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HOMOSEXUAL (SAME-SEX) MARRIAGES:

LEGAL ASPECTS

Civil and religious aspects of marriage
Concerns by legislators and courts

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Civil and religious aspects of marriage:

Marriage is a unique practice, in that it is both:

bulleta religious sacrament or ritual performed by churches, synagogues etc., and
bulleta legal registration controlled by the state which brings many rights, benefits and responsibilities to the spouses.

Some couples in North America have a full religious marriage; they obtain a license from the state and go to their church, mosque, synagogue or temple to be married. Others have a secular marriage: they purchase a license and are later married by a Justice of the Peace or other state-sanctioned individual. Many European countries have a total separation of church and state: a couple will go to a government office and obtain a civil marriage. At this point, they are married as far as the state is concerned, but the religious organization (if any) that they are affiliated with will consider them to be still single individuals. They may then elect to go through a second marriage ceremony in their place of worship.

Governments do not regulate other religious rituals or ceremonies -- e.g. who can be baptized, or ordained, or take communion, or become a member of a congregation. But they must decide who can be legally married, because of the status, tax benefits and legal responsibilities that are extended only to married couples. Also, their criteria for eligibility for marriage must meet the requirements of state, province and federal constitutions. Religious institutions are free to design their own criteria, no matter how discriminatory. Often "church and state" have differing rules regarding who may marry. For example, the Roman Catholic church might prohibit the marriage of a paraplegic man because he could not engage in sexual intercourse and thus procreate. However, the state would have no reservations about providing a marriage license to the same individual. On the other hand, some religious groups can and do marry gay or lesbian couples who cannot obtain a marriage license from the state. These rituals are most frequently called "union ceremonies" or by some similar name.

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Concerns by legislators and courts:

An anonymous third-year gay law student did a literature search to find out what arguments had been used in court and legislative bodies to justify the ban on same-sex marriages. 2 He found 5 reasons, to which we have added three:

bulletProcreation argument: the purpose of marriage is to procreate; making babies requires a heterosexual couple. However, nobody appears to take this argument to its logical conclusion and terminate or ban all marriages where one partner is impotent, infertile, elderly, or has decided to not have children. In addition, lesbian couples can and do have children; all they need is artificial insemination, just like many heterosexual couples in which the husband is infertile.
bulletDetermining who is the legal parent: Lord Mansfield's rule presumes that children born to a married woman are a product of the husband and the wife. Some have expressed concern over how to establish the parenthood within a homosexual marriage. This is does not seem to be a problem:
bulletthe spouse bringing children into the marriage would be the parent; the other spouse could try to adopt if they wished
bulletboth lesbian spouses could be considered parents of any child born into their marriage
bulletboth gay spouses could adopt any children brought into their family
bulletArgument from historical tradition: We have not allowed homosexuals in the past to marry. That is true, but until a few decades ago, we did not allow people of different races to marry. Before that, in some states, we did not allow African-American slaves to marry. The institution of marriage has been in a continual state of flux for centuries.
bulletThe Defense of Marriage Act: Many states have passed DOMA laws which they believe will excuse them from recognizing gay or lesbian marriages performed in other states. But some constitutional experts feel that the "full faith and credit" clause of the U.S. Constitution makes such laws unconstitutional. Also, if same-sex couples cannot have the same rights in one state as they do in another, then their ability to travel within the U.S. would be restricted. And the right to travel has been well established by the courts. Finally, the U.S. Supreme Court decided in a recent Colorado voter initiative case that a law which is designed to reduce the civil and human rights of a specific minority is unconstitutional. What is a more fundamental human right than the right to marry?
bulletNo compelling state interest: Legislation must fulfill a compelling state interest in order to be constitutional. Some feel that there is no need to extend equal rights to gays and lesbians. But public opinion polls consistently indicate that the vast majority of homosexuals feel that the right to marry is very important - to them. Also, married people tend to be more monogamous than singles; monogamy lessens the frequency of transmission of HIV (which leads to AIDS), and other STDs.
bulletIt would cost too much: This is a valid point. Giving gays and lesbian couples the same rights as heterosexual couples would indeed increase the tax burden. Married couples typically pick up over 1,000 responsibilities, benefits and rights from the federal government and hundreds from their state government. So, it is cheaper for governments to deny homosexuals the right to marry. Companies would have to extend dental, medical and other employee benefits to homosexual spouses. But think of how much more money could be saved if the government cut off all benefits for red-heads, or African-Americans, or people over 6' tall...or from any other minority. Fairness requires that people be treated equally.
bulletGay marriages threatens the institution of marriage: This is presented as a self-evident fact by many theologians, legislators, judges, etc. But others are mystified by this belief. They would not feel that their marriage was threatened if a gay or lesbian couple down the street suddenly was given a marriage license to put on their wall, dental and medical benefits, survivor pension benefits, various protections for their children, etc.
bulletMost people are against gay marriages: This is also true. Males and older people in particular oppose same-sex marriages in the U.S. But then, most people in racially segregated areas were opposed to integration during the 1960's. Most people in those states which prohibited mixed race marriages were opposed to the legalization of those marriages when the U.S. Supreme Court declared the state laws to be unconstitutional. Making some people feel more relaxed is not a sufficient reason to deny others equal rights under law.

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Related section on this web site:

bulletIs same-sex marriage a good or bad idea? A threat to the institution of marriage, or a beneficial cultural change?

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Copyright 1996 to 2005 by Ontario Consultants on Religious Tolerance
Last update: 2005-JAN-25
Author: B.A. Robinson

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