An Equal Right to Marry

By Dority, Barbara | The Humanist, November-December 1996 | Go to article overview

An Equal Right to Marry


Dority, Barbara, The Humanist


On May 5, 1993, the Hawaii Supreme Court held that the refusal to issue marriage licenses to same-sex couples is sex discrimination in violation of that state's constitutional guarantee of equal protection (Bachr v. Lewin). The court sent the case back to the lower court, where the state must show "compelling" reasons why only different sex couples should be permitted to marry. Failing that, the court is expected to rule that the state may no longer prohibit same-sex marriages. The six couples in this case are represented by Honolulu co counsels Dan Foley and Evan Wolfson, whose respective services have been provided through the Hawaii Equal Rights Marriage Project and the Marriage Project of the Lambda Legal Defense and Education Fund, Inc.

This carefully timed and crafted litigation is the first direct challenge to a long standing injustice in America. The status quo, which blithely denies the equal right of civil marriage to all lesbian and gay citizens, is long overdue for a change.

Today, same sex couples are not permitted to legally marry in any state--no matter how long they have been together, how committed their relationship is, or how much their families need the protections, benefits, and responsibilities that come with civil marriage.

Less than 30 years ago, interracial couples were still prohibited from legally marrying in some parts of the United States. (Some of the same discriminatory arguments are being used today to prohibit same-sex couples from participating equally in this basic civil and human right.) Marriage has also been defined in the past as a union between people of the same religion or an arrangement in which wives were the property of their husbands.

Over the years, these formerly "traditional" elements of marriage have changed to reflect the ideal of individual equality under the law. Securing same-sex marriage is, quite simply, another advance in the struggle to extend to all American citizens the equal right to enter into a contract with their life partner of choice.

Although a few religious faiths perform same sex marriage ceremonies, they have no legal recognition or legitimacy. Religion and civil marriage are two distinctly separate things. Surely this is entirely appropriate. Surely the state should not have the right to dictate for whom religious bodies may perform marriage services--just as religious institutions shouldn't dictate who may obtain a civil marriage license from the state.

In practical reality, most gay and lesbian couples assume many of the same responsibilities as married couples and are certainly more similar to their heterosexual counterparts than they are different. Regardless of sex, race, religion, or national origin, there are the day-to-day worries about paying the mortgage and what to make for dinner. Same-sex couples face the same questions about how to raise children and how to prepare for retirement.

However, same sex couples have none of the legal protections or bene fits that accompany civil marriage. In fact, despite taking responsibility for their partner's well-being--both economically and emotionally--gay couples are legally treated as nothing more than roommates. One partner is often denied visitation and involvement when the other is hospitalized. Gay couples are refused family health coverage, taxation benefits, and inheritance rights. They are also denied protection in the event of a relationship ending--sometimes resulting in a partner's children being removed by the state. Simply put, those gay couples who want or need the legal, social, and emotional security provided by marriage are denied all these benefits.

The simple point is that all Americans are entitled to equal rights under the law. As the Supreme Court ruled in May 1996, lesbians and gays cannot be denied their basic civil rights simply because of their sexual orientation. The point is that civil marriage is not a special right or commodity or an exclusive club that should be limited to some citizens; it is a fundamental right that must be available to all. …

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