An odd silence on gay marriage

An odd silence on gay marriage
By Carlos T Mock, MD
August 22, 2009

The case for allowing gays to marry begins with equality, pure and simple.

The Gay and Lesbian community is not asking for the right to have religious organizations recognize their unions. As a matter of fact, some religions are already performing same sex marriages: both the Reform and Reconstructionist Jewish movements support gay and lesbian rights, including the right of same-sex couples to wed; In 1996, the Unitarian Universalist Association of Congregations passed a resolution in support of same-sex marriage; In 2005, the General Synod of the United Church of Christ voted to legally recognize and advocate in favor of same-sex marriage. However, in spite of the wonderful ability to wed in these religious ceremonies, Gay and Lesbian couples get no civil rights through them.

The case against same sex marriage, according to the religious right, is that this would damage an important social institution. Yet, the reverse is surely true. Gays want to marry precisely because we see marriage as important: we want the symbolism that marriage brings, the extra sense of obligation and commitment, as well as the social recognition. Allowing gays to marry would, if anything, add to social stability, for it would increase the number of couples that take on real, rather than simply passing, commitments. The weakening of marriage has been heterosexuals' doing, not gays', for it is their infidelity, divorce rates and single-parent families that have wrought social damage. As a matter of fact, Massachusetts, the first US state to grant same sex marriage licenses, has the lowest divorce rate in the U.S.

The importance of marriage for society's general health and stability also explains why the commonly mooted alternative to gay marriage-a so-called civil union-is not enough. Yet, those civil unions would be both wrong in principle and damaging for society. Marriage, as it is commonly viewed in society, is more than just a legal contract. Moreover, to establish something short of real marriage for some adults would tend to undermine the notion for all. Why shouldn't everyone, in time, downgrade to civil unions? Now that really would threaten a fundamental institution of civilization.


As a nation that was built in the separation of Church and State, Gays and lesbians are not trying to force any religious institution to recognize our marriages (really, we don’t care!)—just the federal and state governments. Gay and lesbian Americans feel they need and deserve the perquisites and protections that accompany a civil legal marriage. Federal law links many important perquisites to marital status, including Social Security survivor benefits, tax-free inheritance, spousal immigration rights and protections against mutual incrimination. All of these benefits are currently denied to same-sex couples, even those living in states that permit same-sex marriage or civil unions.

In 2003, the U. S. Supreme court Lawrence v. Texas Sodomy declared unconstitutional sodomy laws. The majority opinion, written by Justice Anthony Kennedy, explicitly reversed Bowers v. Hardwick. (On June 30, 1986, the Supreme Court of the United States ruled in Bowers v. Hardwick, that homosexual citizens had no constitutional right to privacy.) What is significant about this decision is that under the common law, the existence of rights of sexual partners are recognized through the marriage contract. That is, in common law there is no stand-alone right to engage in sexual activity, be they male or female, adult or minor. But, it is a basic legal principle under the common and statutory laws that everything that is not forbidden by the common and statutory law is allowed. As sexual acts usually take place in private, few cases involving engagement in sodomy and fornication come before the courts, and no precedent was established under the common law forbidding fornication; with sodomy, the common law is mixed. This was most notable in Judge Scalia dissension: with this decision, Scalia concluded, the Court "has largely signed on to the so-called homosexual agenda." While Scalia said that he has "nothing against homosexuals, or any other group, promoting their agenda through normal democratic means," Scalia argued that the Court has an obligation to decide cases neutrally. In Goodridge v. Department of Public Health, a later case decided by the Massachusetts Supreme Judicial Court, held that the Massachusetts Constitution requires that marriage be available to homosexual as well as heterosexual couples.

Now that The Lawrence decision has made our relationships “officially” legal—our rights need protection like those of any other U. S. citizen—therefore the 14th Amendment to the constitution applies fully to homosexuals: this amendment provides a broad definition of citizenship, overruling Dred Scott v. Sandford (1857) which had excluded slaves and their descendants from possessing Constitutional rights. The amendment requires states to provide equal protection under the law to all persons within their jurisdictions and was used in the mid-20th century to dismantle racial segregation in the United States, as in Brown v. Board of Education (1954). Its Due Process Clause has been the basis of much important and controversial case law regarding privacy rights, abortion (Roe v. Wade), and other issues.

This is the only legal compromise for same sex “civil “marriages—we are legal citizens of the U. S. of A. and pay taxes and FICA like every other citizen in the country. Until we are allowed the “civil right” to wed, we will be second class citizens—we will be deprived of more than 1,138 federal rights that accompany civil marriage, and some additional 300-600 per individual state. That means your run-of-the-mill-marriage-license-carrying heterosexual couple has access to over 1,400 rights, benefits, and protections that gay and lesbian citizens are unable to obtain! This is a clear violation of the 14th amendment to the U. S. Constitution that provides equal protection under the law to all persons regardless of sexual preference or gender orientation!

Civil unions are not enough!

In Loving v. Virginia, (1967) where The U.S. Supreme Court overturned the convictions in a unanimous decision, dismissing the Commonwealth of Virginia's argument that a law forbidding both white and black persons from marrying persons of another race, and providing identical penalties to white and black violators, could not be construed as racially discriminatory. The court ruled that Virginia's anti-miscegenation statute violated both the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment. In the Court's decision, Chief Justice Warren wrote:
“Marriage is one of 'the basic civil rights of man,' fundamental to our very existence and survival . . . To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law.”