In his article, “Bridge Loaf Over Troubled Waterâ€, Howard Halle suggests that same-sex marriage serves to reinforce traditional marriage values rather than usurping them as its detractors would suggest. He writes that “being free in our society doesn’t just mean having the rights to do x, y or z; it means being able to deal with tradition as one sees fit.†I recently married my same-sex partner of eight years in New Paltz and the question of tradition became a personal one. Should we each have bouquets? What decorations could we buy that didn’t say “bride and groom†on them? How could we dress as a couple without looking like twin sisters? Questions like these will continue to plague us throughout our lives together, because even while seeking to uphold the traditions of marriage, there are legal ramifications to the act of getting married. As it stands, we don’t have the “rights to do x, y, or zâ€, much less being “able to deal with tradition as one sees fit.†Even if gays and lesbians somehow manage to uphold traditional marriage values, even the religious ones, the legal foundation just isn’t there. Consistent terminology, an analysis of federal and state constitutionality, and an end to public animosity are necessary for a true foundation of gay marriage values.
Consistent terminology has been a roadblock since the early days of the gay marriage movement. In “Civil Wars: A Battle for Gay Marriageâ€, David Moats documents Vermont’s efforts towards legalizing same-sex unions and the accompanying discussion of whether the term “marriage†is necessary or whether the terms “civil union†or “domestic partnershipâ€, given with equal benefits, can confer an equally accepted status. This would suggest that an element of traditionalism in same-sex marriages exists that a “separate, but equal†designation does not provide. The lack of consistent terminology when referring to gay weddings somehow lends credence to the statement that they are not “real†weddings.
Halle states that “gays and lesbians are the true defenders of tradition in this country.†One might ask if that’s really a role gays and lesbians want to take on, considering the institution of marriage these days. To some gay couples, the phrase “traditional marriage values†conjures up images of what one might see on the controversial former FOX network show “Who Wants to Marry a Millionaire?†These couples do not want to emulate the idealism that so many heterosexual couples have about the institution of marriage that so often leads to violence or divorce. However, this decision should not detract from the right for gay couples to marry, individuals always have the right not to wed.
After posting our wedding pictures on our Web site, we encountered the sort of virulent hate postings that one might expect from such a newly controversial topic. The act of posting family pictures, in and of itself, is very traditionalist, and was clearly not intended to be a forum for political debate. One of the most vitriolic responses was that our marriage was a “shamâ€. The first step in discrediting this type of response is for the courts to conduct a thorough analysis of the federal and state constitutionality of gay marriage. One example of this analysis is the way in which Lambda Legal and the ACLU, in their suit against the state of New York, argue that preventing gay marriage in New York is unconstitutional. “Article 1, Sections 6, 8 and 11 of the New York State Constitution guarantee same-sex couples the right to marry. Because the relevant provisions of the New York State Domestic Relations Laws (the ‘DRL’) do not permit same-sex couples to marry, the statute, on its face, is unconstitutional,†the suit says (http://www.nyblade.com/2004/4-9/news/localnews/aclu.cfm). From that perspective, our affidavit of marriage is valid, or at the very least, subject to the court’s decision. We would still need to obtain a marriage license, but not having it does not render our union any less valid than a heterosexual couple failing to get this approval through a forgetful lapse. Therefore, our gay marriage in New Paltz more closely resembles civil disobedience than it does breaking the law, problematic for the government officials who participate in it, but necessary for the growth of our country and for the “living†document of our Constitution.
The phrase “traditional marriage values†can mean different things to different people. However, many people would agree that the phrase refers to the things a couple holds dear or that are important to them when they are planning a life together, things like medical care, family and economic planning. These are the “values†that have made heterosexual unions applicable to state and governmental laws. In contrast, love, procreation, religion and morality, are the “traditional marriage values†that are often cited as reasons that same-sex couples should not be allowed to marry. Heterosexual couples do not need to prove that they meet any of these criteria before they are allowed to marry. To cite these as reasons, I feel, undermines Thomas Jefferson’s concept of “separation of church and state†and the first amendment, which reads, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof..." United States constitutional amendments have most often been made to increase the rights of the population, not to limit them, as with voters’ rights for women and African-Americans. Prohibiting same-sex marriage is a violation of the free exercise clause of the Constitution because it attempts to prevent people from engaging in a religious ceremony in which three willing parties (the two being married, and the person performing the service) engage. The exception to this would be if the state has a compelling interest, in which case, the courts have held that it is legal to restrict free exercise. Here, however, there is no compelling state interest.
Finally, an end to public animosity would help strengthen gay marriage. There are an estimated 3.1 million people living together in same-sex relationships in the United States. The “traditional marriage values†that are in jeopardy for these couples are hospital visitation rights, estate, insurance and tax benefits, family leave to care for an ill spouse and immigration rights. These are legal matters, not social matters. To deny couples these rights on the basis of gender is equivalent to denying rights on the basis of skin color. To be sure, the gay marriage debate in Vermont had many parallels to previous debates as to whether interracial couples could marry. Today, few people would argue that an interracial marriage is not a valid one. Even without this precedent, there always needs to be a first when it comes to civil rights issues. Currently, gender is the sole determining factor for what constitutes a same-sex marriage rather than a traditional marriage, and even that is somewhat of an arbitrary decision. That is, the courts have already acknowledged that a transgender person can enter into a traditional, legally recognized marriage, if they’ve legally changed their gender. This begs the question, if gender is more fluid than previously thought, why would it be the deciding factor in whether to grant a union the legal status of marriage?
If gay marriage does become legally recognized, there will still be a fight against what people perceive as “traditional marriage valuesâ€, a fight to get people to recognize these unions as valid and not as “sham marriagesâ€. I believe that this will happen in time and as people learn to overcome their fears of what may be. Acceptance may precede or follow legal reform, but it is essential in upholding a given law.
