SAME-SEX
MARRIAGE
Same-sex marriage (also known as gay
marriage) is the marriage of a same-sex couple, entered into in a civil or
religious ceremony. The term marriage equality refers to a political status in
which the marriages of same-sex couples and the marriages of opposite-sex
couples are recognized as equal by the law.
As of 2018, same-sex marriage is
performed and recognized by law (nationwide or in some jurisdictions) in
Argentina, Australia, Belgium, Brazil, Canada, Colombia, Denmark, Finland, France,
Germany, Iceland, Ireland, Luxembourg, Malta, Mexico,[a] the Netherlands,[b]
New Zealand,[c] Norway, Portugal, South Africa, Spain, Sweden, the United
Kingdom,[d] the United States,[e] and Uruguay. Additionally, Armenia, Estonia
and Israel recognize the marriages of same-sex couples validly entered into in
other countries. Same-sex marriage is also due to soon become performed and
recognized by law in Austria, Costa Rica, and Taiwan.[f][1] Furthermore, the
Inter-American Court of Human Rights has issued a ruling which is expected to
facilitate recognition in several countries in the Americas.
The introduction of same-sex marriage
has varied by jurisdiction, being variously accomplished through legislative
change to marriage law, an apex court ruling based on constitutional guarantees
of equality, by recognition that the existing marriage laws did not prevent
it,[3] or by direct popular vote (via referenda and initiatives). The
recognition of same-sex marriage is considered to be a human right and a civil
right as well as a political, social, and religious issue.[4] The most
prominent supporters of same-sex marriage are human rights and civil rights
organizations as well as the medical and scientific communities, while the most
prominent opponents are religious groups. Polls consistently show continually
rising support for the recognition of same-sex marriage in all developed
democracies and in some developing democracies.
Scientific studies show that the
financial, psychological, and physical well-being of gay people are enhanced by
marriage, and that the children of same-sex parents benefit from being raised
by married same-sex couples within a marital union that is recognized by law
and supported by societal institutions.[5] Social science research indicates
that the exclusion of homosexuals from marriage stigmatizes and invites public
discrimination against them, with research also rejecting the notion that
either civilization or viable social orders depend upon restricting marriage to
heterosexuals.[6] Same-sex marriage can provide those in committed same-sex
relationships with relevant government services and make financial demands on
them comparable to that required of those in opposite-sex marriages, and also
gives them legal protections such as inheritance and hospital visitation
rights.[7]
Opposition to same-sex marriage is
based in part on beliefs that homosexuality is unnatural and abnormal, that the
recognition of same-sex unions will promote homosexuality in society, and that
children are better off when raised by opposite-sex couples.[8] These claims
are refuted by science which shows that homosexuality is a natural and normal
human sexuality, that sexual orientation cannot be chosen, and that the
children of same-sex couples fare just as well or even better than the children
of opposite-sex couples.
A study of nationwide data from across
the United States from January 1999 to December 2015 revealed that the
establishment of same-sex marriage is associated with a significant reduction
in the rate of attempted suicide among children, with the effect being
concentrated among children of a minority sexual orientation, resulting in
approximately 134,000 fewer children attempting suicide each year in the United
States.
Alternative terms
Some proponents of legal recognition
of same-sex marriage, such as Freedom to Marry and Canadians for Equal
Marriage, use the terms marriage equality and equal marriage to indicate that
they seek the recognition of same-sex marriage on equal ground with opposite-sex
marriage as opposed to special rights.
The AP Stylebook recommends the usage
of the phrase marriage for gays and lesbians or the term gay marriage in
space-limited headlines. The Associated Press warns that the construct gay
marriage can imply that the marriages of same-sex couples are somehow different
from the marriages of opposite-sex couples.
Use of the term marriage
Anthropologists have struggled to
determine a definition of marriage that absorbs commonalities of the social
construct across cultures around the world.[19][20] Many proposed definitions
have been criticized for failing to recognize the existence of same-sex
marriage in some cultures, including in more than 30 African cultures, such as
the Kikuyu and Nuer.
With several countries revising their
marriage laws to recognize same-sex couples in the 21st century, all major
English dictionaries have revised their definition of the word marriage to
either drop gender specifications or supplement them with secondary definitions
to include gender-neutral language or explicit recognition of same-sex
unions.[23][24] The Oxford English Dictionary has recognized same-sex marriage
since 2000.
Opponents of same-sex marriage, who
want marriage to be restricted to heterosexuals, such as The Church of Jesus
Christ of Latter-day Saints, the Catholic Church, and the Southern Baptist
Convention, use the term traditional marriage to mean opposite-sex marriage
Some scholars, most notably the Yale
professor and historian John Boswell (1947–94), have argued that same-sex
unions were recognized by the Roman Catholic Church in medieval Europe,
although others have disputed this claim. Scholars and the general public
became increasingly interested in the issue during the late 20th century, a
period when attitudes toward homosexuality and laws regulating homosexual
behaviour were liberalized, particularly in western Europe and the United
States.
The issue of same-sex marriage
frequently sparked emotional and political clashes between supporters and
opponents. By the early 21st century, several jurisdictions, both at the
national and subnational levels, had legalized same-sex marriage; in other
jurisdictions, constitutional measures were adopted to prevent same-sex
marriages from being sanctioned, or laws were enacted that refused to recognize
such marriages performed elsewhere. That the same act was evaluated so
differently by various groups indicates its importance as a social issue in the
early 21st century; it also demonstrates the extent to which cultural diversity
persisted both within and among countries. For tables on same-sex marriage
around the world, in the United States, and in Australia, see below.
Religious
And Secular Expectations Of Marriage And Sexuality
Over time the historical and
traditional cultures originally recorded by the likes of Bachofen and Morgan
slowly succumbed to the homogenization imposed by colonialism. Although a
multiplicity of marriage practices once existed, conquering nations typically
forced local cultures to conform to colonial belief and administrative systems.
Whether Egyptian, Vijayanagaran, Roman, Ottoman, Mongol, Chinese, European, or
other, empires have long fostered (or, in some cases, imposed) the widespread
adoption of a relatively small number of religious and legal systems. By the
late 20th and early 21st centuries, the perspectives of one or more of the
world religions—Buddhism, Hinduism, Judaism, Islam, and Christianity—and their
associated civil practices were often invoked during national discussions of
same-sex marriage.
Perhaps because systems of religion
and systems of civil authority often reflect and support each other, the
countries that had reached consensus on the issue by the early 2000s tended to
have a single dominant religious affiliation across the population; many such
places had a single, state-sponsored religion. This was the case in both Iran,
where a strong Muslim theocracy had criminalized same-sex intimacy, and
Denmark, where the findings of a conference of Evangelical Lutheran bishops
(representing the state religion) had helped smooth the way for the first
national recognition of same-sex relationships through registered partnerships.
In other cases, the cultural homogeneity supported by the dominant religion did
not result in the application of doctrine to the civic realm but may
nonetheless have fostered a smoother series of discussions among the citizenry:
Belgium and Spain had legalized same-sex marriage, for instance, despite
official opposition from their predominant religious institution, the Roman
Catholic Church.
The existence of religious pluralities
within a country seems to have had a less determinate effect on the outcome of
same-sex marriage debates. In some such countries, including the United States,
consensus on this issue was difficult to reach. On the other hand, the
Netherlands—the first country to grant equal marriage rights to same-sex
couples (2001)—was religiously diverse, as was Canada, which did so in 2005.
Most of the world religions have at
some points in their histories opposed same-sex marriage for one or more of the
following stated reasons: homosexual acts violate natural law or divine
intentions and are therefore immoral; passages in sacred texts condemn
homosexual acts; and religious tradition recognizes only the marriage of one
man and one woman as valid. In the early 21st century, however, Judaism,
Christianity, Hinduism, and Buddhism all spoke with more than one voice on this
issue. Orthodox Judaism opposed same-sex marriage, while the Reform,
Reconstructionist, and Conservative traditions allowed for it. Most Christian
denominations opposed it, while the United Church of Christ, the United Church
of Canada, and the Religious Society of Friends (Quakers) took a more
favourable stand or allowed individual churches autonomy in the matter. The
Unitarian Universalist churches and the gay-oriented Universal Fellowship of
Metropolitan Community Churches fully accepted same-sex marriage. Hinduism,
without a sole leader or hierarchy, allowed some Hindus to accept the practice
while others were virulently opposed. The three major schools of
Buddhism—Theravada, Mahayana, and Vajrayana—stressed the attainment of
enlightenment as a basic theme; most Buddhist literature therefore viewed all
marriage as a choice between the two individuals involved.
Sexuality is but one of many areas
where religious and civic authority interact; definitions of the purpose of
marriage is another. In one view, the purpose of marriage is to ensure
successful procreation and child rearing. In another, marriage provides a—and
perhaps “the”—fundamental building block of stable communities, with
procreation as an incidental by-product. A third perspective holds that
marriage is an instrument of societal domination and so is not desirable. A
fourth is that relationships between consenting adults should not be regulated
by the government. Although most religions subscribe to just one of these
beliefs, it is not uncommon for two or more viewpoints to coexist within a
given society.
Proponents of the first view believe
that the primary goal of marriage is to provide a relatively uniform social
institution through which to produce and raise children. In their view, because
male and female are both necessary for procreation, the privileges of marriage
should be available only to opposite-sex couples. In other words, partnerships
involving sexual intimacy should have at least a notional potential for
procreation. From this perspective, the movement to legally recognize same-sex
marriage is a misguided attempt to deny the social, moral, and biological
distinctions that foster the continued existence of society and so should be
discouraged.
Because this view considers biological
reproduction a sort of social obligation, its advocates tended to frame
individuals’ legal and moral commitment to one another as a matter of genetic
relatedness. In cases of inheritance or custody, for instance, they generally
defined the parents’ legal duties to their biological children differently than
those to their stepchildren. Among groups who feel strongly that same-sex
marriage is problematic, there is also a tendency for the legal relationships
of spouses, parents, and children to converge. Typically, these societies
provide for the automatic inheritance of property between spouses, and between
parents and children, and allow these close kin to co-own property without
joint ownership contracts. In addition, such societies often allow close kin a
variety of automatic privileges such as sponsoring immigration visas or making
medical decisions for one another; for those with whom one shares no close kin
relationship, these privileges typically require legal interventions. Such
legal circumventions are usually more difficult for, and in some cases even
prohibited to, same-sex couples.
In contrast to the procreative model
of marriage, advocates of the legalization of same-sex marriage generally
believed that committed partnerships involving sexual intimacy are valuable
because they draw people together to a singular degree and in singular ways. In
this view, such relationships are intrinsically worthy while also quite
distinct from (though not incompatible with) activities associated with the
bearing or raising of children. Sexual partnerships are one of a number of
factors that bond adults together into stable household units. These
households, in turn, form the foundation of a productive society—a society in
which, albeit incidentally, children, elders, and others who may be relatively
powerless are likely to be protected.
From this perspective, the devaluation
of same-sex intimacy is immoral because it constitutes arbitrary and irrational
discrimination, thereby damaging the community. Most same-sex marriage
advocates further held that international human rights legislation provided a
universal franchise to equal treatment under the law. Thus, prohibiting a
specific group from the full rights of marriage was illegally discriminatory.
For advocates of the community-benefit perspective, all the legal perquisites
associated with heterosexual marriage should be available to any committed
couple.
In contrast to these positions,
self-identified “queer” theorists and activists sought to deconstruct the
paired oppositional categories common in discussions of biology, gender, and
sexuality (e.g., male-female, man-woman, gay-straight) and to replace these
with categories or continua that they believed better reflect the actual
practices of humanity. Queer advocates contended that marriage is an
institution of “hetero-normality” that forces individuals into ill-fitting
cultural categories and demonizes those who refuse to accept those categories.
For these reasons, they maintained that consensual intimacy between adults
should not be regulated and that marriage should be disestablished as a
cultural institution.
A fourth view, libertarianism, had
different premises from queer theory but somewhat similar ramifications; it
proposed that government powers should be strictly limited, generally to the
tasks of maintaining civil order, infrastructure, and defense. For libertarians,
marriage legislation of any sort—either the legalization or the prohibition of
same-sex marriage—fell outside of the role of government and was unacceptable.
As a result, many libertarians believed that marriage should be “privatized”
(i.e., removed from government regulation) and that citizens should be able to
form partnerships of their choosing.
Same-Sex
Marriage And The Law
Societies have resolved the
intertwined issues of sexuality, reproduction, and marriage in myriad ways.
Their responses regarding the morality, desirability, and administrative
perquisites of same-sex partnerships have been equally diverse. Notably,
however, by the beginning of the 21st century most countries opted for one of
only three legal resolutions to these intersecting problems: to ignore same-sex
partnerships, to criminalize them, or to grant them a status similar or equal
to that of heterosexual marriage. Many countries have yet to reach a consensus
on these issues. (See also marriage law.)
As noted above, many societies
traditionally chose to ignore the issue of same-sex marriage by treating
same-sex intimacy as a subject unsuitable for discussion. Many of these
jurisdictions, as well as those that actively criminalize same-sex unions,
contended that homosexuality and lesbianism are mental disorders and built
their public policies on this premise. In treating same-sex desire as a
psychiatric illness, these cultures moved same-sex intimacy and marriage from
the realm of civil regulations (the domain of contract law) to that of public
safety (the domain of criminal law). In such societies, the possibility of
arrest or institutionalization further reinforced taboos on same-sex intimacy
and discussions thereof, typically driving such activities underground.
International
In the early 21st century the
countries that most seriously penalized same-sex relations tended to be in
deeply conservative regions of the world, particularly Islamic theocracies and
some parts of Asia and Africa. They often proscribed behaviours that other
countries viewed as subject to moral, rather than legal, regulation. The
judicial systems of many predominantly Muslim countries, for instance, invoke
Islamic law (Sharīʿah) in a wide
range of contexts. A variety of sexual or quasi-sexual acts, usually including
same-sex intimacy, were criminalized in these countries, and the penalties for
these acts could be as severe as execution. However, in a notable show of
support for transgender individuals in the late 20th century, Iranian Ayatollah
Ruhollah Khomeini issued a legal decree, or fatwa, supporting
gender-reassignment surgery when undertaken by individuals who wished to “fix”
their physiology and thus become heterosexual in the eyes of the law.
In contrast, the acceptance of
same-sex partnerships was particularly apparent in northern Europe and in
countries with cultural ties to that region. In 1989 Denmark became the first
country to establish registered partnerships—an attenuated version of
marriage—for same-sex couples. Soon thereafter similar laws, generally using
specific vocabulary (e.g., civil union, civil partnership, domestic
partnership, registered partnership) to differentiate same-sex unions from
heterosexual marriages, went into effect in Norway (1993), Sweden (1995),
Iceland (1996), the Netherlands (1998), and elsewhere in Europe, including the
United Kingdom (2005) and Ireland (2011).
Interestingly—and perhaps as a
reflection of tensions between the marriage-for-procreation and
marriage-for-community-good positions discussed above—many European countries
initially prevented same-sex couples from adoption and artificial insemination;
by 2007, however, most of these restrictions had been removed. Outside Europe,
some jurisdictions also adopted some form of same-sex partnership rights;
Israel recognized common-law same-sex marriage in the mid-1990s (the Israeli
Supreme Court further ruled in 2006 that same-sex marriages performed abroad
should be recognized), and same-sex civil unions went into effect in New
Zealand (2005) and in parts of Argentina, Australia, Brazil, and Mexico in the
early 21st century. In 2007 Uruguay became the first Latin American country to
legalize same-sex civil unions nationwide; the legislation became effective the
following year.
Some jurisdictions opted to specifically
apply the honorific of “marriage” to same-sex as well as heterosexual unions.
In 2000 the Netherlands revised its same-sex partnership law and the following
year became the first country to offer marriage to same-sex couples; several
other European countries subsequently legalized gay marriage. In 2003 the
European Union mandated that all of its members pass laws recognizing the
same-sex marriages of fellow EU countries. As countries began to legalize
same-sex partnerships, public opinion, particularly in Europe, began to shift
in favour of full marriage rights for same-sex unions. For example, by the
middle of the first decade of the 2000s, a Eurobarometer poll (carried out by
the European Commission) found that four-fifths of the citizens of the
Netherlands felt that same-sex marriage should be legal throughout Europe; in a
further seven countries (Sweden, Denmark, Belgium, Luxembourg, Spain, Germany,
and the Czech Republic), a majority held a similar view. Nevertheless, in other
parts of Europe, particularly central and southern Europe, support for same-sex
marriage was quite low, often with fewer than one-fifth of those polled
favouring legalization. By the following decade, polls indicated that roughly
one-half of British citizens approved of legalizing same-sex marriage in the
United Kingdom; such marriages were legalized in England and Wales in 2013, and
Scotland followed suit in 2014
In 2005 Canada became the first
country outside Europe to pass legislation legalizing same-sex marriage. Thereafter,
South Africa (2006) and Argentina (2010) were the first African and Latin
American countries, respectively, to legalize same-sex marriage. New Zealand
(2013) became the first country in Oceania to do so. Elsewhere, Bermuda
legalized same-sex marriage in 2017, but the following year it passed a bill
that replaced such marriages with domestic partnerships. Bermuda thus became
the first country to repeal same-sex marriage.
In other countries, decisions on
same-sex marriage were effectively turned over to individual states or
districts. In 2009 the Federal District (Mexico City), separate from other
Mexican jurisdictions, legalized same-sex marriage. Soon after the law went
into effect in 2010, Mexico’s Supreme Court ruled that it was constitutional and
that all states in the country had to recognize same-sex marriages performed in
Mexico City. Gay marriage was later made legal, under the same terms, elsewhere
in the country. Similarly, shortly after Brazil legalized same-sex civil unions
in 2011, the Supreme Federal Court ruled that sexual orientation could not be a
pretext for denying a couple the legal protections of marriage, although it
stopped short of specifically authorizing same-sex marriage at the federal
level. In response, several Brazilian states separately opted to allow for
same-sex marriages, which were considered valid throughout Brazil, before the
National Council of Justice approved a resolution in 2013 ensuring that such
unions could be registered anywhere in the country. Also in 2013, the
Australian Capital Territory became the first jurisdiction in Australia to pass
a law permitting the marriage of same-sex couples, although Australia’s High
Court later struck down the law within days of its having taken effect. In 2017
a majority of Australians voted for same-sex marriage in a nonbinding
referendum. Shortly thereafter the country’s Parliament passed legislation
legalizing same-sex marriage, and it was signed into law in December 2017.
The
Future Of Same-Sex Marriage
At the turn of the 21st century it was
clear that the evolution of rights for same-sex couples depended to a great
extent upon the interplay of a country’s institutional forces. In parliamentary
unitary systems, such as those of the Netherlands, Spain, and the United
Kingdom, for example, legislatures (and the executives derived from them) were
instrumental in the success or failure of such laws. In other countries,
particularly those with federal political systems and strong judiciaries, such
as Canada, South Africa, and the United States, the courts played a vital role.
For yet another group of polities, such as Switzerland and many U.S. states,
institutional rules enabled voters to take a direct role in the passage or
rejection of legislation.
In countries where consensus has yet
to be reached on this issue, the debate is unlikely to be resolved quickly or
easily. In some parts of the world, such as those plagued by war or natural
disasters, same-sex marriage is simply not an urgent matter. In others, the
broad spectrum of notions about sexuality and the purpose of marriage is
compounded by national pluralism and a tendency for secularism and religiosity
to intersect in complex and unexpected ways.
Thanks
 | |
| Omar Colmenares Trujillo. |
