Will the US ever approve of the love between ‘Adam and Steve’?

by Miriam Stienhans

Marriage. A man in a black suit looking down the aisle at his promised woman, who walks towards him. She wears a white dress with a long train.  Children are throwing leaves of roses. Tears are dropping down the faces of their mothers. Now finally they find their peace blessed by God.

https://i1.wp.com/i.telegraph.co.uk/multimedia/archive/02173/gay-marriage_2173326b.jpg

Stop! Does this really reflect how we see marriages today? Do we still perceive it in the idealised, traditional way we used to imagine when we were young? Or is marriage simply an agreement between two adults, who want to show the world that they belong together – socially and legally?

In the majority of religions marriage is understood as a “union of one man and one woman”, blessed by God. The prime purpose of marriage is often procreation, the continuance of the relationship and the passing of faith to the children. Fundamentalist Christians argue that these goals only fit to a heterosexual partnership but gay Christians would also strive for these aspects to their marriage.

Legally speaking, marriage is not more than a civil contract.  Many non-religious people get married for stability, known paternity, spousal support, survivor’s right and procreation. The gay movement strives to modify the civil marriage so that they are included and can also receive the benefits of this civil contract.

But if we take a look at the United States the answer is clear. Nearly in all states gay marriage is forbidden. Just in seven States (Massachusetts, Connecticut, Iowa, Vermont, New Hampshire, New York and the District of Columbia) it is allowed. The question arises why there are different legislations concerning this issue? There is no definition of marriage in the federal constitution of the United States, so it is left to the separate States to define it and make legislation accordingly. And mostly they decided to forbid it.

There are exceptions; five States (Delaware, Hawaii, Illinois, New Jersey, Rhode Island) which recognize a “civil union” of gay couples. It is simply a union recognized by law. This legislation, however, seems quite half-hearted as it attempts to recognize same-sex relationships legally, but nevertheless treats them as something inherently different. Somehow those “civil unions” appear to be “second-class marriages”: equally handled by law but nevertheless separated.

Another exception is the recognition by eight States (California, Nevada, Oregon, Washington, Hawaii, Maine, Wisconsin and the District of Columbia) of “Domestic Partnerships” and giving these some spousal rights. Domestic Partnerships can be understood as a legal relationship of two persons who live together and share a common domestic life without being married or having a civil union.  Against the backdrop of America’s history, especially the Civil Rights Movement, it can be questioned whether the US really wants to continue with its discriminatory practices by treating citizens differently due to their sexual orientation.

So why is the USA so reluctant to treat gay marriages as they do heterosexual marriages? Religion.

Some who interpret the Bible as being against homosexuality or those who have more fundamentalist backgrounds, tend to be more opposed to gay marriage. On a day-to-day basis, religion plays a greater role in the United States than in Europe. Over 90% of the Americans believe in God and in Europe just 60%. But aren’t the majority of all western governments supposedly meant to be separated from the church and religion? Should they not govern in adherence to equality, fairness and freedom?

The gay movement doesn’t claim a new definition of marriage in the religious sense, but that the government modifies the current conditions for civil marriage so that gay people are equally included. Barack Obama supports same-sex marriage. However, the Federal Defence of Marriage Act (DOMA) of 1996 denying the federal recognition of gay marriages in the Constitution is still in existence. Furthermore, a strong and influential resistance of religious groups stands as an obstacle for the movement. Nevertheless, 42% of the Americans stated that same-sex couples should legally be allowed to get married, and 25% support civil unions. Shouldn’t the constitution present the will of the people? Arguably, and this is a topic which has been discussed extensively, the constitution is out-of-date and needs to be updated. And the inclusion of this issue is one of the changes that must be made.

Photo courtesy of the Telegraph (ironically)

Miriam
Miriam
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7 thoughts on “Will the US ever approve of the love between ‘Adam and Steve’?”

  1. I think you should not forget that the US Constitution is short for a reason: it is limited to the essentials of the State and the division of powers, for the rest the US States are absolutely sovereign, very much similar to the European nation states (but not quite). Americans tend do have an almost natural abhorrence against law from Washington, especially citizens of the more conservative States. The question therefore is whether the US Constitution is the right place to deal with this, and I think it is probably not the case with respect to marriage (unless you bring the equal-protection argument). Obama already instructed his government not to defend the Act you mentioned, thereby removing the federal government almost entirely from of the debate. It is a typical state matter, and there is no change in that. Some of these States have chosen democratically to change the law, others were forced by judicial decisions. Some States even amended their constitutions to reject it completely. I think it is unlikely that the situation is going to change soon if the States do not act themselves. Congress is as usual divided (the House is Republican, the Senate Democratic), and the same applies to the current Supreme Court (5:4 majority of conservatives). There may be some hope if a conservative justice retires during Obama’s term, but this is absolute speculation at this point. Even in that event it could take years before the Supreme Court would consider a case.

    It may surprise you to know how few European states have actually adopted same-sex marriage: only 7 European states, 5 of which are EU Member States. Countries like France, Germany and the UK only recognise a same-sex partnership, but not marriage. Especially the Central European states are far more conservative in that respect. Whether we, as Europeans, are actually further than the US is arguable, as there seems to be no constitutional basis for it either, neither in the EU Treaties and the Charter of Fundamental Rights, nor the European Convention on Human Rights. It is, like in the US, a matter for states to resolve.

  2. What about the question was marriage, as defined by law, ever intended to cover this sort of issue? The answer would be a very clear one. No, when most countries defined marriage in their laws, homosexuality was not known, or at the very least kept far away from the public.So if it was never intended to cover this why should it then do so now. These rules were never of a dynamic nature. Is it really necessary for gay people to become ‘married’, surely if a civil partnership attaches the same or roughly the same juridical acts to it than there should be no issue. Yes it may not be called the same but one has to take into account that their situation is different from a ‘traditional marriage’. In such a way they are not second class marriages bur rather of a different kind. Which represent their real situation. And as Tobias point out there are very few counties that put both on a same level. And this cannot be without solid reasons.

  3. Laurent, by saying that homosexuality was not known or very apparent in society when marriage laws were created, are you implying that we should not consider adjusting laws to societal changes?
    We live in an ever changing world and if the law does not correlate with social norms, which are under constant transformation, I wonder how we are ever going to move forward as the civilisation we claim to be.
    Law is supposed to protect individual rights and I don’t think this can be achieved if we leave out minorities, simply because this has been done when a certain law has been created at some point of time. Maybe we should also abolish judicial review and appeals? Just let someone decide and don’t question the legitimacy of the law.
    Also, you said those rules were not of dynamic nature. Legal rules are ambiguous and that’s why we have different means of judicial interpretation filling the gaps of law. Dynamic interpretation of the law actually means that the court takes into account the change in society since a rule has been created and adapts it to new circumstances.
    But hey, maybe we should just take the gays and keep them away from the public and then we won’t have any legal “issues” to deal with.

  4. Dear Dominika,
    You make very valuable points however I am very displeased with the ending. I feel in particular offended by your suggestive language in your last sentence. AS if I ever advocated to put a stigma on gays on keep them away from society in order to solve a legal issue?

    You make the valid point that the correlation between laws and societal changes is inevitable and a bond which cannot be broken. I fully agree but maybe I did not explain myself good enough. When people made the laws they took the definition of marriage as the one set out in canon law and thus making it a legal definition for a union between a man and a woman. This point is very important. Hence why I advocate in my previous post that something like a civil partnership should be allowed for same sex marriages and thus attach the same juridical acts and legal effects to it. This way it still protects a minority and keeps in order the holy character of marriage. Why are gay people so keen on the term marriage. As if they would want to be recognised as being the same as an ‘traditional’ marriage. Whilst in every other way they are different. And in such a way the law should recognise this difference. You just cannot compare a heterosexual marriage to a homosexual one so why do the same in the eyes of the law. And what about those individual that value the sacred character of a heterosexual marriage, should they not be protected? In essence all you do is favouring one minority over a majority or at the very least an equal minority.

  5. My last statement was rather ironic Laurent. I did not mean to offend you by any means, I just wanted highlight the fact that you said gay marriage should not be considered now because it has not been considered previously, which sounded somewhat unreasonable to me seeing how same sex partnerships are not somehting we could possibly irgnore these days.
    If you think homosexual and heterosexual marriages are uncomparable, I respect your viewpoint but I think this is an issue our society has to deal with no matter what. What the law intended at some point of time though,
    should not imply that it is unmodifiable, wherever it may originate from. Up until 1917, canon law still considered anyone above the age of 12 as capable of getting married and I don’t think we would think of
    this being appropriate anymore.Even Pope Benedict made changes to the laws of marriage. Considering how civil partnerships have legal effect, I absolutely see your but I still think that so called civil unions are not the same and that it’s not fair to label the union between two people of the same gender differently, nor does this labelling protect a minority in my eyes.
    Why are gay people so keen on the term marriage? Simply because they should have the right to be treated equally to you and me. If you would not have the right to do something just because you are different, would you just accept it? If you see marriage as sacred and holy, I will have to say that I fully agree with you but let me tell you that some of my gay friends share this viewpoint with you as well.
    Also, giving a minority the same right as a majority does not mean that you favour the minority. Equal does not mean above.

  6. Adi 54, where did that come from? This is a fallacy of red herring? Why commit such a dreadful fallacy when people are having a sound interesting debate. Also you do realise that AIDS was spread amongst people in the congo eating bushmeat of animals who had attract the animal variant of it. It subsequently spread over Africa when belgium started colonising congo, building roads, make movement and facilitating the spread of it. The fact that it was discovered amongst gays is to be attributed to the fortune they had living in a highly developed country with sufficient resources and pure coincidence.

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