Same-Sex Marriage in the United States - Research Proposal Example

Same-Sex Marriage in the United s: The Marriage vs. Civil Union Debate Introduction The same-sex debate has raged on in the United States for some time now. The debate seems to be generating more heat and less light. It all started in 1972 when the Supreme Court declined to hear and determine Baker v. Nelson(Samar 138). This was a same-sex marriage appeal case that had first been heard and determined by a court of law in Minnesota. In the opinion of the Court, the substance of the case was too trivial to warrant the attention of the court. Then, in 1996, the Defense of Marriage Act (DOMA) was enacted. Since then, the debate has tended to take the form of a revolving door in which courts rule against state-imposed bans on same-sex marriage while legislative efforts attempt to restore the same bans. This paper explores a single aspect of the debate: the possibility of the repeal of DOMA and its implications for same-sex marriage in the country. Background on the Title Recently, President Barrack Obama declared that they are opposed to DOMA and pledged to do everything within their power to get the Act repealed during their presidency. Then, in what may seem a contradiction, the President said that they do not support same-sex marriage in totality. Rather, they support civil unions. Apparently, if successful, the Presidents move would enable same-sex couples to enjoy the rights that DOMA currently precludes them from enjoying. The new law, it appears, would make it possible for same-sex marriage partners to enjoy the same rights as a heterosexual couples without labeling their union a "marriage". This paper focuses, in more depth, on this aspect of the same-sex marriage debate. It explores the distinction between a marriage and a civil union. It then examines the implications of repealing DOMA on the same-sex marriage atmosphere in the United States. Discussion DOMA and Same-Sex Marriage As enacted in 1996, DOMA under Section 3, defined "marriage" as a legal union involving two people of the opposite sex that reside together as husband and wife(Clarkson-Freeman 3). The Act defined a “spouse” as an individual of the opposite sex who is either the husband or a wife. This definition was so explicit that that it ruled out a same-sex union that one may have wished to brand “marriage”. In fact, the Act was so clear in its definition of marriage that it did not entertain polygamy that is the practice of one man (or sometimes a woman) marrying many spouses. Thus, it is obvious why this Act, in its original form, was not beneficial to same-sex couples and why its repeal, or at least an amendment to its definition of marriage, would have been welcome among supporters of same-sex “marriages”. In its original form, DOMA allowed states to decline to recognize same-sex marriages recognized under the laws of other states(Smith 305). However, individual states had a free hand in passing laws that allowed and recognized same-sex marriages. In addition, DOMA had prevented other federal laws from recognizing same-sex couples as “spouse”. In effect, these couples could not enjoy federal benefits reserved for spouses. These benefits included insurance benefits for public sector employees, social security for a surviving spouse should the other spouse die, the filing of tax returns jointly, immigration and bankruptcy. In addition, same-sex couples were excluded from laws that protect the families of federal officers. Since its enactment, DOMA has been a popular subject for political debate(Leeman 2). Soon after it was enacted into law, Bill Clinton, who had assented the Bill into law, started to push for the repeal of DOMA. During the 2000 elections, the Republican Party expressed their support for DOMA, albeit in the most general terms. They also expressed concern about what they called "judicial activism". By this, the meant that some federal judges and bureaucrats were compelling states to recognize other unions as marriages. On their part, the Democratic Party was silent on DOMA that year. President George W. Bush felt that DOMA was vulnerable(Battalora 150). Consequently, in 2004, they endorsed a proposal to amend the Constitution to restrict marriage to couples of the opposite sex. Bush was convinced that some judges and states were a real threat to the established most basic institution of human civilization: marriage. However, come January 2005, Bush announced that they would not lobby for DOMA. They felt that the majority felt that DOMA could not be challenged on constitutional grounds. They were wrong, as we will find out shortly. In the meantime, one may argue that Bushs support for and a desire to protect DOMA was only halfhearted. During the 2008 election campaigns, Obama pledged to endorse DOMA(Bordoloi, OBrien and Edwards 46). The United States Department of Justice, in 2009, defended the constitutionality of DOMA. This was just one of the several occasions when the Department was faced with the onus of defending federal laws challenged in courts of law. Supporters of the traditional institution of marriage involving a man and a woman noted that in defending DOMA, Obama’s administrationomitted the compelling evidence put forward by the Bush administration that spouses of the opposite sex raised children better than couples of the same sex. In February 2011, in response to lawsuits that questioned the constitutionality of DOMA, the Obama administration announced that it would no longer defend Section 3 in court. Nonetheless, the administration was going to continue to enforce DOMA until either Congress repealed Section 3 or the Judiciary delivered a definitive ruling to the effect that DOMA was unconstitutional. Then, in June 2013, the Supreme Court ruled that DOMA was unconstitutional. In addition, the Supreme Court ruled that DOMA was invalid and its only purpose was to frustrate the efforts of individual States that sought to guarantee and protect the right of the gay community to marry and to be married(Fairfax 90). The 84-year old Plaintiff Edie Windsor triggered the events that led to this landmark ruling. Winsor sued the federal government following the refusal of the Internal Revenue Service to refund them $363,000 worth of federal estate taxes. They had paid that sum after the demise of their spouse, Thea Spyer, in 2009. The biggest winners following the striking down of DOMA are the gay and lesbian communities. However, they were not alone in their jubilation. Shortly after the Supreme Court delivered the verdict that rendered DOMA unconstitutional, President Barrack Obama released a statement in which they celebrated the decision. They said that DOMA was an instrument of discrimination that was entrenched in law. The Act had treated gay and lesbian couples as a less group of people. Nonetheless, the President was glad that the Supreme Court had made the wrong right, as a result of which the United States was better off. Needless to say, for supporters of opposite-sex marriages, the declaration of DOMA unconstitutional was a big loss. Civil Unions The term “civil union’ refers to a non-religious form of partnership that is similar to marriage and sanctioned by the State. The term is also referred to by several other labels such as “civil partnership” and “registered partnership”. Different couples may desire a civil union for different reasons – personal, legal, religious among others(Natale and Miller-Cribbs 168). A civil union could entail couples of the same or opposite sexes. In many jurisdictions, civil unions between couples of the same sex have since been superseded by same-sex marriage. In some countries, promoters of same-sex relationships are using civil unions as the first step toward getting governments to recognize same-sex marriages. In the United States, Vermont State offered the first civil unions in 2000. These unions are not recognized by the federal government and, under DOMA, other U.S. states are not required to recognize them. Connecticut and New Jersey were next in enacting civil union laws; they had them in place by end of 2006. Civil union laws provide protection at the state level. However, at the federal level, couples in civil unions are denied the dignity, security and power that legally married couples enjoy(Chonody, Smith and Litle 275). Compared to marriage, civil unions have several limitations(Orthwein, Packman and Jackson 525). First, while all states recognize and observe marriages, not all states have laws on civil unions and questions linger on how states that have no civil union legislation should behave toward those that recognize these unions. Secondly, in a state that recognizes same-sex marriages, it is easy to terminate a marriage through a divorce. This is not the case for civil unions. Thirdly, spouses in a civil marriage are entitled to at least 1,138 protections, rights and privileges from the federal government. For instance, a spouse in a civil marriage may be granted leave from work to take care of an ailing member of their family. Civil unions bring with them few (if any) of these benefits. In order to win federal and state recognition, promoters of same-sex marriage advance a number of arguments (Orthwein, Packman and Jackson 530). First, they argue that the civil marriage, not civil unions, is the only way to ensure equality between opposite-sex and same-sex couples. Secondly, they are seeking to end discrimination against gay and lesbian couples by the government at both levels. The debate has nothing to do with religious beliefs. Third, they argue that besides being a social and religious institution, marriage, however defined, is also a legal institution. The government has a duty to protect marriages in all its forms. Looking at this debate, one wonders why the advocates of same-sex marriage cannot quit their enterprise and marry legally under DOMA. In any case, they know that the only way to tap into the numerous federal and state benefits. Implications of Repeal of DOMA for Same-Sex Marriage With the Supreme Court ruling that rendered DOMA unconstitutional, it would appear that for promoters of same-sex marriage in the United States, the battle is won. Now they and their clients, can walk into courts of law and demand the rights, privileges and benefits currently enjoyed by married couples of the opposite-sex only, and withheld from them under DOMA. However, one would expect that before gay and lesbian couples can be called “spouses” and enjoy these rights, Congress will have to enact a new federal marriage law that will be in line the constitution’s ambiguous definition of marriage so it can accommodate all manner of unions people may call “marriage”(Fairfax). Alternatively, Congress could repeal the contentious Section 3 and retain the rest of DOMA Conclusion Since becoming a law in 1996, DOMA has continued to generate more debate than any other that has been passed in the country in recent years. The Act has also elicited mixed reactions from different regimes. While some regimes have seen it as a noble Act only by which the sacred institution of marriage can be saved from the jaws of modernism, others have seen it as an instrument of discrimination. In the end, with the Supreme Courts ruling last year that declared DOMA unconstitutional, the latter camp seem to have won the battle. Only time will tell the reaction of the Congress toward the verdict. Works cited Battalora, Jacqueline. "Supremacy by Law: The One Man One Woman Marriage Requirement and Antimiscegenation Law." Journal of Bisexuality, 7.3-4 (2008): 145-169. Print. Bordoloi, Samit Dipon, et al. "Creating an Inclusive and Thriving Profession: Why the American Association of Marriage and Family Therapy (AAMFT) Needs to Advocate for Same-Sex Marriage." Journal of Feminist Family Therapy.25.1 (2013): 41-55. Print. Chonody, Jill, Kenneth Scott Smith and Melanie Litle. "Legislating Unequal Treatment: An Exploration of Public Policy on Same-Sex Marriage." Journal of GLBT Family Studies, 8.3 (2012): 270-286. Print. Clarkson-Freeman, Pamela. "The Defense of Marriage Act (DOMA)." Journal of Homosexuality, 48.2 (2005): 1-19. Print. Fairfax, Colita Nichols. "Social Work, Marriage, and Ethnicity: Policy and Practice." Journal of Human Behavior in the Social Environment, 24.2 (2014): 83-91. Print. Leeman, Lawrence. "A Personal Perspective on the Defense of Marriage Act (DOMA)." Journal of Progressive Human Services, 5.2 (2001): 1-3. Print. Natale, Anthony and Julie Miller-Cribbs. "Same-Sex Marriage Policy: Advancing Social, Political, and Economic Justice." Journal of GLBT Family Studies, 8.2 (2012): 155-172. Print. Orthwein, Jennifer, Wendy Packman and Rebecca Jackson. "Filicide: Gender Bias in California Defense Attorneys Perception of Motive And Defense Strategies." Psychiatry, Psychology and Law,17.4 (2010): 523-537. Print. Samar, Vincent. "Same-Sex Marriage." Journal of GLBT Family Studies, 1.2 (2005): 137-141. Print Smith, Anna Marie. "The Politicization of Marriage in Contemporary American Public Policy: The Defense of Marriage Act and the Personal Responsibility Act." Citizenship Studie,s12.2 (2001): 303-320. Print. Read More