Legalization of Same-Sex Marriage and the
Benefits Gained if Legal Nationwide
Trevor Cox
University of Texas at El Paso
October 27, 2011
Legalization of Same-Sex Marriage Nationwide
In the United States the topic of same-sex marriage has been one of controversy and that of disputes between state law and federal law. Each state has different laws on what constitutes a marriage binding in the eyes of the law and of the church, federal law has yet to recognize same-sex marriage in any sense at all. There are many aspects in the lives of these people wanting recognition of their marriages that are affected that include: partner benefits, equal benefits like the ones awarded to opposite sex couples, and discrimination issues. Legalization of same-sex marriage, domestic partnerships nationwide would give ease to the LGBT (lesbian, gay, bisexual, and transgendered) community to have equal and full rights as U.S citizens as heterosexual couples do.
Many Americans are unsure of the different levels to what the U.S tolerates and allows with same-sex marriage. In an article written by Edward Stein, (2011) he gives examples of the different laws each state had in regard to same-sex marriage: Today, six states (Connecticut, Iowa, Massachusetts, New Hampshire, New York, and Vermont) and the District of Columbia allow same-sex couples to marry; nine states offer (or v\dll, as of 2012) same-sex couples the chance to get all or almost all of the same benefits that married couples get in that state (New Jersey [through civil unions, or [CUs], Delaware [CUs], California [through domestic partnerships, or [DPs], Hawaii [CUs], Illinois[CUs]; Nevada [DPs], Oregon [DPs], Rhode Island [CUs],and Washington [DPs]); four states offer same-sex couples the chance to register for a "weak" partnership that gives them a limited subset of the benefits that married couples get in that state (Colorado, Maine, Maryland, and Wisconsin).(p. 650)
Each state government has different laws and legislations on what they use to define the validity of same-sex marriage, as shown in the quote from Stein’s research. In Figure 1, a chart is shown on what each state in the United States defines as a marriage, and which states allow same-sex marriage and to what extent. With the passing of laws allowing same-sex marriage comes many types of discrimination, which sadly is aspect of life seen almost everywhere including the work place. In Toward a ‘European Model; of Same-Sex Marriage Rights: A Viable Pathway for the U.S., “For instance, since 1994, it had been illegal for employers and providers of services to discriminate between married and unmarried couples, including domestic partners.” (Glass, C., Kubasek, N., Kiester, E., 2011, p.143). It states that discrimination is illegal in the place of employment, though many people are still sadly victims of it. In the recognition and validating same-sex marriage nationwide this might help to stop the types of discrimination seen in different forms. It isn’t seen in only the work place but also in the court systems.
There is an amendment to our constitution that gives equal rights to any person that are American citizens, this clause in the 14th amendment is the Equal Protection Clause. When dealing with same-sex marriage issues the clause within the amendment to the constitution opens the eyes of many to just how unfair and unjust the court systems can be. In an article written by Justin Reinheimer he states that (2011), “While courts may be incredulous about recognizing a right to same-sex marriage in a substantive due process analysis that is deeply concerned with history and tradition, the Equal Protection Clause's aspirational nature makes it more congenial to recognizing inequality where none was thought to exist before.” (p. 228). When comparing the clause to the actions taken by state court systems and federal court systems it brings to light many injustices. State laws and federal laws oppose our constitutional laws in the eyes of Justin Reinheimer, according to the equal protection clause of our 14th amendment to the constitution. “Equal protection challenges object to the sex-based classifications employed by same-sex marriage prohibitions and also argue that the laws in question discriminate against lesbians and gay.” (Reinheimer, J., 2006, p. 217). The equal protection clause guarantees equal rights to all citizens, since every citizen is guaranteed that right is prohibition of same-sex marriage then not unconstitutional. Not only does this justify in a sense that prohibition of civil union and same-sex marriage is unconstitutional, it also defies the type of government Americans strive to achieve.
Though same-sex marriage and domestic partnerships are legal in some states, since it is not recognized at a national level. Benefits for the partners in these unions are not the same as that of heterosexual couples. As Stuart Armstrong states (2011), “A same-sex couple residing in a state where their relationship is not recognized by law may not be eligible for any kind of pension survivor benefit from a traditional defined-benefit pension plan. In states where the couple’s relationship is recognized, the couple will still not be eligible for a federal level, ERISA-covered, defined-benefit pension plan but may be eligible for a state level survivor benefit.” (p. 57). If same-sex marriages were recognized at a national level as opposed to at a state level then marriage rights for same-sex partners would be equal to that of a hetero couple
The idea that marriage is not recognized nationwide whether that be of same-sex or opposite-sex directly opposes our form of government system that is in affect in the U.S. “This can occur even as the debate concerning same-sex marriage continues in the political and judicial realms. Under a federalist system, there need not be one state in any one geographic area conferring the marriage status.” (Candeub, A., Kukendall M., 2011, p. 780). Making a marriage of any type binding or recognized in only certain boundaries of a state or region giving states the right to make any law is a municipal government not a federal government. Not only if marriage was not bound to different regions and only recognized in certain places according to Adam Candeub, and Mae Kukendall it would, “…lower the cost of access to any marriage where there is a problem of physical separation, as well as offer access to marriages that are withheld from a couple by the laws of another location.” (2011, p. 742) The lower cost would come directly by removing these bounds and laws on where states recognize different marriages.
So in conclusion, Legalization of same-sex marriage, domestic partnerships nationwide would give ease to the LGBT (lesbian, gay, bisexual, and transgendered) community to have equal and full rights as U.S citizens as heterosexual couples do. The banning of same-sex marriage and civil unions opposes the type and form of government the United States says is instituted, is does not allow all Americans the equal opportunities and rights, and also affects the prejudices in our court systems and laws. If same-sex marriage were allowed nationwide and recognized in all states, every American would benefit through peace, equality, and justice.
Resources
Armstrong, S., (2011). Insurance Strategies for Gay Couples. Journal of Financial Service Professionals. 65(5), 55-59.
Candeub, A., Kukendall, M., (2011). Modernizing Marriage. University of Michigan Journal of Law Reform. 44(4), 735-796.
Glass, C.M., Kubasek, N., Kiester, E., (2011). Toward A ‘European Model’ of Same-Sex Marriage Rights: A Viable Pathway for the U.S.?. Berkeley Journal of International Law,29(1), 132-174
Lupia, A., Krupnikov, Y., Levine, A.S., Piston, S., Von Hagen-Jamar, A., (2010). Why States Differ in their Treatment of Same-Sex Marriage. Journal of Politics, 72(4), 1222-1235
National Conference of State Legislatures. (2011). Same-Sex Marriage, Civil Unions and Domestic Partnerships. Retrieved from http://www.ncsl.org/default.aspx?tabid=16430
Rauch, J., (2004). gay marriage: Why It Is Good for Gays, Good for Straights, and Good for America. New York, NY: Times Books Holt and Company, LLC.
Reinheimer, J., (2006). Same-Sex Marriage Through the Equal Protection Clause: A Gender- Conscious Analysis. Berkeley Journal of Gender, Law & Justice, 21, 213-240.
Stein, E., (2011). Sexual Orientations, Rights, and the Body: Immutability, Essentialism, Rights, and Nativism. Social Research. 78(2), 633-658.
Wolfson, E., (2004). Why marriage matters: America, equality, and gay people’s right to marry. New York, NY: Simon & Schuster.
