the cause of a significant evolution to the institute of marriage. Marriage has changed considerably throughout time, and for this reason it seems that an attempt to define marriage, instead of allowing it to naturally evolve, would be be futile and oppressive. Although some could argue that all these changes have led to the rise of divorce, there is no evidence to show this. Bolte contends that, a move away from traditional Western marriages could be positive for the community because all citizens would be accepted, no matter what form their marriage takes (Bolte 5). It seems that this has been the case in the past and there is no reason to believe that it could not be the case in the future as well. THE PROTECTION OF THE MINORITY In a way, legislating morality goes against what America stands for. An important principle in American government is that the laws should represent the interests of the majority while still protecting the rights of the minority. The Supreme Court case Texas v. Johnson (491 U.S. 397, 1989) gave all citizens the right to burn the American flag if they so desired. While many believe that burning the flag is wrong and should be illegal, it is necessary that this

freedom of expression remain legal because it protects the rights of the minority. Even if 95% of the population was Christian and believed that prayer in public schools should be allowed, the government would still have to protect the 5% of people who were non-Christians. That is simply the way that the American government works most of the time. Patrick explains that the most common rationale for these laws [against homosexuality] stem from a Biblical notion that homosexuality is unnatural (Patrick 51) and Davies further contends that the strong taboos against homosexuality . . . that exist in many Western societies are the result of attempts to establish and defend strong ethnic, religious, or institutional boundaries (Davies 1032). The majority of Americans do fall under the Judeo-Christian category and as Davies mentions, the earliest maledictions against homosexuality appeared in the Old Testament (Davies 1033). Therefore, it can be asserted that the idea that homosexuality is perverse or immoral probably comes from the Bible, and Yang affirms that approximately 50% of Americans believe that homosexuality is a moral issue (Yang 485). This all shows that in the case of homosexuality, the Christians or moralists are the majority and the homosexuals are the minority, which must be protected. Clark alleges that what excluded homosexual sex from protection under the right to privacy in the opinion of the Court, was simply the traditional assumption that something is wrong or immoral about it . . . what criminalizes gay sex, it turns out, is simply traditional, longstanding homophobia and heterosexism (Clark 5). Clark refers to another Supreme Court case, Bowers v. Hardwick (478, U.S. 186, 1986) in which the court ruled that Georgias antisodomy law criminalizing sex between homosexuals was constitutional because of the presumed belief of a majority of the electorate in Georgia that homosexual sodomy is immoral and unacceptable (478 U.S. 186, 1986). This case unequivocally failed to protect the rights of

the minority. Even if the majority of Georgians belived that homosexuality was immoral, in a case where certain enumerated rights are at question the minority must be protected. Justice Blackmun delivered a dissenting opinion in this case: That certain, but by no means all religious groups, condemn the behavior at issue gives the state no license to impose their judgements on the entire citizenry. The legitimacy of secular legislation depends instead on whether the State can advance some justification for its law beyond its conformity to religious doctrine (478 U.S. 186, 1986). Asides from protection of the minority, legislation that opposes homosexuality also imposes upon all citizens the requirement to follow certain religious doctrines. In the First Amendment, the U.S. Constitution guarantees free exercise of religion. If a person belongs to a non-religion, this can be interpreted to mean free exercise of no religion. The problem with a law that prohibits same-sex marriage is that it is based on morality which comes from Americas deeply rooted Judeo-Christian heritage. However, this is not compelling enough to necessitate any law denying rights to homosexuals. Bolte proclaims that if tradition were enough to support the law, numerous practices, such as slavery, would still be considered just (Bolte 7). Contraception is also condemned in the Bible, but the Supreme Court case Griswold v. Connecticut (381 U.S. 479, 1965) legalized contraception because even if certain people believe that it is a sin, not all people do. The idea with contraception, and similarly with abortion, is that it is a choice. If one does not believe in the policy or agree with it then he or she does not have to utilize said policy, and will still be allowed to practice his or her religion. For one whose religion does not prohibit such measures, it is still possible for him or her to freely practice that religion of choice. Nevertheless, laws continue to impose a certain moral standard upon citizens despite the free exercise clause. Vidal concludes that it is curious how little understood [the first]

amendment is yes, everyone has a right to worship any god he chooses but he does not have the right to impose his beliefs on others who do not happen to share in his superstitions and taboos (Vidal 79). The general idea is that if immoral actions are allowed, whether or not they cause harm, religious people will somehow be affected. Dohrn notes that its not new to find landlords or employers seeking exemptions from non-discrimination mandates based on their religious and moral objections. These same arguments were raised to resist prohibitions on race and sex discrimination (Dohrn 1). However, something cannot be prohibited simply because it goes against the religious doctrines of certain people. If this were the case, then practically all laws could be deemed unconstitutional. Dohrn notes that, associations must show that complying with the law would disable them from disseminating their message (Dohrn 2). Even if laws go against peoples religions, it must be shown that these laws impede on their ability to continue practicing their religion. In the case of same-sex marriage, it is highly unlikely that the legalization of civil unions between homosexuals would prevent religious Christians from continuing to practice their religion because marriage is such a personal thing and because civil marriage is quite different than a religious marriage. However, the prohibition of same-sex marriage enforces upon secularists the requirement to comply with religious doctrines preventing them from practicing their non-religion, if they choose to enter into a same-sex civil union. CONCLUSION As the United States continues to move forward into the 21st Century, it seems that it is also necessary to continue the promotion of tolerance that the country is known for. Along with this promotion of tolerance, citizens must become more educated on homosexuality so that it is possible for all to see that homosexuals are indeed part of a minority class. As Dohrn asserts, a

persons sexual orientation is not a proxy for some particular statement or viewpoint, so simple disclosures of sexual orientation must be treated more like a persons race, than a persons expressed political views. This has come up when a teachers being open about her sexual orientation is treated as if she took an inappropriate political position in class (Dohrn 7). Homosexuals, like African Americans and women, are a suspect class and should have equal protection under the law. As marriage has evolved throughout time, it has shaped so as to take on many different forms. To deny any two people a legal marriage violates the Equal Protection clause and for the government to attempt to define marriage goes beyond their duty and ability. Lastly, homosexuals should be granted the right to marriage because they are a minority that should be protected. In a world where the beliefs of the majority are so often pushed through, the government must not forget that America stands for freedom. This means freedom for even the smallest minority. It is therefore necessary that same-sex marriage be legalized because homosexuals are protected under the Fourteenth Amendment and because the regulation of private acts that cause no harm can no longer be justified in such a diverse society. _____________________________ NOTES
1

Of these groups, it is important to mention the National Assocation for the Advancement of Colored People

(NAACP), which was very influential for African Americans during the Civil Rights era. Another prominent interest group that represents a suspect class is the National Organization for Women (NOW).

The Southern Poverty Law Center notes that these figures almost certainly underestimate the number of people

attacked -- both because police dont necessarily list such violence as a hate crime, and because victims dont tell authorities they were attacked for their sexual orientation. Furthermore, one study indicates more than a third of victims dont report the crimes (SPLC).