2nd Place: "'Life, Liberty, and Pursuit of Happiness':
Anonymous from Provo, Utah
SquareTwo, Vol. 2 No. 3 (Fall 2009)
IntroductionIn a May 27, 2009 article for the Huffington Post, singer/songwriter Rob Thomas stated of gay marriage that, “to deny this right to the gay population is to say to them, ‘this god is not your god and he doesn't love you.’ There isn't one person who is against gay marriage that can give me a reason why it shouldn't be legal without bringing God or their religion into it” (Thomas, 2009). This statement captures the continually increasing fervor surrounding the gay  marriage debate, a fervor which has polarized the nation into two camps, both of whom believe that they, and they alone, represent all that is right and good in this nation. As Thomas explains, the vast majority of people fighting against gay marriages do so because they feel that extending the label of marriage to gay couples contradicts their deepest religious beliefs. In contrast, proponents of gay marriage feel that religious zealots should not be allowed to push their beliefs upon others, discriminating against them and robbing them of the “right” to marriage.
Because it speaks to such deep emotions, the debate over the simple title of marriage far overshadows any similar fight for governmental favor facing our nation today. Although other household arrangements, such as polygamy or cohabitation without marriage, do exist in our society, these arrangements create very slight argument in favor of state privilege for their interests, and so I will not enter into a discussion of those topics here. Instead, my aim is to focus solely upon the privilege offered to heterosexual couples of claiming the official title of marriage, examining the legal right of homosexual couples to gain equal access to this title.
The Role and Responsibility of Government
Part of the difficulty in assessing the validity of any arguments surrounding gay marriage arises from the inherent moral question imbedded within the concept of homosexual relationships. For many Christians, Jews, and Muslims, homosexuality is purely and simply immoral, and they discount the idea of gay marriage exclusively on the grounds that it is unacceptable before God. On the other side of the debate, many gay couples feel that they were born gay, that they cannot help being gay, and that to discriminate against them on these grounds is as morally reprehensible as discriminating against someone on the grounds of race or gender. The problem with basing legal decisions entirely upon morality is that no two persons hold identical moral beliefs, and so there is no precise way in which to gauge what is “right” or “wrong” for the entire nation.
In order to circumvent the issue of conflicting morality, we must first examine the official role and responsibility of the United States government with respect to its citizens. The Declaration of Independence, one of the founding documents of this nation, states clearly that “all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.--That to secure these rights, Governments are instituted among Men” (Declaration of Independence). According to the declaration, the government exists in order to protect the right of its citizens to life, liberty, and the pursuit of happiness. The United States Constitution, legally considered the basis of all other national law, solidifies this responsibility of government, explaining in its preamble that, "We the People of the United States, in Order to form a more perfect Union, establish Justice…and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America” (US Constitution Preamble). Thus, the government’s primary responsibility is to establish justice in order to protect the liberty of its people.
All national laws should, ideally, stem from a need to protect the rights of U.S. citizens, regardless of the morality of such laws. Fortunately, in protecting the rights to life, liberty, and the pursuit of happiness, many of these laws fall into alignment with what the majority of the population considers to be moral. For example, the vast majority of Americans would automatically consider murder to be an immoral act, and so they have no objection to laws outlawing murder. However, the fact that many consider murder to be immoral may not technically be the legal basis for such laws. These laws exist mainly because, if one person chooses to murder, they infringe upon the right to life of another person and the government has a responsibility to either prevent or to punish them.
As another example, there may not be anything morally wrong about driving fifty miles per hour. In fact, under certain circumstances, the majority of people would consider fifty miles per hour to be a perfectly acceptable speed for any individual to travel. However, when driving fifty miles per hour endangers the safety of other people, infringing upon their right to life or liberty, the government has a responsibility to create restrictions as to when and where people are allowed to travel at this speed. In both examples, the government does not necessarily follow a purely moral code, but instead it acts in such a way as to protect the rights of the majority. Of course, one might claim that the government encroaches upon the rights of the serial killer who thirsts for blood or the thrill-seeker who enjoys driving eighty miles per hour in a school zone. In such cases, the state has the primary responsibility to maintain the rights of the majority. Once people decide to infringe upon the rights of others, they lose their claim to governmental protection.
The above guidelines for state intervention become slightly less clear in cases such as the gay marriage debate, where two groups appear to have mutually exclusive rights. However, in order to reach a reasonable decision, we must weigh the legal rights of each side and attempt to protect the rights of the majority.
Advocates of gay marriage claim that it is an issue of civil rights, comparable to the struggles of women or of black people to gain recognition under the law which was equal to that historically possessed by white males. In the California Supreme Court decision People v. Garcia (2000), the majority opinion states that “Outside of racial and religious minorities, we can think of no group which has suffered such ‘pernicious and sustained hostility’, and such ‘immediate and severe opprobrium’, as homosexuals” (qtd in RE Marriage Cases 2008: 97). The fight for the legal status of marriage symbolizes a desire to stand on the same footing as committed heterosexual couples. Any other legal arrangement, including that of civil unions, creates a divide between heterosexual couples and gay couples, implying that gay couples are somehow inferior to straight couples.
Part of this dissatisfaction with the idea of civil unions stems from the idea that a civil union is a state-by-state arrangement, and that the rights which a gay couple might possess in Massachusetts might not necessarily apply in Kentucky. In fact, if a gay couple moves from one state to another, there is no legal obligation for the new state of residence to acknowledge the union. Additionally, many of the federal rights granted to married couples do not apply to civil unions, including the ability to file joint tax returns (“Comparing marriage,” 2004). Under such circumstances, gay couples claim that civil unions follow the same pattern set by the landmark civil rights case Brown v. Board of Education, in which the Supreme Court determined that “separate but equal” school systems were inherently unequal and could never become equal. As tax-paying citizens, gay couples feel that they have the same right to marriage which any straight couple possesses.
In contrast to these concerns, religious groups fear that the legalization of gay marriage would infringe upon the freedom of religion guaranteed within the First Amendment of the United States Constitution. If the government offers the title of marriage to gay couples, then, hypothetically, gay rights activists could sue religious groups refusing to perform gay marriages, forcing them to participate in ceremonies to which they are morally opposed. The precedent for such action already exists in previous court cases. For example, in 2007, a lesbian couple filed a complaint with the New Jersey Division on Civil Rights when a Methodist organization, the Ocean Grove Camp Meeting Association of New Jersey, refused their request to perform their civil union on a boardwalk owned by the group (Moore v. Ocean Grove). The organization claimed that allowing the lesbian couple to rent their boardwalk would directly violate the religious beliefs of the owners. According to a National Public Radio report, “The division ruled that the boardwalk property was open for public use, therefore the Methodist group could not discriminate against gay couples using it. In the interim, the state's Department of Environmental Protection revoked a portion of the association's tax benefits” (Hagerty 2008). Eventually, the department rejected the complaint because the organization stopped performing marriages of any kind at their facility.
This case, along with others, highlights some of the major fears of religious groups with regards to gay marriage. Currently, the legal distinction between civil unions and marriages offers religious institutions some protection from prosecution. If, however, this distinction disappears, then it opens the door for gay activists to attack any religious institution which refuses to marry them, claiming it to be a matter of illegal discrimination. This case also points out the possibility that if churches refuse to marry gay couples due to religious objections, they could also potentially lose their tax exemptions from the government, creating enormous financial difficulties for many religious groups.
Are these combating rights completely and totally irreconcilable? Does the law have to steal the rights of one group in order to give to the other? I submit that the only solution which satisfies the basic rights of both groups in question awards the title of marriage exclusively to heterosexual couples, labeling all other unions as civil unions.
The apparent losers in such a situation would be the gay couples seeking for equal footing with married couples. However, in an examination of pure rights, it is possible to make a civil union equivalent to a marriage without bestowing upon it the actual title. In the May 2008 California Supreme Court ruling on Proposition 22, which overturned a ballot initiative to define marriage as being between only one man and one woman, Justice Baxter explained in his dissenting opinion that “California statutes already recognize same-sex unions and grant them all the substantive legal rights this state can bestow” (RE Marriage Cases 2008: 128). According to Baxter, the current laws surrounding civil unions in California provide gay couples with all of the rights offered to married couples, including the right to hospital visitation and the right to file a joint tax return for the state.
Not all states offer such extensive rights to the partners of a civil union, but the example of California indicates that such equality on the state level is a possibility, leaving only federal concerns in the argument for equal treatment. In a New York Times editorial piece, David Blankenhorn and Jonathan Rauch propose a solution to this conflict. They suggest that the federal government should recognize civil unions, “thereby conferring upon them most or all of the federal benefits and rights of marriage…Washington would recognize only those unions licensed in states with robust religious-conscience exceptions, which provide that religious organizations need not recognize same-sex unions against their will” (Blankenhorn and Rauch 2009). In recognizing civil unions at the federal level, gay couples would be able to gain national recognition for their civil unions, regardless of their state of residence. A federal civil union would also grant these couples with access to federal benefits currently denied to them, such as the ability to file joint federal taxes in addition to their state taxes. 
The main problem with the Blankenhorn/Rauch solution appears in the vague requirement for “robust religious-conscious exceptions” to protect churches from being forced to perform unions against their beliefs. Such requirements would be difficult to regulate from state to state without extremely specific federal guidelines. However, by defining marriage as a union specific to one man and one woman, such specific exceptions may not be necessary. If a religious group has fundamental objections to gay unions, they can choose exclusively to perform the ritual of marriage. The difference between refusing to participate in gay marriages and refusing to participate in civil unions may appear to be insignificant, but it offers the churches a means of protection. In the first case, churches would be discriminating between couples exclusively on the grounds of sexual orientation, or, in other words, because of who they are. In the second case, the churches would be choosing to perform only one specific type of rite to unite loving couples, thereby focusing on supporting one specific action as opposed to another.
This distinction may seem to be slight unless viewed from the perspective of all other religious rites and rituals. Many religions perform coming-of-age rituals which represent progression in the faith. For Jewish youth, this ritual comes in the form of a Bar or Bat Mitzvah, depending upon the gender of the child. For Roman Catholic children, one of several rituals is the First Communion. Although each religion has its own rites to mark spiritual growth, no church requires other churches to perform their rituals. A Roman Catholic child could not sue a Jewish synagogue for refusing to perform a First Communion for them. It is highly doubtful that a Catholic family would have the desire to make such a request. Why? Simply put, the ritual of First Communion is an action which represents a belief and way of life specific to Roman Catholics. The parents of the child seeking First Communion wish the ritual to be performed by those who share these specific beliefs rather than a rabbi with no belief in the Eucharist. The leaders of the synagogue do not necessarily bar the child from the synagogue because they were born in a Catholic family, a situation over which they have no control, but because they choose to participate in the rites of passage which are not in accordance with Jewish faith.
The same principle can apply to the rite of marriage. If a church refuses to perform a civil union, it is because they do not believe in that specific rite from a religious perspective. It is an action which is outside of the practice of their religion, and so they have no obligation to comply with it. Gay couples can easily have their union carried out by one who believes in their union and supports it, just as any nonreligious couple has the right to perform their marriage without the blessing of a religious leader who does not support their way of life. This makes them no different than the Catholic child who, due to his or her belief, chooses to receive First Communion in a Catholic church rather than a Jewish synagogue. This is not to say that all marriages are religious affairs, but, ultimately, the issue of gay unions comes down to conflicting fundamental beliefs, and so it still fits into the model of freedom of personal conviction. 
Why Brown v. Board of Education Does Not Apply
Even if civil unions for gay couples have equal rights to marriages on paper, the issue of “separate but equal” still remains. The Brown v. Board of Education ruling in 1954 declared that, “Separate educational facilities [for black and white children] are inherently unequal” (Brown v. Board). Gay rights advocates claim that civil unions fall under this ruling, creating a separate union which cannot ever equal marriage by the very fact that it is different. In the Proposition 22 ruling, the majority opinion claimed that, “because of the widespread disparagement that gay individuals historically have faced, it is all the more probable that excluding same-sex couples from the legal institution of marriage is likely to be viewed as reflecting an official view that their committed relationships are of lesser stature than the comparable relationships of opposite-sex couples” (RE Marriage Cases 2008: 11). While this argument may be compelling, ultimately, there is no concrete reason why this concern must become a reality.
If, according to the state, same-sex couples in a civil union receive the exact same benefits awarded to married couples, then there is no logical reason why they should feel unequal under the law. The government has upheld its main responsibility, which is to protect the physical rights of each party. However, the support of the law may not necessarily alter the way in which society views civil unions. The main reason why Brown v. Board of Education claimed that separate schools could never be equal was because the black children began to feel unequal in a separated learning environment. At first glance, this may appear to match the circumstances surrounding civil unions. On further examination, however, the two situations do not correlate. One refers to a physical separation, while the other refers to an official categorization. In a forced state of physical separation, the underlying implication is that one group is either unworthy to associate with the other group or has some undesirable trait which might affect the “better” group. Even if there are claims of equality, there can be no forced physical separation without labeling one group or the other as inferior. In the case of separation due to race, there was no excuse for such a separation which did not at least indirectly imply that the presence of black students would be detrimental to white students or that black students could not learn at a level equal to that of white students.
In the case of gay marriage, however, there is no forced physical separation. There is simply an official categorization with neutral value, intended to be neither better nor worse than marriage. Although many opponents of gay marriage claim that such unions would “taint” the value of marriage, from a governmental standpoint, this is not the reason for the separation. The difference in titles merely allows for gay couples to receive governmental benefits without encroaching upon the religious freedom of opposing groups. In no way does it claim that physical proximity of gay people to straight people will have a detrimental effect on society. There is nothing in inherent in such a separation which implies a necessary inferiority, and so claims of unfairness do not hold much weight.
Admittedly, in our society today, there is a general feeling that civil unions are, in some way, inferior to marriage. Part of this stems from the lack of federal rights associated with civil unions, but part of it also stems from the mindset of the nation in general. Unfortunately for advocates of gay rights, there is little that the law can actually do to change the mindset of the people. Realistically, even the legalization of gay marriage would not force religious groups to give respect and acknowledgement to these unions. Going back to the example of conflicting religious beliefs, we can see the solution to this issue more clearly. According to basic Catholic doctrine, only Christian believers who participate in certain rituals will be saved at the last day, thereby condemning Jews as infidels destined for damnation. Catholic doctrine does not recognize the validity of the Bar Mitzvah, or any rituals belonging to other non-Christian religions. However, this viewpoint does not prevent those of the Jewish faith from participating in and enjoying their own religion. Just because some Catholics may view Jews as spiritually inferior does not automatically assign them to a life of inferiority. If members of the Jewish faith have enough conviction in their own beliefs, they may be bothered by the disparagement of others, but in no way does it make them feel that their lifestyle is inferior to that of their Christian neighbors. In this way, Catholics and Jews can live side by side in a state of harmony, each enjoying their own lifestyle without hindering that of the other.
If the gay community chooses to take this approach to civil unions, they, too, can live in a state of fulfillment and satisfaction. By viewing civil unions as a symbol of their commitment rather than a mark of disparagement, there is no reason why gay couples would need to feel inferior or marginalized, regardless of how others view them.
In the debate over gay marriage, “favoring” heterosexual couples with the title of marriage is the only way in which to protect the basic rights of all US citizens and therefore fulfill the responsibilities of government. As with any compromise, there will always be those who still feel that their individual rights have been violated. Those who wish to strip gay couples of all rights and hide them away from society will feel that any sort of civil union is a threat to their beliefs. On the other end of the spectrum, some supporters of gay rights feel that their cause cannot be accomplished until all sects have been forced to accept their lifestyle. In both of these cases, those who feel slighted join the ranks of the serial killer and the thrill-seeker, who lose their claim on the government as soon as they attempt to rob others of their rights. The law has no responsibility to appease these people as long as it continues to protect the basic rights of each individual to life, liberty, and the pursuit of happiness.
Blankenhorn, David and Jonathan Rauch. “A Reconciliation on Gay Marriage.” The New York
Brown v. Board of Education. No. 347. US Supreme Court. 17 May 1954.
“Comparing Marriage and Civil Unions.” CNN.com. 26 February 2004. Cable News Network.
Hagerty, Barbara. “When Gay Rights and Religious Liberties Clash.” NPR.org. 13 June 2008. 29
Janice Moore v. Ocean Grove Camp Meeting Association. No. PN34XB-03012. New Jersey
RE Marriage Cases. No. S147999. California Supreme Ct. 15 May 2008.
Huffingtonpost.com, Inc. 29 May 2009. <http://www.huffingtonpost.com/rob-thomas/the-big-gay-chip-on-my-sh_b_208183.html>
 For the purposes of this paper, the term “gay” will be used to reference any type of same-sex couple, including lesbian couples. [Back to manuscript]
 The one right which would require further scrutiny is that of adoption, mainly because it not only affects the rights of the couple, but also the rights of the child. Such a decision would demand extensive research into whether same-sex parents affect the wellbeing of the children. [Back to manuscript]
 Some gay advocates suggest an alternate solution which follows the example set by countries such as Norway, Sweden, Spain, and the Netherlands. These countries take the opposite approach to marriage than the one mentioned here, viewing it is a completely secular affair which must be performed by a government employee. However, such an approach would first require a new legal designation of marriage as a strictly secular matter and then it would additionally require a law legalizing gay marriage. It is my opinion that this type of compromise, while worth considering and analyzing further, is not a realistic possibility within this nation’s current political climate, and that civil unions pose a more immediately feasible solution to the conflict. [Back to manuscript]
Full Citation for This Article: Anonymous (2009) "'Life, Liberty, and Pursuit of Happiness': The Case for Traditional Marriage," SquareTwo, Vol. 2 No. 3 (Fall), http://squaretwo.org/Sq2ArticleJohnsonMarriage.html, accessed [give access date].
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