RSSThe Fight to Legalize Gay Marriage
Nov 09
Politics and Nation, Relationships, Society and Culture gay marriage Comments Off
Gay marriage advocates are claiming a victory in the midterm elections because Arizona affirmed the language of the state constitution that does not expressly define marriage as between a man and a woman.
Also on Election Day, seven states passed measures that did define marriage as being between a man and a woman, bringing the total number of states to have done so to twenty. The federal government currently does not recognize gay marriages. Vermont legalized civil unions, Massachusetts legalized marriage, but only among its own state residents, and no one really knows what is going to come out of New Jersey.
Gay marriage has only recently become an Election Day issue in the United States. After September 11, 2001, the lack of explicit benefits for gay couples became contentious as the government began handing out benefits to surviving spouses and survivor benefits did not automatically extend to gay partners. New York State stepped in to amend their workers’ compensation laws to allow surviving gay partners to receive compensation specifically in reaction to 9/11. The law went into effect on August 21, 2002, almost a year later (although the benefits were retroactive.)
Many institutions and companies around the country have long been writing language into their benefits packages and discrimination policies that recognizes same sex couples. The right of marriage though, carries with it two really distinct arguments. One is the benefits and ramifications of marriage that protect the legal status of the each partner, should the other die or become terminally ill, or should they dissolve the marriage. The other is more a fundamental question of equality. It is a respect issue.
The legal ramifications of denying marriage to gay couples can be severe. Although gay partners may both contribute to Social Security, without marriage, one will likely be denied surviving spouse benefits when the other dies because no legal relationship between the two existed. A gay person can be denied access to their partner during hospitalization, and will then almost certainly be excluded from any decisions regarding their partner’s care. Marriage does offer spouses legal immunity from testifying against one another in court. Inheritance issues, adoption rights, and accumulation of assets are all more consistent legal issues for couples that are married.
It is harder to argue the respect side of it because a person who refuses to accept homosexual relationships as a valid expression of love is hardly going to rush out and support gay marriage. And though it rarely ever argued this way, the other side of the marriage argument is that there are legal ways to protect your partner that do not require a marriage license. A living revocable trust can assign assets when one partner dies without going through probate court. It can designate a trustee to manage the partner’s assets and include an incapacity clause in the case she or he is unable to make sound decisions regarding the trust. The couple can establish durable power of attorney so that the partners can make health-care decisions for one another if one should become incapacitated.
A living revocable trust, power of attorney, and advanced directives can pretty well achieve the most important legal protections that are provided by marriage. (Tax status and adoption rights being the notable exceptions.) But then if gay couples really don’t need marriage to afford those legal protections, does it follow that the marriage argument comes right back to respect and acceptance?
If anything is apparent in the ensuing disagreement about legalizing gay marriage, is that gay couples bring to the table all the same precepts and expectations to marriage that straight couples do. Already in Massachusetts, gay couples were filing for divorce in days and months after marriage was legalized. And though it is really a longer conversation, divorce rates among straight couples have been consistent for more than a decade; around 40% of married individuals get divorced every year. Opponents of gay marriage tend to use the ensuing gay divorces as an argument against gay marriage, although it is really more of an indicator of our society’s attitude about divorce than anything specific to gay couples.
It is difficult for people on both sides of the issue to separate the legal issue of gay marriage from the meaningful response to homosexuality. So while the fight for gay marriage plays out in the legislative field, there is always going to a reactionary agenda to the emotional issue. That is why twenty states have amended their constitutions to define marriage as between a man and a woman when there is simply no convincing legal argument to support it. The combatants will continue to argue the equality issue back and forth from an emotional standpoint, ignoring the legal issues that are at stake. Unfortunately, even with another Election Day, it does not appear the country will move any closer to resolving the legal status of gay couples.
