Same Sex Marriage

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by Christopher B. Gray


Same sex marriage is the contracting of marriage legally recognized by persons whose biological sexual identity is the same, that is, both male or both female. The legal problem is whether this recognition is, can be, or ought to be permitted. The issue of permission is relevant because legal marriage involves the privileging of some relationships instead of others with a relevant set of civil capacities and obligations. The reason for privileging them is because the relationship is deemed to be of sufficient value to civil society and to be sufficiently vulnerable to damage that its formation and maintenance are to be encouraged by legal facilitation and protections.

All three problems, of the “is, can and ought”, relate to the dirament impediment upon persons of the same sex to contract marriage with each other, implicitly formulated in the definition of marriage as contracted between persons of diverse sex, usually as “one man and one woman”. The problem of whether same sex marriage is permitted relates to whether there is such a definition in a given jurisdiction, or whether the failure of permission is simply an administrative lacuna. The problem of whether marriage can be so permitted relates to the interplay between such an impediment in a jurisdiction’s marriage law, and the possible provision for same sex marriage in its constitutive or constitutional law; as well, this relates to the ultimacy of judicial or of legislative authority in a given jurisdiction. The problem of whether marriage between persons of the same sex ought to be permitted has to do with public policy and its benefit or detriment from encouraging same sex relations by legally recognizing and thus privileging them.

The Definitional Issue

The first problem is of definition, and arises because the statutory instruments of a jurisdiction may not include a definition of marriage, or may not include this impediment within it. While this is less likely to occur within a civilian codification than in common law jurisprudence, even in the former the impediment may appear so obvious that the concept of legal marriage includes it although its wording does not. Other  central requirements for capacity may stand in a similar situation of implicitness: monogamy of spouses, until the challenge by poligamous religions; lifelong commitment, until confronted by generalized divorce; human personhood, until animal rights challenges. It is unlikely that mental capacity, minimum age or familial relationship could operate implicitly, however, since they require details in order for decisions to be made. This license is conceivable under the authority of customary law, or its more explicitly codified provisions for including general practice, orderly government or good morals. Whether the requirement that definition be exhaustively inclusive and exclusive of only its definiendum, clear and distinct, can still be met sufficiently in that circumstance, so that the provision need not become void for vagueness, is the problem for resolution in practice.

The Possibility Issue

The second problem, whether there can be an interface between private marriage law and public constitutional law, arises in two situations, one where the authority over the former is divided between levels of jurisdiction in the same geographical area by reason of the latter; and the other where provisions of the latter may come into conflict with the former. In the first situation, for example, jurisdiction over the formation of marriage may belong to a federal authority, while jurisdiction over its celebration belongs to a federated member. In this situation the question of sexual diversity can be considered a matter of capacity to form the contract as well as one to have it solemnized. Conflict can arise in that case between a constitutional recognition, faced with a local refusal to register purported celebrations which fail to meet legal requirements for solemnization.

The other situation is perhaps the more frequently met. Not a constitution’s provision under constitutive law is involved, but a provision of its aspirational law, often found in its bill or charter of  human rights. Several different rights may be at issue: security protections; religious freedoms; associational freedoms; and most famously among others, the right to equality. Regarding security, the institutional holding of marital status if not particular benefits by persons already married, as well as endowment of its availability upon their heirs, is claimed to be destroyed by its redefinition; same sexed claimants to that status urge that its definition is extensionally enlarged, not intensionally undone. Regarding association, the loss of a significant form of association when it is changed to involve like sexed aspirants is claimed to be a closure that illegitimately restricts freedom to an association between diversely sexed persons; opposed claimants maintain that their freedom to associate by means of  marriage is infringed when they are defined out of it. Religious freedom is put into play by claims that the embrace of same sex marriage by some religions needs legal protection, as well as that religious freedom requires that the law not favor the tenets of another religious group’s doctrine over one’s own, or none; and by those other religious groups’ claims to the contrary, that the availability of legal validity for their marriages with sexual diversity is made unavailable by its legal replacement, and that such a policy is not religiously neutral but adopts a new religious policy over one long established by civil policy.

Equality Rights

The most frequent rights issue, however, relates to equality. The principal claim is that the impediment to marriage from lack of sexual diversity creates a discrimination on grounds of sexual orientation that amounts to an infringement of the right to equal treatment by and under the law. The legal  right to equality can be contingent upon some specified treatment, e.g, in the forming of contracts, or can stand alone in any legal relation;  it can be available to persons as members only of specified groups, e.g., in terms of sexual orientation, or to all persons regardless of affinities. The latter is the less frequent arrangement, because equality rights’ scope would surpass the capacity of legal institutions to deal with  it, and require limitations sub rosa instead of overtly. The claim upon equality in the issue of same sex marriage is that a privilege  provided to some citizens is withheld from others; the legal protection of marital relationship is made unavailable to persons of like sexual orientation.

The debate falls into repeated patterns. The impediment is not cast in terms of sexual orientation, but in terms of sex, since persons oriented sexually the same can marry, only not someone of the same sex; but this is not a discrimination that is prohibited. The reply is that the discrimination in terms of orientation is consequential, in that the impediment affects only same sex aspirants to marriage, since persons of diverse sexual orientation do not seek to marry persons of the same sex. If this has weight, it will be only in jurisdictions where systemic and not only direct discrimination is recognized as grounds for complaint.

Another typical dispute concerns the provision of alternatives which render the distinction no longer detrimental. Thus when not only all the tangible legal benefits of marriage in terms of taxation, inheritance, health care, etc. are opened to same sex couples, but also several alternative statuses are available which institutionalize those protections, such as domestic partnerships, civil unions and other arrangements varying by jurisdiction, then there is no detriment in defining marriage so as to exclude same sex applicants. The reply is that this provision of arrangements the same in all but identity of status is conceptually unable to succeed, since it invokes the famous “separate but equal” doctrine rejected as to discrimination by race in marriage, or miscegenation, in American federal law by Loving v. Virginia. The counterclaim is that the Loving case reopened marriage to its full definition without inessential racial incidents, whereas the definition of marriage in terms of sexual diversity is of the essence perfecting marriage, so that the exclusion of gender identity cannot be discriminatory in any detrimental way. (1300)

Further, the status of the definition of marriage becomes central to this debate. Claimants that the requirement of sexual diversity infringes their right to equality, urge that the traditional definition of marriage excludes them from legal benefits available to diversely sexed couples. The reply is that the definition of marriage encompasses in the institution only those diversely sexed; to include like sexed persons would not be simply to expand the institution, but to terminate one and to found another different one. Instead, to keep marriage for male and female is to preserve marriage in the only form it can have; the exclusion of others is not, then, a deprivation of their equality rights, but is an acknowledgement of  relevant difference where it is found. The response by same sex advocates to that claim is that the difference is irrelevant to the character of marriage, or not sufficiently relevant to allow an exclusion to be based upon it.

The Desirability Issue

It is here that the third problem as to this issue comes into play: whether sexual unions between same sexed partners ought to be given the legal recognition of marriage. This question seeks grounds of good public policy for providing or withholding that recognition. The public benefits and detriments are located with the partners, with the familial units of partners, parents and offspring, and with the social milieu, including private international law.

Once the issues of same sex partners’ equal standing to receive the various concrete benefits canvassed above is settled, the benefit of legal marriage to partners is primarily their gain in a sense of validation for their persons and mores; and that the generalised scorn toward homosexuals will be further erased by their admission to this reserved core of heterosexuality. The reply is that facilitating equanimity is too individualised ever to be the business of law; that scornful attitudes towards homosexuality have nearly evaporated in the face of its mainstreaming, while access to marriage will aggravate them; and that have holding inappropriate positions in society is the route to self-loathing, not to healing.

Benefits to the familial institution are likewise disputed; while various research projects are underway to determine their achievement, purportedly solid social scientific information is still scarce and, in the view of advocates of both solutions, would be determinative of policy only if it could be turned into favor for their case. Benefits to the partners, to the institution and to its offspring are at issue. While it is claimed of partners that the proliferation of unattached and free-floating adults in society is undesirable but is remedied by allowing them to marry each other, the reply is made that the stability achieved is unreliable since promiscuity is a constitutive and important feature of same sex culture, and is incompatible with the stable marriages; this has relevance to general public policy, only, not to exceptional cases.

The familial institution itself is claimed to be benefited by same sex marriage, since the oppressive paternalism among traditional family roles cannot be maintained; as well, the fidelity of same sex families is a benefit and not a detriment to the dignity and worth of marriage. Apart from the waning of that offending model, the response is made that the definitional sterility of same sex unions is identified as incompatible with the procreative vocation of penile-vaginal sexual expression. This point quickly turns into a discussion of public policy related to children.

The child of a same sex union cannot be offspring of both partners to it. The exception is nucleonic cell implantation, the procedure whose public cost could become a matter of right for partners seeking the procedure. Otherwise, the children of partners, if not the offspring of a blended family, must be genetically detached from one or both of their parents, in order to be children of the same sex couple in such as a marriage; detachment from one’s genetic inheritance, or from knowledge of it, is considered a detriment to the child. Thus, as well, the resistance to permitting adoption by same sex partners of each other’s child or of other people’s. The response to this is that fertility treatment is not everywhere an entitlement under public medical insurance, even for diversely sexed couples; and that the child’s rearing is more relevant to his well-being than his genetic endowment.

As well, the rearing of a child  by same sexed partners is alleged to be a detriment to it, due to the absence of sexually different role models for the child, inducing an atrophied appreciation of male and female realities, with their interaction, and a greater likelihood induce same sex attractions in the next generation. This is an expansion of the critique of the relationship itself, that same sex partnering fails to bridge the gender gap, and encases partners into a same sex ghetto. The reply is offered that single parenting and so same sex parenting is already widespread, that sex role appreciations and choices are unaffected, and that same sex proliferation in succeeding generation is not a public detriment. The little research completed is not conclusive on these questions yet.

The fundamental objection to same sex marriage by reason of public detriment is attached to the definitional obstacle, that marriage is a union for the purpose not only of mutual support but of procreation,  the outcome of diversely sexed intercourse only; and in turn for the purpose of rearing of its offspring. The reply to this has been that alternative purposes suffice for legal protection, that other means of procreation are available, and that many diversely sexed marriages are infertile, too, whether throughout, or terminally, or periodically. The response to these replies has been that other institutions suffice for the other purposes, that nuclear implantation or adoption have the problems identified above, and that the exceptional infertility of singular cases does not change the standard fertility solely and usually of diversely sexed unions.

Societal Impact

The detriments alleged for society at large from same sex marriages include not only all of the harms alleged above, once “writ large,” but also the further decimation of marriage as institution. Anticipation of plural marriages, between one or each partner with other partners, already has full place in the discussion, in favor or against them, as is expectation for the legal insupportability of various incest restrictions. Only slightly less acknowledged is the case against legal age restrictions below those needed for any contract, or else their substitution by vicarious engagements with the minors’ guardians as principals. Less openly admitted, yet, is the extension of legal marriage by vicarious principals to human-brute or brute-brute sexual unions. First to go, however, would of course be limitation of marriages to unions without term, still the requirement for their formation even in the face of widespread and easy divorce. In each change of definition, or failure of exclusion, the characterization of marriage as an institution with sufficient public benefit to require public definition and regulation, is substituted by its recharacterization as a private contract with interest only for the parties.

While the likelihood for these changes to traditional marriage being outcomes from legalizing same sex marriage is as disputed as is their desirability, all are related to this stimulant by their several interest groups. This is because once the argument is accepted that equality rights are violated by exclusions associated more with tradition, even religious tradition, however longstanding, than with social scientific verities, then the only obstacle to legalizing marriage in these several deviant forms is the balance of costs and benefits primarily between parties, and only secondarily at large. Not a slippery slope, this is a sound conclusion from legal principle. The consequence is seldom resisted; the difference of opinion revolves around its desirability or not.

The procedural dimension of the debate on public benefit is that, since marriage is not an institution of international law, its portability is not ensured. While rules of private international law attribute decisions about the formation of marriage to its place of celebration, this would not save a same sex marriage celebrated legitimately in one jurisdiction, perhaps even any of its marriages, in the face of a foreign jurisdiction that refuses to legitimate these as marriages. Such a jurisdiction would likely invoke a public order authorization in order to refuse such marriages performed elsewhere, since it refuses any such among its own on that ground. Failure of transportability influences people’s decisions about moving at all, as well as the legitimacy of their children as heirs, their access as non-spouses to such benefits as public insurance and inheritance, and even their access to divorce from marriage. The reply to these warnings is that good sense would prevail, changes can be made, exceptions can be tolerated; and that the same problem would occur if the world of marriage were reversed, and the jurisdictions legitimating only diversely sexed marriage was in the minority.

The covering debate to these particular debates on public policy concerns the precautionary principle of both scientific and social innovation, whether changing longstanding if not immemorial public practice, when its detriments are not overwhelming, without a well-founded likelihood for knowledge of its outcomes, is a good idea; or, “should you overdrive your headlights?” The reply of critical theory to this warning is that public policy should be governed by uprightness, not by decisionist predictions; or, “fiat justitia, ruat caelum.” The response to the reply is that uprightness lies on the other side.

Bibliography

Baird, Robert M., Stuart E. Rosenbaum, eds. Same-Sex Marriage: The Moral and Legal Debate. Amherst NY: Prometheus Books, 1997. (balanced presentation of opposed positions)

Boele-Woelke, Katharina, Angelika Fuchs, eds. Legal Recognition of Same-Sex Couples in Europe. Antwerp: Intersentia, 2003. (Danish, Finnish, Swedish, Netherlandic, Spanish, French, German positions on marriage and partnerships, and EC’s and UK’s on homosexuality, are surveyed, including the private international law consequences.

Borello, Daniel. “Pluralisme conjugale ou Hiérarchie des sexualités; la reconnaissance juridique des couples homosexuels dans l’union Européenne. McGill Law Journal 46.4 (2001) 855-922.

Chartier, Gary. “Natural Law, Same Sex Marriage, and the Politics of Virtue.” UCLA Law Review 48.6 (2001) 1593-1632. (contrasts with Strasser article)

Coolidge, David Orgon. “Playing the Loving (Loving v Virginia, 87 S. Ct. 18187 (1967)) Card: Same Sex Marriage and the Politics of Analogy.” Brigham Young University Journal of Public Law 12.2 (1999) 201-332 (opposed, compare to Ross)

Culhane, John G. “A ‘Clanging Silence’: Same Sex Couples and Tort Law.” Kentucky Law Journal 89.4 (2000/1) 911-996. (an overlooked dimension of the debate)

Donovan, James M. “Rock-salting the Slippery Slope; Why Same Sex Marriage is not a Commitment to Poligamy.” Northern Kentucky Law Review 29.3 (2002) 521-590. (favorable, discounts legal precedent)

Eskridge, William N., Jr. The Case for Same Sex Marriage; From Sexual Liberty to Civilized Commitment. New York: Free Press, 1996. (favorable)

Foley, E. B. “Deliberative Democracy, Overlapping Consensus, and Same-Sex Marriage.” Fordham Law Review 66.4 (1998) 1195-1211. (setting the issue into the Rawls-Habermas jurisprudential debate)

Fruehwald, Scott. “Choice of Law and Same Sex Marriage.” University of Florida Law Review 51.5 (1999) 799-880. (favorable, part of the conflict of laws rationale)

Gray, Christopher B. “’The Essence of Marriage’: The Very Idea.” Revue générale de droit 34.3 (2004) (U. Ottawa) forthcoming. (opposed, defending against essentialism)

Gray, Christopher B. “Marriage, the Law, and Same Sex Unions.” Revue générale de droit 30 (1999/2000) (U. Ottawa) 583 (opposed, on various legal grounds

Marty-Schmid, Helen. La situation patrimoniale des concubins à la fin de l’union libre; étude des droits suisse, français et allemand. Genève: Droz, 1986. (chapters on both private contractual regimes, and public alternatives)

Merin, Yuval. Equality for Same-Sex couples: The Legal Recognition of Gay Partnerships in Europe and United States. U. Chicago Press, 2002. (favorable, focus mostly upon alternatives to marriage)

Myers, Richard S. “Same Sex Marriage and the Public Policy Doctrine.” Creighton Law Review 32.1 (1998) 45-66. (favorable, discounting obstacles to foreign recognition, like Fruewald)

n. a. “Judicial Foundations of the Opposition of the Holy See to Same Sex Unions: Sexual Orientation in Decisions of the Tribunal of the Roman Rota.” The Jurist 62.2 (2002 341-377. (opposed; canon law rationales, not simply moral ones)

n. ed. Des concubinages; Droit interne, droit international, droit comparé. Paris: Litec, 2002 (attitude varies by author, focus mostly upon alternative to marriage, half on France, the rest on Italy, Japan, Belgium, Scandinavia)

Ross, Josephine. “Riddle for our Times: The Continued Refusal to Apply the Miscegenation Analogy to Same Sex Marriage.” Rutgers Law Review 54.4 (2002) 999-1019. (favorable, compare to Coolidge)

Rubellin-Devichi, Jacqueline, ed. Les concubinages en Europe. Paris: C.N.R.S., 1989. (German, English, Belgian, Spanish, Greek, Italian, Dutch, Scandinavian, Swiss, Eastern European situations are surveyed)

Silverman, Lewis A. “’Suffer the Little Children’: Justifying Same Sex Marriage from the Perspective of a Child of the Union.” West Virginia Law Review 102.2 (1999) 411-458.

Strasser, Mark P. “natural Law and Same Sex Marriage.” DePaul Law Review 48.1 (1998) 51-81. (favorable, the philosophical side of his jurisprudence, contrast with Chartier)

Strasser, Mark. On Same-Sex Marriage, Civil Unions, and the Rule of Law; Constitutional Interpretation at the Crossroads. Westport CT: Praeger, 2002. (supportive, handling issues of U.S.A. law such as equal benefits, retroactivity, free exercise, equal protection, privacy)

Sullivan, Andrew, ed. Same-Sex Marriage: Pro and Con. New York: Random House, 1997. (favorable, with fair presentation of several sides in the debate)

Symposia: Brigham Young University Journal of Public Law 188.2 (2004), including Lynn Wardle, “The Case Against in Canada: Law and Public Policy,” 479-; Alberta Law Review 41.2 (2003); Capital University Law Review 31.4 (2003); Widener Journal of Public Law 11.3 (2002).

Wardle, Lynn D. “’Multiply and Replenish:” Considering Same Sex Marriage in the Light of State Interests in Marital Procreation. Harvard Journal of Law and Public Policy 24.3 (2001) 771-814. (the procreative rationale; one of the few contrary positions in law journals, with Coolidge and Gray)

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