Same-Sex Marriage: A Democratic Inevitability

The movement for the legalization of same-sex marriage has often been described as the new civil rights movement of the modern United States. At first glance it certainly has the look of it, causing intense political polarization with constant appeals to fundamental rights and the social fabric of the nation. Though it lacks the violence of Birmingham, the comparison is not unfair, as same-sex marriage is increasingly considered a civil right by many Americans. Last year, a Pew Research survey showed substantial increases in support for same-sex marriage over the last decade in each generation, and for the first time in history supporters of same-sex marriage in the United States outnumber those who oppose (“Growing Support”). Even the Republican party –a staunch bastion for traditional marriage- has softened considerably on the issue. However, despite the recent swell of support for same-sex marriage, two-thirds of states still ban or limit the union and 41 percent of Americans actively oppose it (“Growing Support”). This begs the question, do those who still oppose this relatively democratic movement have a legal basis for opposing same-sex marriage? The simple answer is no, they do not. This paper will show that, despite reasonable concerns regarding the potential harm to social welfare, opponents of same-sex marriage do not have enough evidence to deny the union as democratic support for marriage equality grows.

The crux of the debate over same-sex marriage is in the justification of its status as a civil right. Supporters generally point to past court cases that have protected sexual orientation and same-sex marriage as civil liberties that the state may not infringe upon, thereby making bans on same-sex marriage unconstitutional (“Perry vs. Schwarzenegger”). Opponents usually argue that same-sex marriage has a harmful effect on society, and therefore the state has a stake in upholding laws that prohibit same-sex unions. Most of this essay will be focused on the arguments of the opposition. Given the growing democratic support of same-sex marriage, dismantling arguments that may provide legal obstacles for marriage equality is an important step in the process of legalization. Of course, there are numerous financial and moral arguments that feed into this debate, but at the heart, it is a legal debate over civil rights. Therefore, this paper will be limited to an investigation of the issues that have legal significance.

While the argument against same-sex marriage is social rather than legal, there is plenty of legal precedent for states to infringe upon personal freedoms in the interest of social welfare (Bernstein 3-4). Therefore, if opponents of same-sex marriage could demonstrate legitimate social harm, then they may have a strong claim for banning unions among homosexuals. The strongest of these claims to social harm is the destruction of marriage and the family. Opponents of gay marriage often argue that there is a culture of infidelity in the homosexual community and a lack of attachment to children that are not biological. Therefore, allowing same-sex unions would lead to the erosion of monogamy and commitment in marriage (Kurtz; Wilson 175-177). Moreover, even if homosexual marriages display the same level of commitment as heterosexual marriages, the supposedly unnatural nature of homosexual unions will have significant developmental effects on children. Both arguments rest on the assumption that marriage itself is an important pillar of social welfare. That assumption will be addressed later in the paper, but first, it is important to address the legitimacy of the claims themselves.

The first claim- that same-sex marriage would erode traditional concepts of monogamy and commitment- is probably the weaker of the two. This claim rests on the belief that same-sex couples are inherently less inclined to uphold the traditional value of sexual fidelity in marriage, and that lack of commitment may lead to polyamorous marriage and even erode the idea of parental commitment for same-sex couples. Ignoring the assumption here that a lack of sexual fidelity causes social harm, the basic claim that same-sex partners show any difference in commitment levels is simply not grounded in evidence.

Firstly, there is a recognized difference in the literature between the sexual and marital habits of same-sex couples and those of polyamorous relationships, showing that the tendencies of same-sex couples actually fall much closer to those of heterosexual couples rather than polyamorous relationships (Sheff 501). Furthermore, judicial experts have pointed out that the idea of a “slippery slope” into polygamy that legalizing same-sex marriage may cause is simply speculation and has no formal legal application (“Lithwick”). What can be used in legal arguments, however, are studies that have shown that laws permitting same-sex marriages have had no adverse effect on marriage, divorce, abortion rates, children born out of wedlock, and other negative externalities related to family values (Langbein and Yost 293). In fact, states with the highest divorce rates have typically been states that have instituted bans on same-sex marriage (Silver n.p.). This does not necessarily neutralize the claim that the institution of marriage and family values are important society, but it does show that same-sex marriage has little to no adverse effect on that institution.

The second claim- that same-sex marriages fail to provide the ideal psychological and biological scenario for child development- is a much stronger objection. The basic premise is that children have a psychological need for both a father and a mother, and therefore the ideal family situation for a child is being raised by a heterosexual, two-parent couple (McLanahan and Sandefur 38). This assumption does have a firmer base in social science, with various studies showing the negative psychological effects of both an absence of a father (Ellis et. al) and a mother (Jablonska and Lindberg 660). There is, moreover, a line of argument that targets the sexuality of children of homosexual couples, arguing that they themselves are prone toward homosexuality themselves. However, because there is little proof that homosexuality has negative effects for children other than the discrimination levied against them, judicial experts have argued that the state as no interest in promoting or discouraging any sexual orientation (Rosky 943). Therefore, the critique here will focus only on negative externalities such as tendencies toward violence, drugs, or academic performance.

The idea that children benefit from having a parent of each gender is a reasonable assumption. There are recognized behavioral differences between the sexes, and they may be able to offer a child different types of support. However, much of the research that shows disruptions in child development are due to variations in family structure that are not sex-related; overall, what benefits children the most are economic resources, parental socialization, and family stability (Brown 1063), all of which can be provided by same-sex marriage relationships. In fact, there are studies showing that same-sex couples can provide better resources and support for their children than the general population on average (Abrams and Brooks 24). The search for harm in same-sex marriages has been intense, and some note that the target interests have often modified to strengthen arguments (Joslin 86), but at best the evidence is inconclusive.

This rebuttal can be pressed even further in support of same-sex marriage. Opponents are not wrong in emphasizing the importance of marriage. Marriage stabilizes relationships, lends regularity to economic activity, promotes spending, and provides for quality childhood development. However, many same-sex couples express an interest in that same sort of stability, emphasizing the importance of the commitment of marriage and the stabilizing effect that it has on their social and economic relationships (Sheff 492). Therefore, if the research continues to show that same-sex couples can offer children the same important developmental resources, then it is logical for those who see marriage as a source of stability to encourage same-sex marriage just as they would any monogamous relationship. Not only is social welfare a bad argument to prevent the legalization of same-sex marriage, but it can also, in fact, be used as an argument in favor of legalizing unions for same-sex couples.

In a legal sense, there does not seem to be any evidence for banning the legalization of same-sex marriage based on the greater social welfare. Therefore, as support for same-sex marriage continues to grow, we should see democratic initiatives for legalization succeed as obstacles are removed. However, there is a caveat that is worth mentioning before concluding. Blocking democratic legislation that seeks to legalize same-sex marriage is different than striking down current laws that ban same-sex marriage. The place of sexual orientation in the catalog of civil rights is still being formed and striking down bans on same-sex marriage in various states is up to the jurisprudence of each state. This is happening more and more across the United States, but at the federal level, the issue is still undecided. As popular pressure builds, sexual orientation and same-sex marriage may be redefined in terms of civil rights, but at this point, there is a limited legal argument for judges to actively strike down same-sex marriage bans.

What this paper does offer, however, is a toolbox that supporters of same-sex marriage can use when confronted with arguments questioning its legality. Society is changing, and research is continuing to show that homosexuality is both an accepted and fully functional model for marriage. Though at this point same-sex marriage lacks the legal protection accorded other civil rights, the current obstacles for legislation that seeks to change that status are weak. Therefore, as support grows, same-sex marriage may become a democratic inevitability.

Works Cited

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