Massachusetts was the first state to approve same sex marriage in 2004.

On June 26,
2015 the Supreme Court established that same sex marriage was legal in all 50 states.
Gallup estimates that 61% of same-sex, cohabiting couples in the U.S. are now married,
up from 38% before the Supreme Court and 49% one year ago. Same sex couples can
now take advantage of the same benefits traditionally married couples can.

Same sex married couples can now gift or pass an unlimited amount of assets or
property to each other without needing to use any gift or estate tax exemptions. Before
the law changed any transfer of assets in excess of $15,000 was considered a taxable gift
under gift tax laws.

A spouse with a low social security benefit is able to select his or her spouse’s higher
benefit at the time of that person’s death. If the partners were not married each one of
them could only collect the benefit based on their own salary.

Married same sex couples with retirement accounts have significant

advantages over non-married couples. When one of them dies the surviving
spouse can combine their deceased spouse’s IRA with their own through a tax free
rollover. Non-married domestic partners can be beneficiaries of their partner’s IRA but
they must transfer them to a separate “inherited” IRA which has different, more
complicated rules.

But there are some changes that may not benefit married same sex couples.
If one of them dies the surviving spouse is responsible for paying the
deceased spouse’s medical expenses. If they weren’t married the surviving
partner has no responsibility to pay their partner’s medical expenses. Talent
Marketplace

If one of the partner’s is seriously ill and needs ongoing custodial care the costs for a
nursing home or assisted living residence can be very high. In some states it may cost
$8500-10,000 per month. It is very possible that the ill partner may run out of funds.

Medicaid coverage offered through a partnership between the states and the federal
government is available to those persons with liquid assets of $2000 or less. If the
individual is married the assets of the healthy spouse may be taken into account to
determine Medicaid qualification. And some of the healthy spouse’s assets may be
required to pay for the ill partner’s care. If same sex couples are not married the healthy
spouse has no responsibility to support their partner financially to qualify for Medicaid.

It is important for same sex couples to review their situation to make future financial
plans. But certainly marriage has had a major impact on their planning.
Pro 1
Denying some people the option to marry is
discriminatory and creates a second class of
citizens.
 On July 25, 2014 Miami-Dade County Circuit Court
Judge Sarah Zabel ruled Florida's gay marriage ban
unconstitutional and stated that the ban "serves only to
hurt, to discriminate, to deprive same-sex couples and
their families of equal dignity, to label and treat them
as second-class citizens, and to deem them unworthy
of participation in one of the fundamental institutions
of our society." [105] Christine Gregoire, former
Washington governor, said in Jan. 2012: "Throughout
our history, we have fought discrimination. We have
joined together to recognize equality for racial
minorities, women, people with disabilities,
immigrants... [Legalizing gay marriage] is the right
thing to do and it is time." [139] US Seventh Circuit
Court of Appeals Judge Richard Posner, in overturning
same-sex marriage bans in Wisconsin and Indiana in
Sep. 2014, wrote that the bans "discriminate against a
minority defined by an immutable
characteristic." [40] As well as discrimination based on
sexual orientation, gay marriage bans discriminate
based on one's sex. As explained by David S. Cohen,
JD, Associate Professor at the Drexel University
School of Law, "Imagine three people—Nancy, Bill,
and Tom... Nancy, a woman, can marry Tom, but Bill,
a man, cannot... Nancy can do something (marry Tom)
that Bill cannot, simply because Nancy is a woman and
Bill is a man." [122]
Pro 2
Same-sex couples should have access to the same
benefits enjoyed by heterosexual married couples.
 There are 1,138 benefits, rights and protections
available to married couples in federal law alone,
according to a General Accounting Office assessment
made in 2004. [86] Benefits only available to married
couples include hospital visitation during an illness,
the option of filing a joint tax return to reduce a tax
burden, access to family health coverage, US residency
and family unification for partners from another
country, and bereavement leave and inheritance rights
if a partner dies. [6] [95] Married couples also have
access to protections if the relationship ends, such as
child custody, spousal or child support, and an
equitable division of property. [93] Married couples in
the US armed forces are offered health insurance and
other benefits unavailable to domestic
partners. [125] The Internal Revenue Service (IRS)
and the US Department of Labor also recognize
married couples, for the purpose of granting tax,
retirement and health insurance benefits. [126] The US
federal government does not grant equivalent benefits
to gay couples in civil unions or domestic
partnerships. [153] [154] An Oct. 2, 2009 analysis by
the New York Times estimated that same-sex couples
denied marriage benefits will incur an additional
$41,196 to $467,562 in expenses over their lifetimes
compared with married heterosexual couples. [7] A
Jan. 2014 analysis published by the Atlantic concluded
that unmarried women pay up to one million dollars
more over their lifetimes than married women for
healthcare, taxes, and other expenses. [94]
Pro 3
The concept of “traditional marriage” has changed
over time, and the definition of marriage as always
being between one man and one woman is
historically inaccurate.
 Harvard University historian Nancy F. Cott stated that
until two centuries ago, "monogamous households
were a tiny, tiny portion" of the world's population,
and were found only in "Western Europe and little
settlements in North America." Polygamy has been
widespread throughout history, according to Brown
University political scientist Rose McDermott,
PhD. [110] [106] Interracial marriage was once illegal
in a majority of US states, and was still banned in half
of US states until the 1950s. [108] Official unions
between same-sex couples, indistinguishable from
marriages except for gender, are believed by some
scholars to have been common until the 13th Century
in many countries, with the ceremonies performed in
churches and the union sealed with a kiss between the
two parties. [106]
Pro 4
Gay marriage is protected by the US Constitution’s
commitments to liberty and equality.
 The US Supreme Court ruled 7-2 in the 1974 case
Cleveland Board of Education v. LaFleur that the
"freedom of personal choice in matters of marriage and
family life is one of the liberties protected by the Due
Process Clause." US District Judge Vaughn Walker
wrote on Aug. 4, 2010 that Prop. 8 in California
banning gay marriage was "unconstitutional under
both the Due Process and Equal Protection
Clauses." [41] The Due Process Clause in both the
Fifth and 14th Amendments of the US Constitution
states that no person shall be "deprived of life, liberty,
or property, without due process of law." [111] The
Equal Protection Clause in the 14th Amendment states
that no state shall "deny to any person within its
jurisdiction the equal protection of the laws." [112]
Pro 5
Marriage is an internationally recognized human
right for all people.
 Since 1888 the US Supreme Court has declared 14
times that marriage is a fundamental right for all,
according to the American Foundation for Equal
Rights. [3] Article 16 of the Universal Declaration of
Human Rights guarantees "men and women of full
age, without any limitation due to race, nationality or
religion... the right to marry and to found a family.
They are entitled to equal rights as to marriage, during
marriage and at its dissolution." [103] Amnesty
International states that "this non-discrimination
principle has been interpreted by UN treaty bodies and
numerous inter-governmental human rights bodies as
prohibiting discrimination based on gender or sexual
orientation. Non-discrimination on grounds of sexual
orientation has therefore become an internationally
recognized principle." [104]
Pro 6
Same-sex marriage is a civil right.
 The NAACP (National Association for the
Advancement of Colored People), on May 21, 2012,
named same-sex marriage as "one of the key civil
rights struggles of our time." [61] In 1967 the US
Supreme Court unanimously confirmed in Loving v.
Virginia that marriage is "one of the basic civil rights
of man." [60] The White House website lists same-sex
marriage amongst a selection of civil rights, along with
freedom from employment discrimination, equal pay
for women, and fair sentencing for minority
criminals. [118]
Pro 7
Marriage is not only for procreation, otherwise
infertile couples or couples not wishing to have
children would be prevented from marrying.
 Ability or desire to create offspring has never been a
qualification for marriage. From 1970 through 2012
roughly 30% of all US households were married
couples without children, and in 2012, married couples
without children outnumbered married couples with
children by 9%. [96] 6% of married women aged 15-
44 are infertile, according to the US Centers for
Disease Control and Prevention. [97] In a 2010 Pew
Research Center survey, both married and unmarried
people rated love, commitment, and companionship
higher than having children as "very important"
reasons to get married, and only 44% of unmarried
people and 59% of married people rated having
children as a very important reason. [42] Several US
presidents never had their own biological children,
including George Washington, often referred to as "the
Father of Our Country." [9] [12] As US Supreme
Court Justice Elena Kagan noted, a marriage license
would be granted to a couple in which the man and
woman are both over the age of 55, even though "there
are not a lot of children coming out of that
marriage." [88]
Pro 8
Gay marriages can bring financial gain to federal,
state, and local governments and can help boost the
economy.
 Government revenue from marriage comes from
marriage licenses, higher income taxes in some
circumstances (the so-called "marriage penalty"), and
decreases in costs for state benefit programs. [4] In
July 2012 New York City Mayor Michael Bloomberg
announced that gay marriage had contributed $259
million to the city's economy since the practice became
legal there in July 2011. [43] In 2012, the Williams
Institute at the University of California at Los Angeles
(UCLA) found that in the first five years after
Massachusetts legalized gay marriage in 2004, same-
sex wedding expenditures (such as venue rental,
wedding cakes, etc.) added $111 million to the state's
economy. [114] A 2014 series of reports also by the
Williams Institute estimated that legalizing same-sex
marriage would boost the economies of the 11 US
states studied by a total of $723 million over three
years. [87] The Congressional Budget Office estimated
in 2004 that federally-recognized gay marriage would
cut the budget deficit by around $450 million a
year. [89]
Pro 9
Gay couples make good parents.
 A June 2014 peer-reviewed University of Melbourne
study showed that children raised by same-sex parents
score about six percent higher than the general
population on measures of general health and family
cohesion. [92] A study published in Pediatrics on June
7, 2010 found that children of lesbian mothers were
rated higher than children of heterosexual parents in
social and academic competence and had fewer social
problems. [45] A July 2010 study found that children
of gay fathers were "as well-adjusted as those adopted
by heterosexual parents." [46] As former Washington
Post columnist Ezra Klein wrote, "We should be
begging gay couples to adopt children. We should see
this as a great boon that gay marriage could bring to
kids who need nothing more than two loving
parents." [68] In the United States, around 115,000
children are waiting to be adopted. [44]
Pro 10
Gay marriage bans cause humiliation and
uncertainty for children being raised by same-sex
couples.
 In ruling Texas' gay marriage ban unconstitutional,
San Antonio-based federal judge Orlando Garcia stated
that the ban "causes needless stigmatization and
humiliation for children being raised by the loving
same-sex couples being targeted." [138] Children of
unmarried same-sex couples are denied the stability
that comes with having married parents, including the
guarantee of child support in the case of divorce and an
automatic legal connection to both parents. [107] If no
legal relationship is established, the child cannot be
sure of receiving financial support from the non-
biologically related partner, and is not guaranteed an
inheritance if that partner dies without leaving a
will. [151]
Pro 11
Marriage provides both physical and psychological
health benefits, and banning gay marriage
increases rates of psychological disorders.
 [5] The American Psychological Association,
American Psychiatric Association, and others wrote in
a Sep. 2007 amicus brief, "...allowing same-sex
couples to marry would give them access to the social
support that already facilitates and strengthens
heterosexual marriages, with all of the psychological
and physical health benefits associated with that
support." [47] A 2012 study by researchers from
UCLA, San Francisco State University, and the
University of Massachusetts at Amherst found that
same-sex married couples were "significantly less
distressed than lesbian, gay, and bisexual persons not
in a legally recognized relationship." [113] A 2010
analysis published in the American Journal of Public
Health found that after their states had banned gay
marriage, gay, lesbian and bisexual people suffered a
37% increase in mood disorders, a 42% increase in
alcohol-use disorders, and a 248% increase in
generalized anxiety disorders. [69]
Pro 12
Legalizing gay marriage will not harm the
institution of marriage, and same-sex marriages
may even be more stable than heterosexual
marriages.
 A study published on Apr. 13, 2009 in Social Science
Quarterly found that "[l]aws permitting same-sex
marriage or civil unions have no adverse effect on
marriage, divorce, and abortion rates, [or] the percent
of children born out of wedlock." [48] A Nov. 2011
study by UCLA's Williams Institute reported that the
rate at which legally recognized same-sex couples (in
marriages or civil unions, etc.) end their relationships
is 1.1% on average, while 2% of married different-sex
couples divorce annually. [115] The Executive Board
of the American Anthropological Association found
that more than a century of research has shown "no
support whatsoever for the view that either civilization
or viable social orders depend upon marriage as an
exclusively heterosexual institution. Rather,
anthropological research supports the conclusion that a
vast array of family types, including families built
upon same-sex partnerships, can contribute to stable
and humane societies." [8]
Pro 13
Gay marriage legalization is correlated with lower
divorce rates, while gay marriage bans are
correlated with higher divorce rates.
 Massachusetts, which became the first US state to
legalize gay marriage in 2004, had the lowest divorce
rate in the country in 2008. Its divorce rate declined
21% between 2003 and 2008. Alaska, which altered its
constitution to prohibit gay marriage in 1998, saw a
17.2% increase in its divorce rate over the same
period. The seven states with the highest divorce rates
between 2003 and 2008 all had constitutional
prohibitions to gay marriage. [2]
Pro 14
Legal marriage is a secular institution that should
not be limited by religious objections to same-sex
marriage.
 Religious institutions can decline to marry gay and
lesbian couples if they wish, but they should not
dictate marriage laws for society at large. As explained
by People for the American Way, "As a legal matter,
marriage is a civil institution... Marriage is also a
religious institution, defined differently by different
faiths and congregations. In America, the distinction
can get blurry because states permit clergy to carry out
both religious and civil marriage in a single ceremony.
Religious Right leaders have exploited that confusion
by claiming that granting same-sex couples equal
access to civil marriage would somehow also redefine
the religious institution of marriage... this is grounded
in falsehood and deception." [132] Nancy Cott, PhD,
testified in Perry v. Schwarzenegger that "[c]ivil law
has always been supreme in defining and regulating
marriage." [41]
Pro 15
Many religious leaders and churches support gay
marriage and say it is consistent with scripture.
 Gene Robinson, openly gay former Bishop of the
Episcopal Diocese of New Hampshire, stated in Sep.
2012: "Scripture says where love is, there is God also.
And they [religious people] see that love in our
families, and I think people can't help but be
supportive." [128] Lee Jefferson, Assistant Professor
of Religion at Centre College, wrote that the Bible
makes no mention of same-sex marriage at all, nor
does it make reference to sexual orientation as it is
understood today. [129] Reform Judaism, which
comprises about 80% of the American Jewish
population, endorses same-sex marriage, and the
Central Conference of American Rabbis has supported
gay marriage since 1996. [130] The Episcopal Church
stated in Resolution A095, made in 2006, that it
"oppose[s] any state or federal constitutional
amendment that prohibits same-sex civil marriage or
civil unions." The Presbyterian Church (USA) voted in
June 2014 to allow its pastors to marry same-sex
couples. The United Church of Christ General Synod
voted in July 2005 to affirm "equal marriage rights for
couples regardless of gender." The 1996 General
Assembly of the Unitarian Universalist Association
adopted "a position in support of legal recognition for
marriage between members of the same sex." [119]
[141][142] [143]
Con 1
The institution of marriage has traditionally been
defined as being between a man and a woman.
 In upholding gay marriage bans in Kentucky,
Michigan, Ohio and Tennessee on Nov. 6, 2014, 6th
US District Court of Appeals Judge Jeffrey S. Sutton
wrote that "marriage has long been a social institution
defined by relationships between men and women. So
long defined, the tradition is measured in millennia,
not centuries or decades. So widely shared, the
tradition until recently had been adopted by all
governments and major religions of the
world." [117] In the Oct. 15, 1971 decision Baker v.
Nelson, the Supreme Court of Minnesota found that
"the institution of marriage as a union of man and
woman, uniquely involving the procreation and rearing
of children within a family, is as old as the book of
Genesis." [49] John F. Harvey, MA, STL, late Catholic
priest, wrote in July 2009 that "Throughout the history
of the human race the institution of marriage has been
understood as the complete spiritual and bodily
communion of one man and one woman." [18] [109]
Con 2
Marriage is for procreation and should not be
extended to same-sex couples because they cannot
produce children together.
 Allowing gay marriage would only further shift the
purpose of marriage from producing and raising
children to adult gratification. [19] A California
Supreme Court ruling from 1859 stated that "the first
purpose of matrimony, by the laws of nature and
society, is procreation." [90] Nobel Prize-winning
philosopher Bertrand Russell stated that "it is through
children alone that sexual relations become important
to society, and worthy to be taken cognizance of by a
legal institution." [91] Court papers filed in July 2014
by attorneys defending Arizona's gay marriage ban
stated that "the State regulates marriage for the
primary purpose of channeling potentially procreative
sexual relationships into enduring unions for the sake
of joining children to both their mother and their
father... Same-sex couples can never provide a child
with both her biological mother and her biological
father." Contrary to the pro gay marriage argument that
some different-sex couples cannot have children or
don't want them, even in those cases there is still the
potential to produce children. Seemingly infertile
heterosexual couples sometimes produce children, and
medical advances may allow others to procreate in the
future. Heterosexual couples who do not wish to have
children are still biologically capable of having them,
and may change their minds. [98]
Con 3
Children need both a mother and a father.
 Girls who are raised apart from their fathers are
reportedly at higher risk for early sexual activity and
teenage pregnancy. [52] Children without a mother are
deprived of the emotional security and unique advice
that mothers provide. A 2012 study by Mark Regnerus,
PhD, Associate Professor of Sociology at the
University of Texas at Austin, found that children
raised by parents who had same-sex relationships
suffered more difficulties in life (including sexual
abuse and unemployment in later life) than children
raised by "intact biological famil[ies]." [133] Doug
Mainwaring, the openly gay co-founder of National
Capital Tea Party Patriots, stated that "it became
increasingly apparent to me, even if I found somebody
else exactly like me, who loved my kids as much as I
do, there would still be a gaping hole in their lives
because they need a mom... I don't want to see children
being engineered for same-sex couples where there is
either a mom missing or a dad missing." [53]
Con 4
Legalizing gay marriage could lead down a
“slippery slope,” giving people in polygamous,
incestuous, bestial, and other nontraditional
relationships the right to marry.
 [10] Glen Lavy, JD, senior counsel with the Alliance
Defense Fund, argued in a May 21, 2008 Los Angeles
Times op-ed, "The movement for polygamy and
polyamory is poised to use the successes of same-sex
couples as a springboard for further de-
institutionalizing marriage." [11] In Apr. 2013 Slate
writer Jillian Keenan wrote: "Just like heterosexual
marriage is no better or worse than homosexual
marriage, marriage between two consenting adults is
not inherently more or less 'correct' than marriage
among three (or four, or six) consenting
adults." [71] James C. Dobson, Founder and Chairman
of Focus on the Family, predicted in 2005 that
legalizing same-sex marriage will enable "group
marriage," "marriage between daddies and little girls,"
and "marriage between a man and his donkey." [136]
Con 5
Allowing gay couples to wed could further weaken
the institution of marriage.
 Traditional marriage is already threatened with high
divorce rates (between 40% and 50%), and 40.7% of
babies were born to unmarried mothers in
2012. [50] [51] [116] Former US Senator (R-PA) and
presidential candidate Rick Santorum stated that
"Legalization of gay marriage would further
undermine an institution that is essential to the well-
being of children and our society. Do we need to
confuse future generations of Americans even more
about the role and importance of an institution that is
so critical to the stability of our country?" [137] Ryan
T. Anderson, William E. Simon Fellow in Religion
and a Free Society at The Heritage Foundation, said
"In recent decades, marriage has been weakened by a
revisionist view that is more about adults’ desires than
children’s needs... Redefining marriage to include
same-sex relationships is the culmination of this
revisionism, and it would leave emotional intensity as
the only thing that sets marriage apart from other
bonds." [70]
Con 6
Homosexuality is immoral and unnatural.
 J. Matt Barber, Associate Dean for Online Programs
at Liberty University School of Law, stated that "Every
individual engaged in the homosexual lifestyle, who
has adopted a homosexual identity, they know,
intuitively, that what they're doing is immoral,
unnatural, and self-destructive, yet they thirst for that
affirmation." A 2003 set of guidelines signed by Pope
John Paul II stated: "There are absolutely no grounds
for considering homosexual unions to be in any way
similar or even remotely analogous to God's plan for
marriage and family... Marriage is holy, while
homosexual acts go against the natural moral
law." [147] Former Arkansas governor and Republican
presidential candidate Mike Huckabee stated in Oct.
2014 that gay marriage is "inconsistent with nature and
nature’s law." [148]
Con 7
Gay marriage is contrary to the word of God and is
incompatible with the beliefs, sacred texts, and
traditions of many religious groups.
 The Bible, in Leviticus 18:22, states: "Thou shalt not
lie with mankind, as with womankind: it is
abomination," thus condemning homosexual
relationships. [120] In Islamic tradition, several hadiths
(passages attributed to the Prophet Muhammad)
condemn gay and lesbian relationships, including the
sayings "When a man mounts another man, the throne
of God shakes," and "Sihaq [lesbian sex] of women is
zina [illegitimate sexual intercourse]." [121] The
Catholic Church, United Methodist Church, Southern
Baptist Convention, Church of Jesus Christ of Latter-
day Saints, National Association of Evangelicals, and
American Baptist Churches USA all oppose same-sex
marriage. [119] Two orthodox Jewish groups, the
Orthodox Agudath Israel of America and the Orthodox
Union, also oppose gay marriage, as does mainstream
Islam. [13] [119] According to a July 31, 2003
statement from the Congregation for the Doctrine of
the Faith and approved by Pope John Paul II, marriage
"was established by the Creator with its own nature,
essential properties and purpose. No ideology can
erase from the human spirit the certainty that marriage
exists solely between a man and a
woman…" [54] Pope Benedict stated in Jan. 2012 that
gay marriage threatened "the future of humanity
itself." [145]
Con 8
Legalizing gay marriage often leads to an end to
domestic partnership benefits for gay and straight
couples, which disadvantages couples who choose
not to get married.
 Maryland ended health insurance benefits for new
domestic partnerships after same-sex marriage became
legal in the state in 2013. [124] [135] The state of
Washington automatically converted domestic
partnerships to marriages when they legalized gay
marriage in 2012, providing no option to retain
domestic partnerships or civil unions unless one
partner is at least 62 years old. [134] [123] The US
Defense Department announced in Aug. 2013 that it
would grant health insurance and other benefits to
same-sex married partners of US troops, but that
domestic partners would no longer be granted the same
benefits. [125] The Internal Revenue Service (IRS) and
the US Department of Labor recognized same-sex
married couples for the purpose of granting tax,
retirement, and health insurance benefits after the US
Supreme Court declared part of the Defense of
Marriage Act (DOMA) unconstitutional in 2013, but
they did not include domestic partnerships or civil
unions. [126]
Con 9
Gay marriage will accelerate the assimilation of
gays into mainstream heterosexual culture to the
detriment of the homosexual community.
 The gay community has created its own vibrant
culture. By reducing the differences in opportunities
and experiences between gay and heterosexual people,
this unique culture may cease to exist. Lesbian activist
M.V. Lee Badgett, PhD, Director of the Center for
Public Policy and Administration at the University of
Massachusetts at Amherst, stated that for many gay
activists "marriage means adopting heterosexual forms
of family and giving up distinctively gay family forms
and perhaps even gay and lesbian culture." [14] Paula
Ettelbrick, JD, Professor of Law and Women's Studies,
wrote in 1989, "Marriage runs contrary to two of the
primary goals of the lesbian and gay movement: the
affirmation of gay identity and culture and the
validation of many forms of relationships." [15]
Con 10
Marriage is an outmoded, oppressive institution
that should be weakened, not expanded.
 LGBT (lesbian, gay, bisexual, and transgender)
activist collective Against Equality states that "Gay
marriage apes hetero privilege... [and] increases
economic inequality by perpetuating a system which
deems married beings more worthy of the basics like
health care and economic rights." [84] The leaders of
the Gay Liberation Front in New York said in July
1969, "We expose the institution of marriage as one of
the most insidious and basic sustainers of the system.
The family is the microcosm of oppression." [16] Self-
described queer activist Anders Zanichkowsky stated
in June 2013 that the campaign for gay marriage
"intentionally and maliciously erases and excludes so
many queer people and cultures, particularly trans and
gender non-conforming people, poor queer people, and
queer people in non-traditional families... marriage
thinks non-married people are deviant and not truly
deserving of civil rights." [127]
Con 11
People should not have their tax dollars used to
support something they believe is wrong.
 Peter S. Sprigg, MDiv, Senior Fellow for Policy
Studies at the Family Research Council, said that if
gay marriage were legalized, "[t]axpayers, consumers,
and businesses would be forced to subsidize
homosexual relationships... One of the key arguments
often heard in support of homosexual civil marriage
revolves around all the government 'benefits' that
homosexuals claim they are denied. Many of these
'benefits' involve one thing–taxpayer money that
homosexuals are eager to get their hands
on." [146] Gay marriage would entitle gay couples to
typical marriage benefits including claiming a tax
exemption for a spouse, receiving social security
payments from a deceased spouse, and coverage by a
spouse’s health insurance policy, largely at taxpayers'
expense. On Dec. 17, 2009 the Congressional Budget
Office estimated that the cost to the federal
government of extending employment benefits to
same-sex domestic partners of certain federal
employees (making no mention of additional costs
such as Social Security and inheritance taxes) would
be $596 million in mandatory spending and $302
million in discretionary spending between 2010 and
2019. [37]
Con 12
Marriage is a privilege, not a right.
 The US Constitution contains no explicit right to
marry. [99] The European Court of Human Rights
ruled on June 24, 2010 that the state has a valid interest
in protecting the traditional definition of marriage, and
stated that the Convention for the Protection of Human
Rights and Fundamental Freedoms "enshrined the
traditional concept of marriage as being between a man
and a woman." [101] [102] Society can choose not to
allow same-sex couples to marry, just as it does not
allow a person to marry more than one partner or allow
minors or close relatives to marry. [100] Matthew D.
Staver, JD, Dean of the Liberty University School of
Law, explained: "The unifying characteristics of the
protected classes within the Civil Rights Act of 1964
include (1) a history of longstanding, widespread
discrimination, (2) economic disadvantage, and (3)
immutable characteristics... 'Sexual orientation' does
not meet any of the three objective criteria shared by
the historically protected civil rights categories." [62]
Con 13
Legalizing gay marriage advances the “homosexual
agenda” and unfairly paints opponents as bigots.
 The Illinois Family Institute states that if gay marriage
is legalized, "Children will be taught that
homosexuality is morally equivalent to
heterosexuality... that children do not have any
inherent rights to know and be raised by a mother and
a father... [and] that opposition to the legalization of
'same-sex marriage' was equivalent to opposition to the
legalization of interracial marriage. They will be taught
that opposition to both was motivated by ignorance
and hatred." [85] Lou Sheldon, Founder of the
Traditional Values Coalition, warned of the influence
on children of the "homosexual agenda," writing that
"[o]ur little children are being targeted by the
homosexuals and liberals... To be brainwashed to think
that homosexuality is the moral equivalent of
heterosexuality. We can't let that happen." [150]
Con 14
Civil unions and domestic partnerships can provide
the protections and benefits gay couples need
without changing the definition of marriage.
 Privileges available to couples in civil unions and
domestic partnerships can include health insurance
benefits, inheritance without a will, the ability to file
state taxes jointly, and hospital visitation rights. [155]
[156] 2016 presidential candidate and former Hewlett-
Packard CEO Carly Fiorina stated that civil unions are
adequate as an equivalent to marriage for same-sex
couples: "Benefits are being bestowed to gay couples
[in civil unions]... I believe we need to respect those
who believe that the word marriage has a spiritual
foundation... Why can't we respect and tolerate that
while at the same time saying government cannot
bestow benefits unequally." [157] 43rd US President
George W. Bush expressed his support for same-sex
civil unions while in office: "I don't think we should
deny people rights to a civil union, a legal
arrangement, if that's what a state chooses to do so... I
strongly believe that marriage ought to be defined as
between a union between a man and a woman. Now,
having said that, states ought to be able to have the
right to pass laws that enable people to be able to have
rights like others." [158]

Ten Arguments From Social Science Against Same-Sex Marriage

By Family Research Council

A large and growing body of scientific evidence indicates that the intact, married family is best for children. In
particular, the work of scholars David Popenoe, Linda Waite, Maggie Gallagher, Sara McLanahan, David Blankenhorn,
Paul Amato, and Alan Booth has contributed to this conclusion.

This statement from Sara McLanahan, a sociologist at Princeton University, is representative:

If we were asked to design a system for making sure that children's basic needs were met, we would probably come
up with something quite similar to the two-parent ideal. Such a design, in theory, would not only ensure that
children had access to the time and money of two adults, it also would provide a system of checks and balances that
promoted quality parenting. The fact that both parents have a biological connection to the child would increase the
likelihood that the parents would identify with the child and be willing to sacrifice for that child, and it would reduce
the likelihood that either parent would abuse the child.

Sara McLanahan and Gary Sandefur, Growing Up with a Single Parent: What Hurts, What Helps (Boston: Harvard
University Press, 1994) 38.

The following are ten science-based arguments against same-sex "marriage":

1. Children hunger for their biological parents.

Homosexual couples using in vitro fertilization (IVF) or surrogate mothers deliberately create a class of children who
will live apart from their mother or father. Yale Child Study Center psychiatrist Kyle Pruett reports that children of IVF
often ask their single or lesbian mothers about their fathers, asking their mothers questions like the
following:"Mommy, what did you do with my daddy?" "Can I write him a letter?" "Has he ever seen me?" "Didn't you
like him? Didn't he like me?" Elizabeth Marquardt reports that children of divorce often report similar feelings about
their non-custodial parent, usually the father.

Kyle Pruett, Fatherneed (Broadway Books, 2001) 204.

Elizabeth Marquardt, The Moral and Spiritual Lives of Children of Divorce. Forthcoming.

2. Children need fathers.

If same-sex civil marriage becomes common, most same-sex couples with children would be lesbian couples. This
would mean that we would have yet more children being raised apart from fathers. Among other things, we know
that fathers excel in reducing antisocial behavior and delinquency in boys and sexual activity in girls.

What is fascinating is that fathers exercise a unique social and biological influence on their children. For instance, a
recent study of father absence on girls found that girls who grew up apart from their biological father were much
more likely to experience early puberty and a teen pregnancy than girls who spent their entire childhood in an intact
family. This study, along with David Popenoe's work, suggests that a father's pheromones influence the biological
development of his daughter, that a strong marriage provides a model for girls of what to look for in a man, and
gives them the confidence to resist the sexual entreaties of their boyfriends.

* Ellis, Bruce J., et al., "Does Father Absence Place Daughters at Special Risk for Early Sexual Activity and Teenage
Pregnancy?" Child Development, 74:801-821.

* David Popenoe, Life Without Father (Boston: Harvard University Press, 1999).

3. Children need mothers.

Although homosexual men are less likely to have children than lesbians, homosexual men are and will be raising
children. There will be even more if homosexual civil marriage is legalized. These households deny children a mother.
Among other things, mothers excel in providing children with emotional security and in reading the physical and
emotional cues of infants. Obviously, they also give their daughters unique counsel as they confront the physical,
emotional, and social challenges associated with puberty and adolescence. Stanford psychologist Eleanor MacCoby
summarizes much of this literature in her book, The Two Sexes. See also Steven Rhoads' book, Taking Sex Differences
Seriously.

Eleanor MacCoby, The Two Sexes: Growing Up Apart, Coming Together (Boston: Harvard, 1998).

Steven Rhoads, Taking Sex Differences Seriously (Encounter Books, 2004).

4. Evidence on parenting by same-sex couples is inadequate.

A number of leading professional associations have asserted that there are "no differences" between children raised
by homosexuals and those raised by heterosexuals. But the research in this area is quite preliminary; most of the
studies are done by advocates and most suffer from serious methodological problems. Sociologist Steven Nock of
the University of Virginia, who is agnostic on the issue of same-sex civil marriage, offered this review of the literature
on gay parenting as an expert witness for a Canadian court considering legalization of same-sex civil marriage:

Through this analysis I draw my conclusions that 1) all of the articles I reviewed contained at least one fatal flaw of
design or execution; and 2) not a single one of those studies was conducted according to general accepted standards
of scientific research.

This is not exactly the kind of social scientific evidence you would want to launch a major family experiment.

Steven Nock, affidavit to the Ontario Superior Court of Justice regarding Hedy Halpern et al. University of Virginia
Sociology Department (2001).

5. Evidence suggests children raised by homosexuals are more likely to experience gender and sexual disorders.

Although the evidence on child outcomes is sketchy, it does suggest that children raised by lesbians or homosexual
men are more likely to experience gender and sexual disorders. Judith Stacey-- a sociologist and an advocate for
same-sex civil marriage--reviewed the literature on child outcomes and found the following: "lesbian parenting may
free daughters and sons from a broad but uneven range of traditional gender prescriptions." Her conclusion here is
based on studies that show that sons of lesbians are less masculine and that daughters of lesbians are more
masculine.

She also found that a "significantly greater proportion of young adult children raised by lesbian mothers than those
raised by heterosexual mothers ... reported having a homoerotic relationship." Stacey also observes that children of
lesbians are more likely to report homoerotic attractions.

Her review must be viewed judiciously, given the methodological flaws detailed by Professor Nock in the literature as
a whole. Nevertheless, theses studies give some credence to conservative concerns about the effects of homosexual
parenting.

Judith Stacey and Timothy Biblarz, "(How) Does the Sexual Orientation of Parents Matter?" American Sociological
Review 66: 159-183. See especially 168-171.

6. Same-sex "marriage" would undercut the norm of sexual fidelity within marriage.

One of the biggest threats that same-sex "marriage" poses to marriage is that it would probably undercut the norm
of sexual fidelity in marriage. In the first edition of his book in defense of same-sex marriage, Virtually Normal,
homosexual commentator Andrew Sullivan wrote: "There is more likely to be greater understanding of the need for
extramarital outlets between two men than between a man and a woman." Of course, this line of thinking--were it
incorporated into marriage and telegraphed to the public in sitcoms, magazines, and other mass media--would do
enormous harm to the norm of sexual fidelity in marriage.

One recent study of civil unions and marriages in Vermont suggests this is a very real concern. More than 79 percent
of heterosexual married men and women, along with lesbians in civil unions, reported that they strongly valued
sexual fidelity. Only about 50 percent of gay men in civil unions valued sexual fidelity.

Esther Rothblum and Sondra Solomon, Civil Unions in the State of Vermont: A Report on the First Year. University of
Vermont Department of Psychology, 2003.

David McWhirter and Andrew Mattison, The Male Couple (Prentice Hall, 1984) 252.

7. Same-sex "marriage" would further isolate marriage from its procreative purpose.

Traditionally, marriage and procreation have been tightly connected to one another. Indeed, from a sociological
perspective, the primary purpose that marriage serves is to secure a mother and father for each child who is born
into a society. Now, however, many Westerners see marriage in primarily emotional terms.
Among other things, the danger with this mentality is that it fosters an anti-natalist mindset that fuels population
decline, which in turn puts tremendous social, political, and economic strains on the larger society. Same-sex
marriage would only further undercut the procreative norm long associated with marriage insofar as it establishes
that there is no necessary link between procreation and marriage.

This was spelled out in the Goodridge decision in Massachusetts, where the majority opinion dismissed the
procreative meaning of marriage. It is no accident that the countries that have legalized or are considering legalizing
same-sex marriage have some of the lowest fertility rates in the world. For instance, the Netherlands, Sweden, and
Canada have birthrates that hover around 1.6 children per woman--well below the replacement fertility rate of 2.1.

For national fertility rates, see: http://www.cia.gov/cia/publications/factbook/geos/sw.html

For more on the growing disconnect between marriage and procreation,

see: http://marriage.rutgers.edu/Publications/SOOU/SOOU2003.pdf

8. Same-sex "marriage" would further diminish the expectation of paternal commitment.

The divorce and sexual revolutions of the last four decades have seriously undercut the norm that couples should get
and stay married if they intend to have children, are expecting a child, or already have children. Political scientist
James Q. Wilson reports that the introduction of no-fault divorce further destabilized marriage by weakening the
legal and cultural meaning of the marriage contract. George Akerlof, a Nobel laureate and an economist, found that
the widespread availability of contraception and abortion in the 1960s and 1970s, and the sexual revolution they
enabled, made it easier for men to abandon women they got pregnant, since they could always blame their
girlfriends for not using contraception or procuring an abortion.

It is plausible to suspect that legal recognition of homosexual civil marriage would have similar consequences for the
institution of marriage; that is, it would further destabilize the norm that adults should sacrifice to get and stay
married for the sake of their children. Why? Same-sex civil marriage would institutionalize the idea that children do
not need both their mother and their father.

This would be particularly important for men, who are more likely to abandon their children. Homosexual civil
marriage would make it even easier than it already is for men to rationalize their abandonment of their children.
After all, they could tell themselves, our society, which affirms lesbian couples raising children, believes that children
do not need a father. So, they might tell themselves, I do not need to marry or stay married to the mother of my
children.

James Q. Wilson, The Marriage Problem. (Perennial, 2003) 175-177.

George A. Akerlof, Janet L. Yellen, and Michael L. Katz, "An Analysis of Out-of-Wedlock Childbearing in the United
States." Quarterly Journal of Economics CXI: 277-317.

9. Marriages thrive when spouses specialize in gender-typical roles.

If same-sex civil marriage is institutionalized, our society would take yet another step down the road of de-gendering
marriage. There would be more use of gender-neutral language like "partners" and--more importantly--more social
and cultural pressures to neuter our thinking and our behaviors in marriage.

But marriages typically thrive when spouses specialize in gender-typical ways and are attentive to the gendered
needs and aspirations of their husband or wife. For instance, women are happier when their husband earns the lion's
share of the household income. Likewise, couples are less likely to divorce when the wife concentrates on
childrearing and the husband concentrates on breadwinning, as University of Virginia psychologist Mavis
Hetherington admits.

E. Mavis Hetherington and John Kelly, For Better or For Worse. (W.W. Norton and Co., 2002) 31.

Steven Rhoads, Taking Sex Differences Seriously (Encounter Books, 2004).

10. Women and marriage domesticate men.

Men who are married earn more, work harder, drink less, live longer, spend more time attending religious services,
and are more sexually faithful. They also see their testosterone levels drop, especially when they have children in the
home.

If the distinctive sexual patterns of "committed" gay couples are any indication (see above), it is unlikely that
homosexual marriage would domesticate men in the way that heterosexual marriage does. It is also extremely
unlikely that the biological effects of heterosexual marriage on men would also be found in homosexual marriage.
Thus, gay activists who argue that same-sex civil marriage will domesticate gay men are, in all likelihood, clinging to a
foolish hope. This foolish hope does not justify yet another effort to meddle with marriage.

Why is same-sex marriage important?

The Equality Network is strongly of the opinion that the law should allow same-sex marriages, and, more generally,
that marriage should be available to couples regardless of their genders. In our 2009/10 survey of 427 LGBT people,
85% said that this change is needed. 53% said that implementing this change is a high priority, and a further 32% said
that it is a priority. From more informal qualitative consultation, we believe that, if anything, those figures
underestimate the proportion of LGBT people who consider that this change is required. At our five same-sex
marriage consultation events around the country in November 2011, every one of the 150 people present agreed
that samesex marriage should be introduced. In our survey and our consultation events we asked people why
marriage should be opened up to same-sex couples. People gave a range of reasons, with the following main
themes. Segregation is not equality Even though the legal rights and responsibilities of civil partnership and marriage
are almost identical, the two are not perceived as of equal status and value. Civil partnership is seen as a legal
contract, while marriage is seen by many as the gold standard for celebrating the joy of love and commitment.
Marriage is very widely understood for its symbolism and its personal, community, and in some cases, religious
significance. Very few people propose to their partner by asking “Will you civil partner me?” – civil partnership just
does not have the same meaning. Civil partnership was invented specifically to deny same-sex couples access to
marriage, and is seen by many same-sex couples as a second-class status. Put simply, equality means making the
same choices available to all. If mixed-race couples were denied the opportunity to marry, and instead offered civil
partnership with the same legal effects, that would readily be seen as unacceptable racist discrimination. The ban on
same-sex couples marrying is equally unacceptable. 2 In 2008, the Connecticut Supreme Court considered whether
that state’s introduction of civil unions (a civil partnership type status for same-sex couples with identical state-level
legal effects to marriage) was consistent with the state constitutional equality guarantee. The Court concluded, “in
the light of the history of pernicious discrimination faced by gay men and lesbians, and because the institution of
marriage carries with it a status and significance that the newly created classification of civil unions does not
embody, the segregation of heterosexual and homosexual couples into separate institutions constitutes a cognizable
harm.” The Court ordered that marriage itself be opened up to same-sex couples. The unfair and arbitrary nature of
the current law is particularly clear when considering the situation of bisexual people. A bisexual person may fall in
love with someone of the same gender or of the opposite gender – apart from the gender of the person, there is no
difference in the relationship. The law directs the person to civil partnership or to marriage, with no choice,
depending only on the gender of their partner. Reducing discrimination and its effects Although the legal effects of
marriage and civil partnership are almost identical, in our 2009/10 survey, of 103 people in civil partnerships, 58%
said they had not been given the same rights and respect that a married couple would get. That rose to 64% for
women civil partners. Examples included people being referred to as “not really married”; banks not understanding
why civil partners wanted a joint account; employers refusing to change Miss to Mrs on documentation; hospitals
refusing the recognise the civil partner as next of kin; forms not including civil partnership status options alongside
marital status. These kinds of discrimination and less favourable treatment are in part due to an ignorance of what
civil partnership is, and are in part due to prejudice for which the separate status of civil partnership provides an
excuse. The introduction of same-sex marriage would not eliminate this discrimination against same-sex married
couples, but it would remove the problem of ignorance, and remove one of the excuses for prejudice. Furthermore,
the segregated status of civil partnership, including the separate terminology, in itself defines same-sex couples as
“other”, and thereby promotes stigmatisation, prejudice and discrimination against 3 LGBT people. This includes
homophobia, biphobia and transphobia in forms including bullying and hate crime. The introduction of same-sex
marriage would help reduce these forms of prejudice against LGBT people because it would eliminate the official
“otherness” status of LGBT people. It would also help to reduce prejudice and discrimination more widely, because it
would be a clear public demonstration of Scotland’s refusal to accept discrimination, and Scotland’s embrace of
diversity, equality and freedom. By reducing prejudice and discrimination, the introduction of same-sex marriage will
enhance the safety, self-esteem, health and wellbeing of LGBT people in Scotland. Discrimination against same-sex
couples also affects their children. We estimate from our surveys that around 20% of same-sex couples have
children, whether from a previous mixed-sex relationship, through adoption, or through assisted conception.
Contrary to oft-repeated claims, research shows that children do as well with two parents of the same sex as with
two parents of opposite sex [‘How does the gender of parents matter?’, Biblarz and Stacey, Journal of Marriage and
Family, Feb 2010]. The introduction of same-sex marriage will benefit the children of samesex couples by reducing
prejudice in the ways described above. Discrimination in the law Although the domestic legal effects of civil
partnership and marriage are almost identical, there is a significant difference in terms of international recognition.
A Scottish same-sex marriage would be recognised in any other country which allowed same-sex marriage, because
of the wellestablished international law framework for recognising marriage. That is not the case for international
recognition of civil partnership, which is more confused and irregular. A specific form of legal discrimination caused
by the ban on same-sex marriage is discrimination against married transsexual people in the provision of legal
gender recognition. 4 Freedom of religion and belief Same sex couples cannot have their legal relationship
solemnised by a humanist or religious celebrant. In our 2009/10 survey of 429 LGBT people, 22% said that they
would consider a humanist marriage if it was available, and 22% said that they would consider a religious marriage.
Celebrants of the Humanist Society of Scotland solemnise marriages (under the religious marriage law) and very
much want to be able to solemnise same-sex marriage. The Unitarians, Quakers, Metropolitan Community Church,
Liberal Jewish community, Pagan Federation of Scotland, amongst others, also solemnise marriages and want to
solemnise same-sex marriages. Freedom of religion and belief means respecting the right of those bodies that wish
to solemnise same-sex marriages, and the right of those couples who wish a religious same-sex marriage to be
solemnised by those bodies. It also means respecting the right of religious bodies that disagree with same-sex
marriage, to decline to conduct them. Neither set of religious bodies (those that agree, and those that disagree with
same-sex marriage) has the right to impose their views about this issue on the other set. Marriage is not owned by
any religious body (and in fact predates any current religious faith), and no religious body should have a veto over
the arrangements for marriage. Wider effects of same-sex marriage Civil partnerships are currently running at about
2% of the rate of (nontourist) marriages in Scotland – approximately 500 civil partnerships per year now; and 3500 in
total. The future number of same-sex marriages could be a little higher because of greater demand. The introduction
of same-sex marriage will have no effect on the existing or future marriage of any mixed-sex couple – there is not a
finite limited number of marriages available. Rather it could be argued that introducing same-sex marriage would
strengthen the institution of marriage, by enriching it, and demonstrating that it is a modern, relevant and equitable
institution, desired and valued across Scotland’s diverse population. The introduction of same-sex marriage will be in
line with Scotland’s ideals of equality, diversity, tolerance, respect, freedom, dignity and 5 fairness. By publicly
embodying those values, the introduction of samesex marriage will also further strengthen those values in Scottish
society. The legal definition and effects of marriage have changed enormously over the past couple of hundred
years, up to and including the major changes to divorce law in the Family Law (Scotland) Act 2006. The introduction
of same-sex marriage, in contrast, will not change at all the law applying to mixed-sex marriages, and is therefore a
minor alteration compared to what has gone before. Public opinion The 2010 Scottish Social Attitudes Survey asked
“Do you agree or disagree that gay and lesbian couples should be allowed to marry?” 61% agreed, while only 19%
disagreed. Survey respondents were asked their religious denomination, so the results may be analysed by religious
denomination. 54% of Catholics agreed with same-sex marriage, with 21% disagreeing; 50% of Presbyterians agreed,
with 25% disagreeing. Amongst those of no religion, 72% agreed with same-sex marriage and 12% disagreed.
Support for same-sex marriage is particularly strong amongst younger people, with 77% of under 25s in support as
long ago as 2006 (24% more than the population as a whole). The introduction of same-sex marriage has particular
resonance for young people, who see it as being about Scotland looking forward as a modern 21st century country.
Not surprisingly, given public opinion, there is wide support across political parties for introducing same-sex
marriage. The Scottish Liberal Democrats and Scottish Green Party included a pledge to introduce same-sex marriage
in their 2011 Holyrood manifestos. The SNP and Labour Party included a pledge to consult on the issue. International
context Nine western European countries surrounding us have already introduced same-sex marriage: Iceland,
Norway, Sweden, Denmark, the Netherlands, Belgium, France, Spain and Portugal. Needless to say, there is no
evidence from any of those countries of any of the negative consequences that some of the opponents of same-sex
marriage suggest would follow [see ‘When gay people get married’, MV Lee 6 Badgett, New York University Press
2009]. Scotland is being left behind on this key equality issue. Canada, New Zealand, South Africa, Argentina,
Uruguay, Brazil, and a number of US and Mexican states have also introduced same-sex marriage, and the issue is
under active consideration in other countries such as Australia and Luxembourg. Scotland’s international reputation
with key partners will be enhanced by the introduction of same-sex marriage. Scotland (and the UK) seek to promote
equality and human rights internationally, and to do this effectively we need to ensure full respect for equality and
human rights at home. This change is one whose time has come – future generations will look back with surprise
that the law ever prevented same-sex couples from marrying.

Marriage is both ubiquitous and central. All across our country, in every region, every social class,
every race and ethnicity, every religion or non-religion, people get married. For many if not most
people, moreover, marriage is not a trivial matter. It is a key to the pursuit of happiness, something
people aspire to—and keep aspiring to, again and again, even when their experience has been far
from happy. To be told “You cannot get married” is thus to be excluded from one of the defining
rituals of the American life cycle.

The keys to the kingdom of the married might have been held only by private citizens—religious
bodies and their leaders, families, other parts of civil society. So it has been in many societies
throughout history. In the United States, however, as in most modern nations, government holds
those keys. Even if people have been married by their church or religious group, they are not
married in the sense that really counts for social and political purposes unless they have been
granted a marriage license by the state. Unlike private actors, however, the state doesn’t have
complete freedom to decide who may and may not marry. The state’s involvement raises
fundamental issues about equality of political and civic standing.

Same-sex marriage is currently one of the most divisive political issues in our nation. In November
2008, Californians passed Proposition 8, a referendum that removed the right to marry from same-
sex couples who had been granted that right by the courts. This result has been seen by the
same-sex community as deeply degrading. More recently, Iowa and Vermont have legalized
same-sex marriage, the former through judicial interpretation of the state constitution, the latter
through legislation. Analyzing this issue will help us understand what is happening in our country,
and where we might go from here.

Before we approach the issue of same-sex marriage, we must define marriage. But marriage, it
soon becomes evident, is no single thing. It is plural in both content and meaning. The institution
of marriage houses and supports several distinct aspects of human life: sexual relations,
friendship and companionship, love, conversation, procreation and child-rearing, mutual
responsibility. Marriages can exist without each of these. (We have always granted marriage
licenses to sterile people, people too old to have children, irresponsible people, and people
incapable of love and friendship. Impotence, lack of interest in sex, and refusal to allow intercourse
may count as grounds for divorce, but they don’t preclude marriage.) Marriages can exist even in
cases where none of these is present, though such marriages are probably unhappy. Each of
these important aspects of human life, in turn, can exist outside of marriage, and they can even
exist all together outside of marriage, as is evident from the fact that many unmarried couples live
lives of intimacy, friendship, and mutual responsibility, and have and raise children. Nonetheless,
when people ask themselves what the content of marriage is, they typically think of this cluster of
things.

Nor is the meaning of marriage single. Marriage has, first, a civil rights aspect. Married people get
a lot of government benefits that the unmarried usually do not get: favorable treatment in tax,
inheritance, and insurance status; immigration rights; rights in adoption and custody; decisional
and visitation rights in health care and burial; the spousal privilege exemption when giving
testimony in court; and yet others.

Marriage has, second, an expressive aspect. When people get married, they typically make a
statement of love and commitment in front of witnesses. Most people who get married view that
statement as a very important part of their lives. Being able to make it, and to make it freely (not
under duress) is taken to be definitive of adult human freedom. The statement made by the
marrying couple is usually seen as involving an answering statement on the part of society: we
declare our love and commitment, and society, in response, recognizes and dignifies that
commitment.

Marriage has, finally, a religious aspect. For many people, a marriage is not complete unless it has
been solemnized by the relevant authorities in their religion, according to the rules of the religion.

Government plays a key role in all three aspects of marriage. It confers and administers benefits. It
seems, at least, to operate as an agent of recognition or the granting of dignity. And it forms
alliances with religious bodies. Clergy are always among those entitled to perform legally binding
marriages. Religions may refuse to marry people who are eligible for state marriage and they may
also agree to marry people who are ineligible for state marriage. But much of the officially
sanctioned marrying currently done in the United States is done on religious premises by religious
personnel. What they are solemnizing (when there is a license granted by the state) is, however,
not only a religious ritual, but also a public rite of passage, the entry into a privileged civic status.

To get this privileged treatment under law people do not have to show that they are good people.
Convicted felons, divorced parents who fail to pay child support, people with a record of domestic
violence or emotional abuse, delinquent taxpayers, drug abusers, rapists, murderers, racists, anti-
Semites, other bigots, all can marry if they choose, and indeed are held to have a fundamental
constitutional right to do so—so long as they want to marry someone of the opposite sex. Although
some religions urge premarital counseling and refuse to marry people who seem ill-prepared for
marriage, the state does not turn such people away. The most casual whim may become a
marriage with no impediment but for the time it takes to get a license. Nor do people even have to
lead a sexual lifestyle of the type the majority prefers in order to get married. Pedophiles, sadists,
masochists, sodomites, transsexuals—all can get married by the state, so long as they marry
someone of the opposite sex.

Given all this, it seems odd to suggest that in marrying people the state affirmatively expresses its
approval or confers dignity. There is indeed something odd about the mixture of casualness and
solemnity with which the state behaves as a marrying agent. Nonetheless, it seems to most
people that the state, by giving a marriage license, expresses approval, and, by withholding it,
disapproval.
WHAT IS the same-sex marriage debate about? It is not about whether same-sex relationships
can involve the content of marriage: few would deny that gays and lesbians are capable of
friendship, intimacy, “meet and happy conversation,” and mutual responsibility, nor that they can
have and raise children (whether their own from a previous marriage, children created within their
relationship by surrogacy or artificial insemination, or adopted children). Certainly none would
deny that gays and lesbians are capable of sexual intimacy.
Nor is the debate, at least currently, about the civil aspects of marriage: we are moving toward a
consensus that same-sex couples and opposite-sex couples ought to enjoy equal civil rights. The
leaders of both major political parties appeared to endorse this position during the 2008
presidential campaign, although only a handful of states have legalized civil unions with material
privileges equivalent to those of marriage.

Finally, the debate is not about the religious aspects of marriage. Most of the major religions have
their own internal debates, frequently heated, over the status of same-sex unions. Some
denominations—Unitarian Universalism, the United Church of Christ, and Reform and
Conservative Judaism—have endorsed marriage for same-sex couples. Others have taken a
friendly position toward these unions. Mainline Protestant denominations are divided on the issue,
although some have taken negative positions. American Roman Catholics, both lay and clergy,
are divided, although the church hierarchy is strongly opposed. Still other denominations and
religions (Southern Baptists, the Church of Jesus Christ of Latter-day Saints) seem to be strongly
opposed collectively. There is no single “religious” position on these unions in America today, but
the heat of those debates is, typically, denominational; heat does not spill over into the public
realm. Under any state of the law, religions would be free to marry or not marry same-sex couples.

The public debate, instead, is primarily about the expressive aspects of marriage. It is here that
the difference between civil unions and marriage resides, and it is this aspect that is at issue when
same-sex couples see the compromise offer of civil unions as stigmatizing and degrading.

The expressive dimension of marriage raises several distinct questions. First, assuming that
granting a marriage license expresses a type of public approval, should the state be in the
business of expressing favor for, or dignifying, some unions rather than others? Are there any
good public reasons for the state to be in the marriage business at all, rather than the civil union
business? Second, if there are good reasons, what are the arguments for and against admitting
same-sex couples to that status, and how should we think about them?

Myth of the Golden Age

WHEN PEOPLE talk about the institution of marriage, they often wax nostalgic. They think, and
often say, that until very recently marriage was a lifelong commitment by one man and one
woman, sanctified by God and the state, for the purposes of companionship and the rearing of
children. People lived by those rules and were happy. Typical, if somewhat rhetorical, is this
statement by Senator Robert Byrd of West Virginia during the debates over the “Defense of
Marriage” Act:
Mr. President, throughout the annals of human experience, in dozens of civilizations and cultures
of varying value systems, humanity has discovered that the permanent relationship between men
and women is a keystone to the stability, strength, and health of human society—a relationship
worthy of legal recognition and judicial protection.
We used to live in that golden age of marital purity. Now, the story goes, things are falling apart.
Divorce is ubiquitous. Children are growing up without sufficient guidance, support, and love, as
adults live for selfish pleasure alone. We need to come to our senses and return to the rules that
used to make us all happy.

Like most Golden Age myths, this one contains a core of truth: commitment and responsibility are
under strain in our culture, and too many children are indeed growing up without enough economic
or emotional support. We can’t think well about how to solve this problem, however, unless we first
recognize the flaws in the mythic depiction of our own past. Like all fantasies of purity, this one
masks a reality that is far more varied and complex.
To begin with, Byrd’s idea that lifelong monogamous marriage has been the norm throughout
human history is just mistaken. Many societies have embraced various forms of polygamy,
informal or common-law marriage, and sequential monogamy. People who base their ethical
norms on the Bible too rarely take note of the fact that the society depicted in the Old Testament is
polygamous.

In many other ancient societies, and some modern ones, sex outside marriage was, or is, a
routine matter: in ancient Greece, for example, married men routinely had socially approved
sexual relationships with prostitutes (male and female) and, with numerous restrictions, younger
male citizens. One reason for this custom was that women were secluded and uneducated, thus
not able to share a man’s political and intellectual aspirations. If we turn to republican Rome, a
society more like our own in basing marriage on an ideal of love and companionship, we find that
this very ideal gave rise to widespread divorce, as both women and men sought a partner with
whom they could be happy and share a common life. We hardly find a major Roman figure, male
or female, who did not marry at least twice. Moreover, Roman marriages were typically not
monogamous, at least on the side of the male, who was expected to have sexual relations with
both males and females of lower status (slaves, prostitutes). Even if wives at times protested, they
understood the practice as typical and ubiquitous. These Romans are often admired (and rightly
so, I think) as good citizens, people who believed in civic virtue and tried hard to run a government
based on that commitment. Certainly for the founders of the United States the Roman Republic
was a key source of both political norms and personal heroes. And yet these heroes did not live in
a marital Eden.

In fact, there is no better antidote to the myth of marital purity than to read Cicero’s account of the
unhappy marriage of his brother Quintus to Pomponia Attica, the sister of his best friend, Atticus.
Through his narrative (however biased in his brother’s favor) we get a glimpse of something so
familiar that it is difficult to believe it all happened around 50 B.C.E. Cicero is out in the country, on
one of his estates, and his brother has (it seems) dragged his unwilling wife away from the city to
spend a week on the farm—with a brother-in-law who doesn’t like her and who, despite his
undoubted greatness, is more than a little self-obsessed:
When we arrived there Quintus said in the kindest way, “Pomponia, will you ask the women in…?”
Both what he said and his intention and manner were perfectly pleasant, at least it seemed so to
me. Pomponia however answered in our hearing, “I am a guest here myself.”… Quintus said to
me, “There! This is the sort of thing I have to put up with every day.”…I myself was quite shocked.
Her words and manner were so gratuitously rude. [They all go in to lunch, except for Pomponia,
who goes straight to her room; Quintus has some food sent up to her, which she refuses.] In a
word, I felt my brother could not have been more forbearing nor your sister ruder… [The following
day, Quintus has a talk with his brother.] He told me that Pomponia had refused to sleep with him,
and that her attitude when he left the house was just as I had seen it the day before. Well, you can
tell her for me that her whole conduct was lacking in sympathy.
The marriage lasted six more unhappy years and then ended in divorce.

The shock of seeing our own face in the mirror of Cicero’s intimate narrative reminds us that
human beings always have a hard time sustaining love and even friendship; that bad temper,
incompatibility, and divergent desires are no invention of the sexual revolution. Certainly they are
not caused by the recognition of same-sex marriage. We’ve always lived in a postlapsarian world.

The rise of divorce in the modern era, moreover, was spurred not by a hatred of marriage but, far
more, by a high conception of what marriage ought to be. It’s not just that people began to think
that women had a right to divorce on grounds of bodily cruelty, and that divorce of that sort was a
good thing. It’s also that Christians began insisting—just like those ancient Romans—that
marriage was about much more than procreation and sexual relations. John Milton’s famous
defense of divorce on grounds of incompatibility emphasizes “meet and happy conversation” as
the central goal of marriage and notes that marriage ought to fulfill not simply bodily drives but also
the “intellectual and innocent desire” that leads people to want to talk a lot to each other. People
are entitled to demand this from their marriages, he argues, and entitled to divorce if they do not
find it. If we adopt Milton’s view, we should not see divorce as expressing (necessarily) a falling
away from high moral ideals but rather an unwillingness to put up with a relationship that does not
fulfill, or at least seriously pursue, high ideals.

In our own nation, as historians of marriage emphasize, a social norm of monogamous marriage
was salient, from colonial times onward. The norm, however, like most norms in all times and
places, was not the same as the reality. Studying the reality of marital discord and separation is
very difficult, because many if not most broken marriages were not formally terminated by divorce.
Given that divorce, until rather recently, was hard to obtain, and given that America offered so
much space for relocation and the reinvention of self, many individuals, both male and female,
simply moved away and started life somewhere else. A man who showed up with a “wife” in tow
was not likely to encounter a background check to find out whether he had ever been legally
divorced from a former spouse. A woman who arrived calling herself “the Widow Jones” would not
be asked to show her husband’s death certificate before she could form a new relationship and
marry. The cases of separation that did end up in court were the tip of a vast, uncharted iceberg.
If, as historian Hendrik Hartog concludes about the nineteenth century, “Marital mobility marked
American legal and constitutional life,” it marked, far more, the daily lives of Americans who did not
litigate their separations.

Insofar as monogamy was reality, we should never forget that it rested on the disenfranchisement
of women. Indeed, the rise of divorce in recent years is probably connected to women’s social and
political empowerment more than to any other factor. When women had no rights, no marketable
skills, and hence no exit options, they often had to put up with bad marriages, with adultery,
neglect, even with domestic violence. When women are able to leave, they demand a better deal.
This simple economic explanation for the rise of divorce—combined with Milton’s emphasis on
people’s need for emotional attunement and conversation—is much more powerful than the idea
of a fall from ethical purity in explaining how we’ve moved from where we were to where we are
today. But if such factors are salient, denial of marriage to same-sex couples is hardly the way to
address them

Throughout the nineteenth and early twentieth centuries, a distinctive feature of American
marriage was the strategic use of federalism. Marriage laws have always been state laws (despite
recurrent attempts to legislate a national law of marriage and divorce). But states in the United
States have typically used that power to compete with one another, and marriage quickly became
a scene of competition. Long before Nevada became famous as a divorce haven, with its short
residency requirement, other states assumed that role. For quite a stretch of time, Indiana
(surprisingly) was the divorce haven for couples fleeing the strict requirements of states such as
New York (one of the strictest until a few decades ago) and Wisconsin. The reasons why a state
liberalized its laws were complex, but at least some of them were economic: while couples lived
out the residency requirement, they would spend money in the state. In short, as Hartog points
out, marriage laws “became public packages of goods and services that competed against the
public goods of other jurisdictions for the loyalty and the tax dollars of a mobile citizenry.”

What we’re seeing today, as five states (Massachusetts, Connecticut, Iowa, Vermont, and, briefly,
California) have legalized same-sex marriage, as others (California, and Vermont and Connecticut
before their legalization of same-sex marriage) have offered civil unions with marriage-like
benefits, and yet others (New York) have announced that, although they will not perform same-sex
marriages themselves, they will recognize those legally contracted in other jurisdictions, is the
same sort of competitive process—with, however, one important difference. The federal Defense
of Marriage Act has made it clear that states need not give legal recognition to marriages legally
contracted elsewhere. That was not the case with competing divorce regimes: once legally
divorced in any other U. S. state, the parties were considered divorced in their own.
But the non-recognition faced by same-sex couples does have a major historical precedent. States
that had laws against miscegenation refused to recognize marriages between blacks and whites
legally contracted elsewhere, and even criminalized those marriages. The Supreme Court case
that overturned the anti-miscegenation laws, Loving v. Virginia, focused on this issue. Mildred
Jeter (African American) and Richard Loving (white) got married in Washington, D. C., in 1958.
Their marriage was not recognized as legal in their home state of Virginia. When they returned,
there they were arrested in the middle of the night in their own bedroom. Their marriage certificate
was hanging on the wall over their bed. The state prosecuted them, because interracial marriage
was a felony in Virginia, and they were convicted. The judge then told them either to leave the
state for twenty-five years or to spend one year in jail. They left, but began the litigation that led to
the landmark 1967 decision.

In 2007, on the fortieth anniversary of that decision, Jeter Loving issued a rare public statement,
saying that she saw the struggle she and her late husband waged as similar to the struggle of
same-sex couples today:
My generation was bitterly divided over something that should have been so clear and right. The
majority believed…that it was God’s plan to keep people apart, and that government should
discriminate against people in love. But…[t]he older generation’s fears and prejudices have given
way, and today’s young people realize that if someone loves someone they have a right to marry.
Surrounded as I am now by wonderful children and grandchildren, not a day goes by that I don’t
think of Richard and our love, our right to marry, and how much it meant to me to have that
freedom to marry the person precious to me, even if others thought he was the “wrong kind of
person” for me to marry. I believe all Americans, no matter their race, no matter their sex, no
matter their sexual orientation, should have that same freedom to marry.
The politics of humanity seems to require us to agree with her. Let’s consider, however, the
arguments on the other side.

Panic Over Same-Sex Marriage

AS WE do that, we need to keep two questions firmly in mind. First, does each argument really
justify legal restriction of same-sex marriage or only some peoples’ attitudes of moral and religious
disapproval? We live in a country in which people have a wide range of different religious beliefs,
and we agree in respecting the space within which people pursue those beliefs. We do not,
however, agree that these beliefs, by themselves, are sufficient grounds for legal regulation.
Typically, we understand that some beliefs (including some but not all moral commitments) can
generate public arguments that bear on the lives of all citizens in a decent society, while others
generate only intra-religious arguments. Thus, observant Jews abhor the eating of pork, but few if
any would think that this religiously grounded abhorrence is a reason to make the eating of pork
illegal. The prohibition rests on religious texts that not all citizens embrace, and it cannot be
translated into a public argument that people of all religions can accept. Similarly in this case, we
must ask whether the arguments against same-sex marriage are expressed in a neutral and
sharable language or only in a sectarian doctrinal language. If the arguments are moral rather than
doctrinal, they fare better, but we still have to ask whether they are compatible with core values of
a society dedicated to giving all citizens the equal protection of the laws. Many legal aspects of our
history of racial and gender-based discrimination were defended by secular moral arguments, but
that did not insulate them from constitutional scrutiny.

Second, we must ask whether each argument justifies its conclusion or whether there is reason to
see the argument as a rationalization of some deeper sort of anxiety or aversion.

The first and most widespread objection to same-sex marriage is that it is immoral and unnatural.
Similar arguments were widespread in the anti-miscegenation debate, and, in both cases, these
arguments are typically made in a sectarian and doctrinal way, referring to religious texts. (Anti-
miscegenation judges, for example, referred to the will of God in arguing that racial mixing is
unnatural.) It is difficult to cast such arguments in a form that could be accepted by citizens whose
religion teaches something different. They look like Jewish arguments against the eating of pork:
good reasons for members of some religions not to engage in same-sex marriage, but not
sufficient reasons for making them illegal in a pluralistic society.

A second objection, and perhaps the one that is most often heard from thoughtful people, insists
that the main purpose of state-sanctified marriage is procreation and the rearing of children.
Protecting an institution that serves these purposes is a legitimate public interest, and so there is a
legitimate public interest in supporting potentially procreative marriages. Does this mean there is
also a public interest in restricting marriage to only those cases where there may be procreation?
This is less clear. We should all agree that the procreation, protection, and safe rearing of children
are important public purposes. It is not clear, however, that we have ever thought these important
purposes best served by restricting marriage to the potentially procreative. If we ever did think like
this, we certainly haven’t done anything about it. We have never limited marriage to the fertile or
even to those of an age to be fertile. It is very difficult, in terms of the state’s interest in procreation,
to explain why the marriage of two heterosexual seventy-year-olds should be permitted and the
marriage of two men or two women should be forbidden—all the more because so many same-
sex couples have and raise children.

As it stands, the procreation argument looks two-faced, approving in heterosexuals what it refuses
to tolerate in same-sex couples. If the arguer should add that sterile heterosexual marriages
somehow support the efforts of the procreative, we can reply that gay and lesbian couples who
don’t have or raise children may support, similarly, the work of procreative couples.

Sometimes this argument is put a little differently: marriage is about the protection of children, and
we know that children do best in a home with one father and one mother, so there is a legitimate
public interest in supporting an institution that fulfills this purpose. Put this way, the argument,
again, offers a legitimate public reason to favor and support heterosexual marriage, though it is
less clear why it gives a reason to restrict same-sex marriage (and marriages of those too old to
have children or not desiring children). Its main problem, however, is with the facts. Again and
again, psychological studies have shown that children do best when they have love and support,
and it appears that two-parent households do better at that job than single-parent households.
There is no evidence, however, that opposite-sex couples do better than same-sex couples. There
is a widespread feeling that these results can’t be right, that living in an “immoral” atmosphere
must be bad for the child. But that feeling rests on the religious judgments of the first argument;
when the well-being of children is assessed in a religiously neutral way, there is no difference.

A third argument is that if same-sex marriage receives state approval, people who believe it to be
evil will be forced to “bless” or approve of it, thus violating their conscience. This argument was
recently made in an influential way by Charles Fried in Modern Liberty and the Limits of
Government. Fried, who supports an end to sodomy laws and expresses considerable sympathy
with same-sex couples, still thinks that marriage goes too far because of this idea of enforced
approval.

What, precisely, is the argument here? Fried does not suggest that the recognition of same-sex
marriage would violate the Free Exercise clause of the First Amendment—and that would be an
implausible position to take. Presumably, the position is that the state has a legitimate interest in
banning same-sex marriage on the grounds that it offends many religious believers.

This argument contains many difficulties. First, it raises an Establishment Clause problem: for, as
we’ve seen, religions vary greatly in their attitude to same-sex marriage, and the state, following
this argument, would be siding with one group of believers against another. More generally, there
are a lot of things that a modern state does that people deeply dislike, often on religious grounds.
Public education teaches things that many religious parents abhor (such as evolution and the
equality of women); parents often choose home schooling for that reason. Public health
regulations license butchers who cut up pigs for human consumption; Jews don’t want to be
associated with this practice. But nobody believes that Jews have a right to ask the state to
impose their religiously grounded preference on all citizens. The Old Order Amish don’t want their
children to attend public school past age fourteen, holding that such schooling is destructive of
community. The state respects that choice—for Amish children; and the state even allows Amish
children to be exempt from some generally applicable laws for reasons of religion. But nobody
would think that the Amish have a right to expect the state to make public schooling past age
fourteen off-limits for all children. Part of life within a pluralistic society that values the non-
establishment of religion is an attitude of live and let live. Whenever we see a nation that does
allow the imposition of religiously grounded preferences on all citizens—as with some Israeli laws
limiting activity on the Sabbath, and as with laws in India banning cow slaughter—we see a nation
with a religious establishment, de jure or de facto. We have chosen not to take that route, and for
good reasons. To the extent that we choose workdays and holidays that coincide with the
preferences of a religious majority, we bend over backward to be sensitive to the difficulties this
may create for minorities.

A fourth argument, again appealing to a legitimate public purpose, focuses on the difficulties that
traditional marriage seems to be facing in our society. Pointing to rising divorce rates and evidence
that children are being damaged by lack of parental support, people say that we need to defend
traditional marriage, not undermine it by opening the institution to those who don’t have any
concern for its traditional purposes. We could begin by contesting the characterization of same-
sex couples. In large numbers, they do have and raise children. Marriage, for them as for others
parents, provides a clear framework of entitlements and responsibilities, as well as security,
legitimacy, and social standing for their children. In fact, the states that have legalized same-sex
marriage, Massachusetts, Connecticut, Iowa, and Vermont, have among the lowest divorce rates
in the nation, and the Massachusetts evidence shows that the rate has not risen as a result of the
legalization. In the European countries that have legalized same-sex marriage, divorce rates
appear to be roughly the same as among heterosexual couples.

We might also pause, for reasons I have already given, before granting that an increase in the
divorce rate signals social degeneration. But let us concede, for the sake of argument, that there is
a social problem. What, then, about the claim that legalizing same-sex marriage would undermine
the effort to defend or protect traditional marriage? If society really wants to defend traditional
marriage, as it surely is entitled to do and probably ought to do, many policies suggest
themselves: family and medical leave; drug and alcohol counseling on demand; generous support
for marital counseling and mental health treatment; strengthening laws against domestic violence
and enforcing them better; employment counseling and financial support for those under stress
during the present economic crisis; and, of course, tighter enforcement of child-support laws. Such
measures have a clear relationship to the stresses and strains facing traditional marriage. The
prohibition of same-sex marriage does not. If we were to study heterosexual divorce, we would be
unlikely to find even a single case in which the parties felt that their divorce was caused by the
availability of marriage to same-sex couples.

The objector at this point typically makes a further move. The very recognition of same-sex
marriage on a par with traditional marriage demeans traditional marriage, makes it less valuable.
What’s being said, it seems, is something like this: if the Metropolitan Opera auditions started
giving prizes to pop singers of the sort who sing on American Idol, this would contaminate the
opera world. Similarly, including in the Hall of Fame baseball players who got their records by
cheating on the drug rules would contaminate the Hall of Fame, cheapening the real achievements
of others. In general, the promiscuous recognition of low-level or non-serious contenders for an
honor sullies the honor. This, I believe, is the sort of argument people are making when they
assert that recognition of same-sex marriage defiles traditional marriage, when they talk about a
“defense of marriage,” and so forth. How should we evaluate this argument?

First of all, we may challenge it on the facts. Same-sex couples are not like B-grade singers or
cheating athletes—or at least no more so than heterosexual couples. They want to get married for
reasons very similar to those of heterosexuals: to express love and commitment, to gain religious
sanctification for their union, to obtain a package of civil benefits—and, often, to have or raise
children. Traditional marriage has its share of creeps, and there are same-sex creeps as well. But
the existence of creeps among the heterosexuals has never stopped the state from marrying
heterosexuals. Nor do people talk or think that way. I’ve never heard anyone say that the state’s
willingness to marry Britney Spears or O. J. Simpson demeans or sullies their own marriage. But
somehow, without even knowing anything about the character or intentions of the same-sex
couple next door, they think their own marriages would be sullied by public recognition of that
union.

If the proposal were to restrict marriage to worthy people who have passed a character test, it
would at least be consistent, though few would support such an intrusive regime. What is clear is
that those who make this argument don’t fret about the way in which unworthy or immoral
heterosexuals could sully the institution of marriage or lower its value. Given that they don’t worry
about this, and given that they don’t want to allow marriage for gays and lesbians who have
proven their good character, it is difficult to take this argument at face value. The idea that same-
sex unions will sully traditional marriage cannot be understood without moving to the terrain of
disgust and contamination. The only distinction between unworthy heterosexuals and the class of
gays and lesbians that can possibly explain the difference in people’s reaction is that the sex acts
of the former do not disgust the majority, whereas the sex acts of the latter do. The thought must
be that to associate traditional marriage with the sex acts of same-sex couples is to defile or
contaminate it, in much the way that eating food served by a dalit, (formerly called “untouchable,”)
used to be taken by many people in India to contaminate the high-caste body. Nothing short of a
primitive idea of stigma and taint can explain the widespread feeling that same-sex marriage
defiles or contaminates straight marriage, while the marriages of “immoral” and “sinful”
heterosexuals do not do so.

If the arguer should reply that marriage between two people of the same sex cannot result in the
procreation of children, and so must be a kind of sham marriage, which insults or parodies, and
thus demeans, the real sort of marriage, we are back to the second argument. Those who insist so
strongly on procreation do not feel sullied or demeaned or tainted by the presence next door of
two opposite-sex seventy-year-olds newly married, nor by the presence of opposite-sex couples
who publicly announce their intention never to have children—or, indeed, by opposite-sex couples
who have adopted children. They do not try to get lawmakers to make such marriages illegal, and
they neither say nor feel that such marriages are immoral or undermine their own. So the feeling of
undermining, or demeaning, cannot honestly be explained by the point about children and must be
explained instead by other, more subterranean, ideas.

If we’re looking for a historical parallel to the anxieties associated with same-sex marriage, we can
find it in the history of views about miscegenation. At the time of Loving v. Virginia, in 1967,
sixteen states both prohibited and punished marriages across racial lines. In Virginia, a typical
example, such a marriage was a felony punishable by from one to five years in prison. Like same-
sex marriages, cross-racial unions were opposed with a variety of arguments, both political and
theological. In hindsight, however, we can see that disgust was at work. Indeed, it did not hide its
hand: the idea of racial purity was proudly proclaimed (for example, in the Racial Integrity Act of
1924 in Virginia), and ideas of taint and contamination were ubiquitous. If white people felt
disgusted and contaminated by the thought that a black person had drunk from the same public
drinking fountain or swum in the same public swimming pool or used the same toilet or the same
plates and glasses—all views widely held by southern whites—we can see that the thought of sex
and marriage between black and white would have carried a powerful freight of revulsion. The
Supreme Court concluded that such ideas of racial stigma were the only ideas that really
supported those laws, whatever else was said: “There is patently no legitimate overriding purpose
independent of invidious racial discrimination which justifies this classification.”

We should draw the same conclusion about the prohibition of same-sex marriage: irrational ideas
of stigma and contamination, the sort of “animus” the Court recognized in Romer v. Evans, is a
powerful force in its support. So thought the Supreme Court of Connecticut in October 2008,
saying,
Beyond moral disapprobation, gay persons also face virulent homophobia that rests on nothing
more than feelings of revulsion toward gay persons and the intimate sexual conduct with which
they are associated…. Such visceral prejudice is reflected in the large number of hate crimes that
are perpetrated against gay persons….The irrational nature of the prejudice directed at gay
persons, who ‘‘are ridiculed, ostracized, despised, demonized and condemned “merely for being
who they are” …is entirely different in kind than the prejudice suffered by other groups that
previously have been denied suspect or quasi-suspect class status. This fact provides further
reason to doubt that such prejudice soon can be eliminated and underscores the reality that gay
persons face unique challenges to their political and social integration.
We have now seen the arguments against same-sex marriage. They do not seem impressive. We
have not seen any that would supply government with a “compelling” state interest, and it seems
likely, given Romer, that these arguments, motivated by animus, fail even the rational basis test.

The argument in favor of same-sex marriage is straightforward: if two people want to make a
commitment of the marital sort, they should be permitted to do so, and excluding one class of
citizens from the benefits and dignity of that commitment demeans them and insults their dignity.

What Is the “Right to Marry”?

IN OUR constitutional tradition, there is frequent talk of a “right to marry.” In Loving, the Court calls
marriage “one of the basic civil rights of man.” A later case, Zablocki v. Redhail, recognizes the
right to marry as a fundamental right for Fourteenth Amendment purposes, apparently under the
Equal Protection clause; the Court states that “the right to marry is of fundamental importance for
all individuals” and continues with the observation that “the decision to marry has been placed on
the same level of importance as decisions relating to procreation, childbirth, child rearing, and
family relationships.” Before courts can sort out the issue of same-sex marriage, they have to
figure out two things: (1) what is this “right to marry”? and (2) who has it?

What does the “right to marry” mean? On a minimal understanding, it just means that if the state
chooses to offer a particular package of expressive and/or civil benefits under the name
“marriage,” it must make that package available to all who seek it without discrimination (though
here “all” will require further interpretation). Loving concerned the exclusion of interracial couples
from the institution; Zablocki concerned the attempt of the state of Wisconsin to exclude from
marriage parents who could not show that they had met their child support obligations. Another
pertinent early case, Skinner v. Oklahoma, invalidated a law mandating the compulsory
sterilization of the “habitual criminal,” saying that such a person, being cut off from “marriage and
procreation,” would be “forever deprived of a basic liberty.” A more recent case, Turner v. Safley,
invalidated a prohibition on marriages by prison inmates. All the major cases, then, turn on the
denial to a particular group of people of an institutional package already available to others.

Is the right to marry, then, merely a non-discrimination right? If so, the state is not required to offer
marriages at all. It’s only that once it does so, it must do so with an even hand. The talk of
marriage as a “fundamental right,” together with the fact that most of these decisions mingle equal
protection analysis with due process considerations, suggests, however, that something further is
being said. What is it? Would it violate the Constitution if a state decided that it would offer only
civil unions and drop the status of marriage, leaving that for religious and private bodies?

Put in terms of our three categories, then, does the “right to marry” obligate a state to offer a set of
economic and civil benefits to married people? Does it obligate a state to confer dignity and status
on certain unions by the use of the term “marriage”? And does it require the state to recognize or
validate unions approved by religious bodies? Clearly, the answer to the third question is, and has
always been, no. Many marriages that are approved by religious bodies are not approved by the
state, as the case of same-sex marriage has long shown us, and nobody has thought it promising
to contest these denials on constitutional grounds. The right to the free exercise of religion clearly
does not require the state to approve all marriages a religious body approves. Nor does the “right
to marry” obligate the state to offer any particular package of civil benefits to people who marry.
This has been said repeatedly in cases dealing with the marriage right.

On the other side, however, it’s clear that the right in question is not simply a right to be treated
like others, barring group-based discrimination. The right to marry is frequently classified with
fundamental personal liberties protected by the Due Process clause of the Fourteenth
Amendment. In Meyer v. Nebraska, for example, the Court says that the liberty protected by that
Clause “without doubt…denotes not merely freedom from bodily restraint but also the right of the
individual to contract, to engage in any of the common occupations of life, to acquire useful
knowledge, to marry, establish a home and bring up children, to worship God according to the
dictates of his own conscience, and generally to enjoy those privileges long recognized…as
essential to the orderly pursuit of happiness by free men.” Loving, similarly, states that “the
freedom to marry, or not marry, a person of another race resides with the individual and cannot be
infringed by the state,” grounding this conclusion in the Due Process clause as well as the Equal
Protection clause. Zablocki allows that “reasonable regulations that do not significantly interfere
with decisions to enter into the marital relationship may legitimately be imposed,” but concludes
that the Wisconsin law goes too far, violating rights guaranteed by the Due Process clause. Turner
v. Safley, similarly, determines that the restriction of prisoner marriages violates the Due Process
clause’s privacy right.

What does due process liberty mean in this case? Most of the cases concern attempts by the state
to forbid a class of marriages. That sort of state interference with marriage is, apparently,
unconstitutional on due process as well as equal protection grounds. So, if a state forbade
everyone to marry, that would presumably be unconstitutional.

Nowhere, however, has the Court held that a state must offer the expressive benefits of marriage.
There would appear to be no constitutional barrier to the decision of a state to get out of the
expressive game altogether, going over to a regime of civil unions or, even more extremely, to a
regime of private contract for marriages, in which the state plays the same role it plays in any other
contractual process.

Again, the issue turns on equality. What the cases consistently hold is that when the state does
offer a status that has both civil benefits and expressive dignity, it must offer it with an even hand.
This position, which I’ve called “minimal,” is not so minimal when one looks into it. Laws against
miscegenation were in force in sixteen states at the time of Loving.

In other words, marriage is a fundamental liberty right of individuals, and because it is that, it also
involves an equality dimension: groups of people cannot be fenced out of that fundamental right
without some overwhelming reason. It’s like voting: there isn’t a constitutional right to vote, as
such: some jobs can be filled by appointment. But the minute voting is offered, it is unconstitutional
to fence out a group of people from the exercise of the right. At this point, then, the questions
become, Who has this liberty/equality right to marry? And what reasons are strong enough to
override it?
Who has the right? At one extreme, it seems clear that, under existing law, the state that offers
marriage is not required to allow it to polygamous unions. Whatever one thinks about the moral
issues involved in polygamy, our constitutional tradition has upheld a law making polygamy
criminal, so it is clear, at present, that polygamous unions do not have equal recognition. (The
legal arguments against polygamy, however, are extremely weak. The primary state interest that is
strong enough to justify legal restriction is an interest in the equality of the sexes, which would not
tell against a regime of sex-equal polygamy.)

Regulations on incestuous unions have also typically been thought to be reasonable exercises of
state power, although, here again, the state interests have been defined very vaguely. The interest
in preventing child abuse would justify a ban on most cases of parent-child incest, but it’s unclear
that there is any strong state interest that should block adult brothers and sisters from marrying.
(The health risk involved is no greater than in many cases where marriage is permitted.)
Nonetheless, it’s clear that if a brother-sister couple challenged such a restriction today on due
process/equal protection grounds, they would lose, because the state’s alleged (health) interest in
forbidding such unions would prevail.

How should we think of these cases? Should we think that these individuals have a right to marry
as they choose, but that the state has a countervailing interest that prevails? Or should we think
that they don’t have the right at all, given the nature of their choices? I incline to the former view.
On this view, the state has to show that the law forbidding such unions really is supported by a
strong public interest.

At the other extreme, it is also clear that the liberty and equality rights involved in the right to marry
do not belong only to the potentially procreative. Turner v. Safley concerned marriages between
inmates, most serving long terms, and non-incarcerated people, marriages that could not be
consummated. The case rested on the emotional support provided by marriage and its religious
and spiritual significance. At one point the Court mentions, as an additional factor, that the inmate
may some day be released, so that the marriage might be consummated, but that is clearly not the
basis of the holding. Nor does any other case suggest that the elderly or the sterile do not have
the right.

The best way of summarizing the tradition seems to be this: all adults have a right to choose
whom to marry. They have this right because of the emotional and personal significance of
marriage, as well as its procreative potential. This right is fundamental for Due Process purposes,
and it also has an equality dimension. No group of people may be fenced out of this right without
an exceedingly strong state justification. It would seem that the best way to think about the cases
of incest and polygamy is that in these cases the state can meet its burden, by showing that policy
considerations outweigh the individual’s right, although it is not impossible to imagine that these
judgments might change over time.

Legal Issues

WHAT, THEN, of people who seek to marry someone of the same sex? This is the question with
which courts are currently wrestling. Recent state court decisions had to answer four questions
(using not only federal constitutional law but also the text and tradition of their own state
constitutions): First, will civil unions suffice, or is the status of marriage constitutionally compelled?
Second, is this issue one of due process or equal protection or a complex mixture of both? Third,
in assessing the putative right against the countervailing claims of state interest, is sexual
orientation a suspect classification for equal protection purposes? In other words, does the state
forbidding such unions have to show a mere rational basis for the law or a “compelling” state
interest? Fourth, what interests might so qualify?
Three states that have recently confronted this question—Massachusetts, California, and
Connecticut—give different answers to these questions, but there is a large measure of
agreement. All agree that, as currently practiced, marriage is a status with a strong component of
public dignity. Because of that unique status, it is fundamental to individual self-definition,
autonomy, and the pursuit of happiness. The right to marry does not belong only to the potentially
procreative. (The Massachusetts court notes, for example, that people who cannot stir from their
deathbed are still permitted to marry.)

For all these expressive reasons, it seems that civil unions are a kind of second-class status,
lacking the affirmation and recognition characteristic of marriage. As the California court put it, the
right is not a right to a particular word, it is the right “to have their family relationship accorded
dignity and respect equal to that accorded other officially recognized families.” All three courts
draw on the miscegenation cases to make this point. The California court notes that if states
opposed to miscegenation had created a separate category called “transracial union,” while still
denying interracial couples the status of “marriage,” we would easily see that this was no solution.

All three courts invoke both due process and equal protection. The Massachusetts court notes that
the two guarantees frequently “overlap, as they do here.” They all agree that the right to marry is
an individual liberty right that also involves an equality component: a group of people can’t be
fenced out of that right without a very strong governmental justification.

How strong? Here the states diverge. The Massachusetts court held that the denial of same-sex
marriages fails to pass even the rational basis test. The California and Connecticut courts, by
contrast, held that sexual orientation is a suspect classification, analogizing sexual orientation to
gender.

What state interests lie on the other side? The California and Connecticut opinions examine
carefully the main contenders, concluding that none rises to the level of a compelling interest.
Preserving tradition all by itself cannot be such an interest: “the justification of ‘tradition’ does not
explain the classification, it just repeats it.” Nor can discrimination be justified simply on the
grounds that legislators have strong convictions. None of the other preferred policy considerations
(the familiar ones we have already identified) stands up as sufficiently strong.

These opinions will not convince everyone. Nor will all who like their conclusion, or even their
reasoning, agree that it’s good for courts to handle this issue, rather than democratic majorities.
But the opinions, I believe, should convince a reasonable person that constitutional law, and
therefore courts, have a legitimate role to play in this divisive area, at least sometimes, standing
up for minorities who are at risk in the majoritarian political process.

Future of Marriage

WHAT OUGHT we to hope and work for, as a just future for families in our society? Should
government continue to marry people at all? Should it drop the expressive dimension and simply
offer civil-union packages? Should it back away from package deals entirely, in favor of a regime
of disaggregated benefits and private contract? Such questions, the penumbra of any
constitutional debate, require us to identify the vital rights and interests that need state protection
and to think how to protect them without impermissibly infringing either equality or individual
liberty. Our analysis of the constitutional issues does not dictate specific answers to these
questions, but it does constrain the options we ought to consider.

The future of marriage looks, in one way, a lot like its past. People will continue to unite, form
families, have children, and, sometimes, split up. What the Constitution dictates, however, is that
whatever the state decides to do in this area will be done on a basis of equality. Government
cannot exclude any group of citizens from the civil benefits or the expressive dignities of marriage
without a compelling public interest. The full inclusion of same-sex couples is in one sense a large
change, just as official recognition of interracial marriage was a large change, and just as the full
inclusion of women and African Americans as voters and citizens was a large change. On the
other hand, those changes are best seen as a true realization of the promise contained in our
constitutional guarantees. We should view this change in the same way. The politics of humanity
asks us to stop viewing same-sex marriage as a source of taint or defilement to traditional
marriage but, instead, to understand the human purposes of those who seek marriage and the
similarity of what they seek to that which straight people seek. When we think this way, the issue
ought to look like the miscegenation issue: as an exclusion we can no longer tolerate in a society
pursuing equal respect and justice for all.

Introduction

Same-sex marriage has been legalized in twenty-seven countries, including the

United States, and civil unions are recognized in many Western democracies. Yet
same-sex marriage remains banned in many countries, and the expansion of
broader lesbian, gay, bisexual and transgender (LGBT) rights has been uneven
globally. International organizations, including the United Nations, have issued
resolutions in support of LGBT rights, but human rights groups say these
organizations have limited power to enforce these newly recognized rights.

International Norms, Democracy, and LGBT Rights

Rights monitors find a strong correlation between LGBT rights and democratic
societies; the research and advocacy group Freedom House lists nearly all the
countries that allow same-sex marriage as “free.” “Wherever you see restrictions
on individuals—in terms of speech, expression, or freedom of assembly—you see a
crackdown on LGBT rights,” says Julie Dorf, senior advisor to the Council for
Global Equality, a Washington-based group that promotes LGBT rights in U.S.
foreign policy. “It’s the canary in the coal mine,” she says.

Javier Corrales, a professor at Amherst College who focuses on LGBT rights in

Latin America, points to income levels and the influence of religion in politics, as
well as the overall strength of democracy, to explain regional divergences [PDF].

While same-sex marriage has made the most gains in Western democracies,
antidiscrimination laws are gaining traction worldwide. In 2019, seventy-three
countries, including some that retain sodomy laws, had protections
against employment discrimination [PDF] based on gender identity or sexual
orientation.

What is important here is the gradual building of

consensus.
Graeme Reid, Human Rights Watch

   

The UN Human Rights Council, expressing “grave concerns” over violence and
discrimination against individuals based on sexual orientation and gender identity,
commissioned the body’s first study on the topic [PDF] in 2011. In 2014 the
council passed a resolution to combat anti-LGBT violence and discrimination. Two
years later, the United Nations appointed its first-ever independent expert on sexual
orientation and gender identity. “What is important here is the gradual building of
consensus,” says Graeme Reid, director of the lesbian, gay, bisexual, and
transgender rights program at Human Rights Watch. “There’s an accumulation of
moral pressure on member states to at least address the most overt forms of
discrimination or violence.”

Activists in the international arena have focused on antiviolence and

antidiscrimination campaigns rather than same-sex marriage. “There’s no sensible
diplomat who would think that pushing same-sex marriage on a country that’s not
ready for it is a good idea,” says Dorf. She adds that not all countries that allow
same-sex marriage allow couples to jointly adopt and cautions against equating the
right to marry with freedom from discrimination. For example, in the United States,
where same-sex couples can marry, federal law does not prohibit employment
discrimination based on sexual orientation or gender identity, and employees can
legally be fired on the basis of their sexual orientation in more than half of states.
Are same-sex marriages different from heterosexual marriages?

Like heterosexuals, many lesbian, gay and bisexual people want to form stable, long-lasting relationships and many
of them do. In fact, researchers have found that the majority of lesbian, and gay, adults are in committed
relationships and many couples have been together 10 or more years. 

Scientists have found that the psychological and social aspects of committed relationships between same-sex
partners largely resemble those of heterosexual partnerships. Like heterosexual couples, same-sex couples form
deep emotional attachments and commitments. Same-sex and heterosexual couples alike face similar issues
concerning intimacy, love, loyalty and stability, and they go through similar processes to address those issues.
Empirical research also shows that lesbian and gay couples have levels of relationship satisfaction similar to or higher
than those of heterosexual couples.

How do laws that limit marriage to heterosexuals affect gay and lesbian people?

Being denied the right to marry reinforces the stigma associated with a minority sexual identity. Researchers have
found that living in a state where same-sex marriage is outlawed can lead to chronic social stress and mental health
problems. Psychologists are particularly concerned that such stigma may undermine the healthy development of
adolescents and young adults. 

The families and friends of lesbian and gay couples who are denied marriage rights may also experience negative
physical and mental health consequences similar to those experienced by their loved ones.

Do same-sex couples make fit parents?

The vast majority of scientific studies that have directly compared lesbian and gay parents with heterosexual parents
have consistently shown that the same-sex couples are as fit and capable parents as heterosexual couples, and that
their children are just as psychologically healthy and well adjusted. For instance, one recent study (PDF, 169KB)
found that children of same-sex couples do just as well in school as children of heterosexual couples, and these
children are equally popular among their peers.

Why is marriage so important?

Marriage bestows economic and social support to couples in committed relationships, which can result in substantial
health benefits. Researchers have found that married men and women generally experience better physical and
mental health than comparable cohabiting couples. Additionally, same-sex couples in legal unions are more likely to
remain in a committed relationship than those denied marriage rights. 

Taken together, the research shows that there's no scientific basis for denying marriage rights to same-sex couples,
and doing so can adversely affect them as well as their family and friends. 

On June 26, 2015, the U.S. Supreme Court issued a landmark ruling that granted same-sex couples a constitutional
right to marry. The 5-4 decision in Obergefell v. Hodges legalized gay marriage nationwide, including in the 14 states
that did not previously allow gays and lesbians to wed. The decision rested in part on the court’s interpretation of
the 14th Amendment; the justices ruled that limiting marriage to heterosexual couples violates the amendment’s
guarantee of equal protection under the law.

As we approach the fourth anniversary of the ruling, here are five key facts about same-sex marriage:
1Public remains supportive of same-sex marriage; wide partisan gap persistsThe share of Americans who favor same
sex-marriage grew steadily for most of the last decade, but public support has leveled off in the last few years.
Around four-in-ten U.S. adults (37%) favored allowing gays and lesbians to wed in 2009, a share that rose to 62% in
2017. But views are largely unchanged over the last few years. About six-in-ten Americans (61%) support same-sex
marriage in the most recent Pew Research Center survey on the issue, conducted in March 2019.

2Although support in the U.S. for same-sex marriage has increased among nearly all demographic groups, there are
still sizable demographic and partisan divides. For example, today, 79% of Americans who are religiously unaffiliated
favor same-sex marriage, as do 66% of white mainline Protestants and 61% of Catholics. Among white evangelical
Protestants, however, only 29% favor same-sex marriage. Still, this is roughly double the level (15%) in 2009.

While support for same-sex marriage has grown steadily across generational cohorts in the last 15 years, there are
still sizable age gaps. For instance, 45% of adults in the Silent Generation (those born between 1928 and 1945) favor
allowing gays and lesbians to wed, compared with 74% of Millennials (born between 1981 and 1996). There also is a
sizable political divide: Republicans and Republican-leaning independents are much less likely to favor same sex
marriage than Democrats and Democratic leaners (44% vs. 75%).

3Same-sex marriages are on the rise. Surveys conducted by Gallup in 2017 find that about one-in-ten LGBT
Americans (10.2%) are married to a same-sex partner, up from the months before the high court decision (7.9%). As
a result, a majority (61%) of same-sex cohabiting couples were married as of 2017, up from 38% before the ruling.

4Why get married?As with the general public, Americans who identify as lesbian, gay, bisexual or transgender (LGBT)
are most likely to cite love as a very important reason for getting married. In a 2013 Pew Research Center survey,
84% of LGBT adults and 88% of the general public cited love as a very important reason for getting married, and at
least seven-in-ten in both groups cited companionship (71% and 76%, respectively). But there were some
differences, too. LGBT Americans, for instance, were twice as likely as those in the general public to cite legal rights
and benefits as a very important reason for getting married (46% versus 23%), while those in the general public were
nearly twice as likely as LGBT Americans to cite having children (49% versus 28%).

5The U.S. is among 29 countries and jurisdictions that allow gay and lesbian couples to wed. The first nation to
legalize gay marriage was the Netherlands, which did so in 2000. Since then, several other European countries –
including England and Wales, France, Ireland, all of Scandinavia, Spain and, most recently, Austria, Germany and
Malta – have legalized gay marriage. Outside of Europe, same-sex marriage is now legal in Argentina, Australia,
Brazil, Canada, Colombia, Ecuador, New Zealand, South Africa and Uruguay, as well as in parts of Mexico. And in May
2019, Taiwan became the first country in Asia to allow gays and lesbians to legally wed.