Pride and Prejudice

The irony of the 2008 election is that while America has elected its first African American President signaling a major step forward towards what many refer to as a "post-racial" era, if you are Gay or Lesbian in America it still feels a little like 1962. Americans in three states passed ballot measures which amended state constitutions to restrict the definition of marriage to a union between a man and a woman. This eliminated the right for same sex couples to marry in those states, and potentially overturns the legitimacy of existing marriages between same sex couples which occurred in California between June and November of this year. Through Proposition 8 in California, Proposition 2 in Florida, and Proposition 102 in Arizona, citizens of these states are in point of fact writing discrimination into their state constitutions so that one group of people are denied equal protection under the law.

Separate but Not Equal

Before the Civil Rights Act of 1964, legislation of this nature was referred to as Jim Crow. Jim Crow refers to the racial caste system which operated primarily, but not exclusively in southern states, between 1877 and the mid-1960s. Under Jim Crow, African Americans were relegated to second class citizens. Jim Crow legitimized anti-Black racism. Many Christian ministers and theologians taught that Whites were the Chosen people, Blacks were cursed to be servants, and God supported racial segregation. Jim Crow supporters stated, among other things, that sexual relations between Blacks and Whites would produce a mongrel race which would destroy America.

Americans who support bans on same sex marriage say that there is no comparison between the Civil Rights Act of 1964, and the current debate. But it is important to refer back to the prior debate because the arguments being made by the proponents of the aforementioned amendments are remarkably similar. The legislated segregation prior to the Civil Rights Act of 1964 operated under the premise that black Americans could be separate but equal. But these laws relegated them to second class status in society with limited rights. In the current debate, those who support banning same sex marriage will often refer to Civil Unions as the separate but equal path available to Gays and Lesbians, suggesting that civil unions allow same sex couples to all the rights of marriage, without redefining the term -- which belongs exclusively to the union of one man and one woman. But there are key differences.

Legally, marriage is a means of establishing kinship outside of bloodline. This concept of kinship permeates society, and is embedded in Western common law as well as the laws of every nation (including more than 1,000 federal laws in the United States). Kinship conveys rights and privileges, as well as duties and even restrictions which are recognized nationally, even globally. Civil Unions provide state level protections often not recognized outside of the state, and do not offer federal protections provided to married couples. Additionally, since Civil Unions are a relatively new concept, they do not instruct business, the courts or other agencies how to apply kinship-related law to these arrangements, so these relationships inherently take on a second class status relative to legal marriages providing unequal protections.

In addition to the central problem that protections provided by civil union are not recognized from state to state, a few key differences between marriage and civil unions include:

• A United States citizen who is married can sponsor his or her non-American spouse for immigration into this country. Those with Civil Unions have no such privilege.
• Civil Unions are not recognized by the federal government, so couples would not be able to file joint-tax returns or be eligible for tax breaks or protections the government affords to married couples.
• The General Accounting Office in 1997 released a list of 1,049 benefits and protections available to heterosexual married couples. These benefits range from federal benefits, such as survivor benefits through Social Security, sick leave to care for ailing partner, tax breaks, veterans benefits and insurance breaks. They also include things like family discounts, obtaining family insurance through your employer, visiting your spouse in the hospital and making medical decisions if your partner is unable to. Civil Unions protect some of these rights, but not all of them.

The Bill of Rights, by its nature, was designed to clearly define the inalienable rights of the citizens of the United States; to prevent oppression and the violation of civil rights by the government. To amend state constitutions to restrict the rights of a class of people seems counter-intuitive to the intention of these documents and to the principles under which our nation was founded.

An Argument of Semantics

When you ask most people, they will tell you (if occasionally somewhat begrudgingly) that they have nothing against Gays and Lesbians, and that they support providing Gays and Lesbians the same rights proffered by marriage. They just don't want the term "marriage" used for these legal or ceremonial arrangements, often because in there mind, marriage throughout history has been defined as between a man and a woman. And they want to protect the sanctity of marriage. This argument inevitably takes on a religious tenor, sourced from biblical scripture and tied to the unique ability for a man and a woman to procreate. Because marriage is both a religious sacrament and a legal status, its important to separate these two issues when it comes to establishing the law. And the separation of Church and State should protect U.S. citizens from having any religious doctrine impede their rights as citizens.

Additionally, if the debate at its core comes down to the use of a word, then there is no debate at all. Unfortunately because the word marriage, as previously mentioned, is so embedded into secular law, it's almost impossible to separate the term from the rights associated with it. So to attempt to create a new term (i.e. Civil Unions) to impart those same rights to same-sex couples is illogical and impractical. The denial of the use of the term marriage for Gays and Lesbians is by its nature a denial of the legal rights imparted with that term.

Throughout history, marriage has represented an act of economics as much as, and perhaps more so, an act of love. And while it has also been recognized as a religious sacrament, it has also always carried legal rights independent of religion. The definition of marriage has evolved over the ages and adapted to societal changes. If we believe that all our citizens are created equal, that they are endowed with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness, then how can we deny this right to same sex couples who pursue the bond of marriage primarily as an expression of love and commitment.

Sanctioned Discrimination

The issue of same sex marriage is just one front on the fight for equal rights for Gays, Lesbians, Bi-sexual and Transgendered citizens. The right to openly serve in the military provides another front on which we sit back and accept the denial of basic rights. And even our most enlightened politicians skirt the issue, seen by most as a political non-starter. But you either believe the GLBT community deserves equal rights and protections or you don't. And to cede any of these rights is to be complicit in the discrimination and prejudice against these members of our citizenry. As with the Civil Rights Act of 1964, it will therefore take action from the citizenry, led by those most oppressed, to bring change. And from this election a new, re-energized movement will be born.