SAME SEX MARRIAGE

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.