Separate But Equal, Is Another Phrase for Unequal

Yesterday in one of my law classes, we were asked to debate the issue of gay rights to marry. The idea to debate this issue was, already, an invitation for disaster. I attend law school in the Bay Area, so as you may imagine the views here about gay rights, for the majority, are for extending those rights. Our professor posed a question, during the debate, to the entire class. The question being, "Is the question of allowing marriage for homosexual relationships a question of civil rights?" Interestingly enough, the class was mostly silent, which I found shocking. So many people, liberal and conservative alike, squabble over the issue of gay rights to marriage and yet this question was given little in the way of comment. I, of course, had something to say. Something which I felt was neither hugely intelligent nor hugely original.

Yes, the right of gays to marry, as heterosexual couples do, is plainly a civil rights issue because marriage is a civil right. Some people perhaps believe that there is no comparison between civil rights issues, (for instance racial issues surrounding segregated schools, or the right to vote,) and gay rights. But how can one not see the glaring similarities.


What the Right to Marry Entails:
Taken from the decision in Baker v. State of Vermont, the court summarizes exactly what tangible benefits, rights, and protections are not given to people who are in homosexual relationships:
The court stated, "In denying [the plaintiffs] access to a civil marriage license, the law effectively excludes them from a broad array of legal benefits and protections incident to the marital relation, including access to a spouse's medical, life, and disability insurance, hospital visitation and other medical decisionmaking privileges, spousal support, intestate succession, homestead protections, and many other statutory protections." Baker v. State, 170 Vt. 194 (Vt. S.Ct. 1998.

The counter argument to giving gays the right to marry is founded on the idea that the State of Vermont has an 'interest in promoting the "link between procreation and child rearing." Baker, 170 Vt. 194. It is unbelievable that this was the argument, the way of masking the religious beliefs that people have concerning the nuclear family and how to maintain it.

Austin Cline, in his summary of gay rights and marriage, said the following:
"In debates over gay marriage, there is a lot of focus on the various legal rights which same-sex couples miss out on because of their inability to marry. If we take a closer look at those "rights," however, we find that they are primarily about helping couples care for each other. Individually, the rights help spouses support each other; taken together, they help society express the importance of being a spouse and the fact that marrying changes who you are and your status in the community."

Those rights are not just about helping or pushing a couple to care for one another, those rights are also about the "community" treating that union with respect and giving or upholding that couple's right to be treated as spouses when at the hospital, at their child's school, at church, at work, etc. So much of a union is economic and legal questions pertaining to marriage such as intestacy statues and other state and federal laws concerning spousal survivorship rights are much more important than some people may realize.

In addition, in tort actions for wrongful death. In most states, same-sex partners are unable to bring an action for wrongful death or loss of consortium for their partner. If they are not named in a will, they are even less likely to be compensated.

However, I think that Cline's mention of "community" is well founded. The ferocious attacks against same-sex couples marrying is based on notions of community and the relationship between marriage, family, and the health of the community as a whole. Some people view same-sex marriage as a disease, that may spread once a community is "infected." For those people whose religious beliefs tell them to scorn same-sex relationships, marriage is a large part of life, a life which is based on religious teachings that tell them same-sex relations are wrong.

State Constitutional Amendments:
"The 17 states that currently have constitutional amendments defining marriage as between a man and woman only are: Alaska, Arkansas, Georgia, Kansas, Kentucky, Louisiana, Michigan, Mississippi, Montana, Nebraska, Nevada, North Dakota, Ohio, Oklahoma, Oregon and Utah." Human Rights Campaign

Sadly, these constitutional amendments are not just barring same-sex marriages, they are often barring domestic partnership between even opposite-sex couples.
In Michigan and Ohio, domestic partners are denied benefits. "In March 2005, the state attorney general issued an opinion stating that local jurisdictions and governmental entities, such as school boards, are prohibited from offering domestic partner benefits to their employees." HRW

In addition, the amendments are raising questions about domestic violence laws pertaining to same-sex couples.

"The three states whose initiatives refer only to the granting of marriage licenses are Montana, Oregon (the one place where the vote was very close), and Mississippi. The states that used marriage as a cover to mount an assault on contractual relationships of all kinds were Arkansas, Georgia, Kentucky, Michigan, North Dakota, Ohio, Oklahoma, and Utah." Boston.com News

Gender Issues:
If Same-sex couples cannot marry, who decides who is a man and who is a woman?
The question of barring gays from marrying also delves into other far more complicated notions of gender. For those people born beleving themselves to be women, though born men, who live their lives as women, they could not under our law marry a man because as we "biologically" define them, they are men.


HRC

"Gays Need Heterosexuals to Oppose Queer Crow' Laws"
"The Gay Marriage Deception"