Same-Sex Marriage in the U.S.

Li Luo

Same-Sex Marriage in the U.S.: The Fight for Equal Rights and Equal Citizenship

Intro and Thesis

“We hold these truths to be self-evident, 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.”

– Declaration of Independence, 1776

When we look back at American history, this well-known statement that was written in the Declaration of Independence has been constantly brought up by different groups of people to defend their equal rights and freedom in the society: America’s founding fathers used it to light up American’s spirit to fight for their freedom and rights from the oppression of Britain; African-Americans borrowed it to fight against their same rights as white people that has been denied by the laws for a long time. And right now, in our generation, we are witnessing a new battle for equality — Same-sex marriage.

The fight for same-sex marriage has a deep historical origin. Ever since the beginning of human civilization, marital and family relations have always been the foundation of human society. Marriage creates intimacy and family among individuals, it also provides order, stability and consistency which are essential to the survival and prosperity of human society. Based on those principles, people build up traditional family values, provide legal recognition and all sorts of privileges/rights through public institutions to reinforce this social norm. However, as the traditional marital relations and social order are rooted in heterosexuality, many people consider the legalization of same-sex marriage as a threat to this social norm, and refuse to give LGBT people the full rights and citizenship. In this paper, I will analyze the battle of same-sex marriage from three different perspective: rights and obligations; separation of powers and federalism; factions and democratic consensus. In the last section, I will conclude that as LGBT people constantly fighting for their equal right of marriage, and the fact that more and more American people are willing to accept gay people, the nationwide legalization of same-sex marriage looks promising and the boundary of citizenship in American society is being refined.

Rights and obligations: the unequal citizenship in terms of LGBT groups’ right of marriage.

Citizenship has different meaning in different perspective. Citizenship can be used to describe someone’s legal identity, it also can mean people’s engagement in politics and community. In the article “The Meaning of Citizenship”, Kerber offered a different way to think about the definition of citizenship – a formal legal status with the possession of guaranteed rights as well as obligations. She believes that rights and obligations should be equal: If a person wants to enjoy the privileges and freedom his or her state provides, he or she must fulfill their obligations as a citizen. However, in some cases, certain groups of people are not being offered equal rights even though they meet their responsibilities. Specifically speaking, in some states, LGBT people are refused to be given the same rights as heterosexual people to marry the ones they love even the same amount of obligations are fulfilled. Besides, since marital and family relations are the foundation of human society, without legal marriage status, same-sex couples usually face many more economic and legal disadvantages compared to opposite-sex married couples, including medical care, inheritance, income tax, etc.

Should government provides equal right of marriage to LGBT people? The debates over this topic have lasted for more than four decades. In 1970, two students from University of Minnesota, Richard Baker and James Michael McConnell became the first gay couple to apply for a marriage license (Rimmerman, 101). Unsurprisingly, their application was denied by the local county, and in their appeal case Baker v. Nelson, the Minnesota Supreme Court upheld a state law that limiting marriage to opposite-sex couples (Rimmerman, 101). In the following two decades, many other states successively received similar suits, however, they all ended up in the same fate as the first one – being rejected to give the right of marriage for gay couples.

It wasn’t until early 1990s that the debates over same-sex marriage emerge to the national level. In 1991, in the case of Baehr v. Lewin, Hawaii Supreme Court rules that denial of same marriage right for same-sex couple violate the state constitution (Rimmerman, 103). This judgment raised a lot of concerns of people who oppose same-sex marriage. They fear that this result might lead to final approval of same-sex marriage in Hawaii and the U.S. nationwide (Rimmerman, 103). Therefore, with the purpose of preventing legal recognition of same-sex marriage in Hawaii, in 1996, conservatives introduced and pushed the pass of The Defense of Marriage Act (DOMA). Under the provisions of the DOMA, the word “marriage” is strictly define as the legal union between a man and a woman. Furthermore, DOMA permits states to refuse recognition of same-sex marriages granted under the laws of other states.

I will consider the debates over this federal law in terms of Equal Protection Clause and Full Faith and Credit Clause.

The LGBT people have long been tried to fight for their equal rights of marriage, even though they have faced many impediments from conservatives. There are a series of struggles in court, including Lawrence v. Texas, United States v. Windsor, etc that can proves LGBT people’s struggles. I will analyze some of the most important cases in detail to examine how LGBT groups use their judicial power to challenge DOMA and secure their rights.

How separation of powers within government and federalism apply to the same-sex marriage issue.
Madison argues that creating “checks and balances” within government can prevent abuse of power. This idea can be applied to the same-sex marriage issue. In United States v. Windsor, the Federal Supreme Court struck down Section 3 of DOMA that defined “marriage” and “spouse” to apply only to heterosexual people. This is an example that Judicial branch checking the Legislative branch. I will also describe other cases including Baker v. Vermont, Hollingsworth v. Perry.
In Federalist No. 51, Madison’s argument that a separation of powers can create a balance of interests can be extended to the idea of federalism. Federalism gives states the freedom to make their own policy that suits local circumstances. When different states make different laws and take different attitudes towards the same-sex marriage issue, this is the practice of federalism. To break this inequality across states and local areas, LGBT groups are now working hard to promote the legalization of same-sex marriage on the federal level. The Supremacy Clause and 10^th Amendment will also be mentioned to illustrate its principle.
Competing factions in the same-sex marriage issue.
Federalist No. 10 discussed about how to break and control factions to avoid tyranny of the majority. In terms of the same-sex marriage issue, American society was divided by different groups that either support it or are against it or take neutral stance. I will list some major political and social groups and illustrate their attitudes towards the same-sex marriage issue, including Democratic and Republican Parties, Churches/Religious institutions, and human rights Organizations.
Since LGBT group are pushing national legalization of same-sex marriage, is this a tyranny of the majority? I will discuss about this question in detail and give my answer that it’s a majority rule rather than tyranny of the majority.
Conclusion
Summarize key arguments.
Add current data: Marriage between same-sex couples has been recognized on the federal level. As the Supreme Court decided to let stand rulings that allow same-sex marriage in late 2014, now 37 states have legalized same-sex marriage with more states to join them. The road of marriage equality looks more promising than before, and we can see that citizenship is being redefined to provide equal rights to LGBT people.

ANNOTATED BIBLIOGRAPHY

COURSE TEXTS

Kerber, Linda K. “The Meanings of Citizenship.” The Journal of American History 84.3 (1997): 833. Print.

In this article, Kerber offers several ways to interpret citizenship, including formal legal status, possession of guaranteed rights and bearing of obligations. She believes that the meaning of citizenship is constantly changing and proposes a new way to look at citizenship: “A braided citizenship”. Different groups of people from different genders, races, classes and nations of origin have been fighting for their equal citizenship in the U.S. Kerber analyzes each group of people’s struggle in detail to illustrate how the boundaries of citizenship have been changing overtime to support her statement.

I will use Kerber’s idea of citizenship in terms of the relations of rights and obligations to help me analyze the legitimacy of gay rights, more specifically, same-sex marriage. And by using all kinds of evidence of LGBT people’s fight for equal rights as part of the braided citizenship to justify how same-sex marriage redefines the boundaries of citizenship.

Madison, James. Federalist No. 10: “The Same Subject Continued: The Union as a Safeguard against Domestic Faction and Insurrection.”New York Daily Advertiser, November 22, 1787. Print.

In this work, Madison states that people are diverse by nature and self-interested, so that factions are formed inside every society. He argues about the need to break and control factions which he identifies as a threat to popular governments that may lead to tyranny of the majority. He believes that in a large republic government is run by representatives chosen by its people. With so many different interests and groups, it would be more difficult to form a majority faction, thus it can better guard against the dangers of tyranny of the majority and protect the rights of all its people.

I will use this resource to illustrate different groups/factions’ stances in terms of same-sex marriage, and to argue about the question: Is legalization of same-sex marriage a tyranny of the majority?

Madison, James. Federalist No. 51: “The Structure of the Government Must Furnish the Proper Checks and Balances Between the Different Departments.” New York Packet, February 8, 1788. Print.

In Federalist No. 51, James Madison addresses how the separation of powers within the government can be created under the new constitution. He believes that people are not “angels”, which means that if there isn’t any form of control over government, leaders will abuse their power. However, “Ambition must be made to counteract ambition”. By creating a system of “checks and balances”, in which the government is divided into different branches, the overlapping power between those three branches would put restrictions on government, thus preventing the misuse of powers, and protect the rights of the people.

I will draw on Madison’s idea of checks and balances inside government to argue about how different branches work to protect LGBT people’s rights. I will further consider separation of powers in terms of federalism to examine same-sex marriage court cases.

ADDITIONAL AND SUPPLEMENTARY SOURCES

Rimmerman, Craig A. The Lesbian and Gay Movements: Assimilation or Liberation? Boulder, CO: Westview, 2008. Print.

This book gives people an historical perspective to understand lesbian and gay movements. Rimmerman tackles the challenging issue of what constitutes movement effectiveness and how effective the assimilationist and liberationist strategies have been in three contentious policy arenas: the military ban, same-sex marriage, and AIDS.

I will focus on the same-sex marriage policy part of this book, using those detailed analyses of important courts cases in history to examine LGBT groups’ efforts to fight for their equal right of marriage.

“So Far, so Fast.”The Economist. The Economist Newspaper, 11 Oct. 2014. Web. 31 Mar. 2015.

This article gives a brief introduction of the progress in terms of the same-sex marriage agenda since the early 2000s, and it gives some explanations of why this agenda has changed so fast in such a short time, including the change in moral judgment and transformation of LGBT people, too.

I will use this resource in the conclusion to show why the nationwide legalization of same-sex marriage is promising.