should gay marriage be legalized in the country argumentative essay

Should Gay Marriage Be Legal?

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On June 26, 2015, the US Supreme Court ruled that gay marriage is a right protected by the US Constitution in all 50 states. Prior to their decision, same-sex marriage was already legal in 37 states and Washington DC, but was banned in the remaining 13. US public opinion had shifted significantly over the years, from 27% approval of gay marriage in 1996 to 55% in 2015, the year it became legal throughout the United States, to 61% in 2019.

Proponents of legal gay marriage contend that gay marriage bans are discriminatory and unconstitutional, and that same-sex couples should have access to all the benefits enjoyed by different-sex couples.

Opponents contend that marriage has traditionally been defined as being between one man and one woman, and that marriage is primarily for procreation. Read more background…

Pro & Con Arguments

Pro 1 To deny some people the option to marry would be discriminatory and would create a second class of citizens. Same-sex couples should have access to the same benefits enjoyed by heterosexual married couples. On July 25, 2014 Miami-Dade County Circuit Court Judge Sarah Zabel ruled Florida’s gay marriage ban unconstitutional and stated that the ban “serves only to hurt, to discriminate, to deprive same-sex couples and their families of equal dignity, to label and treat them as second-class citizens, and to deem them unworthy of participation in one of the fundamental institutions of our society.” [ 105 ] As well as discrimination based on sexual orientation, gay marriage bans discriminated based on one’s sex. As David S. Cohen, JD, Associate Professor at the Drexel University School of Law, explained, “Imagine three people—Nancy, Bill, and Tom… Nancy, a woman, can marry Tom, but Bill, a man, cannot… Nancy can do something (marry Tom) that Bill cannot, simply because Nancy is a woman and Bill is a man.” [ 122 ] Over 1,000 benefits, rights and protections are available to married couples in federal law alone, including hospital visitation, filing a joint tax return to reduce a tax burden, access to family health coverage, US residency and family unification for partners from another country, and bereavement leave and inheritance rights if a partner dies. [ 6 ] [ 86 ] [ 95 ] Married couples also have access to protections if the relationship ends, such as child custody, spousal or child support, and an equitable division of property. [ 93 ] Married couples in the US armed forces are offered health insurance and other benefits unavailable to domestic partners. [ 125 ] The IRS and the US Department of Labor also recognize married couples, for the purpose of granting tax, retirement and health insurance benefits. [ 126 ] An Oct. 2, 2009 analysis by the New York Times estimated that same-sex couples denied marriage benefits incurred an additional $41,196 to $467,562 in expenses over their lifetimes compared with married heterosexual couples. [ 7 ] Additionally, legal same-sex marriage comes with mental and physical health benefits. The American Psychological Association, American Psychiatric Association, and others concluded that legal gay marriage gives couples “access to the social support that already facilitates and strengthens heterosexual marriages, with all of the psychological and physical health benefits associated with that support.” [ 47 ] A study found that same-sex married couples were “significantly less distressed than lesbian, gay, and bisexual persons not in a legally recognized relationship.” [ 113 ] A 2010 analysis found that after their states had banned gay marriage, gay, lesbian and bisexual people suffered a 37% increase in mood disorders, a 42% increase in alcohol-use disorders, and a 248% increase in generalized anxiety disorders. [ 69 ] Read More

Pro 2 Gay marriages bring financial gain to federal, state, and local governments, and boost the economy. The Congressional Budget Office estimated in 2004 that federally-recognized gay marriage would cut the budget deficit by around $450 million a year. [ 89 ] In July 2012 New York City Mayor Michael Bloomberg announced that gay marriage had contributed $259 million to the city’s economy in just a year since the practice became legal there in July 2011. [ 43 ] Government revenue from marriage comes from marriage licenses, higher income taxes in some circumstances (the so-called “marriage penalty”), and decreases in costs for state benefit programs. [ 4 ] In 2012, the Williams Institute at the University of California at Los Angeles (UCLA) found that in the first five years after Massachusetts legalized gay marriage in 2004, same-sex wedding expenditures (such as venue rental, wedding cakes, etc.) added $111 million to the state’s economy. [ 114 ] Read More

Pro 3 Legal marriage is a secular institution that should not be limited by religious objections to same-sex marriage. Religious institutions can decline to marry gay and lesbian couples if they wish, but they should not dictate marriage laws for society at large. As explained by People for the American Way, “As a legal matter, marriage is a civil institution… Marriage is also a religious institution, defined differently by different faiths and congregations. In America, the distinction can get blurry because states permit clergy to carry out both religious and civil marriage in a single ceremony. Religious Right leaders have exploited that confusion by claiming that granting same-sex couples equal access to civil marriage would somehow also redefine the religious institution of marriage… this is grounded in falsehood and deception.” [ 132 ] Nancy Cott, PhD, testified in Perry v. Schwarzenegger that “[c]ivil law has always been supreme in defining and regulating marriage.” [ 41 ] Read More

Pro 4 The concept of “traditional marriage” has changed over time, and the idea that the definition of marriage has always been between one man and one woman is historically inaccurate. Harvard University historian Nancy F. Cott stated that until two centuries ago, “monogamous households were a tiny, tiny portion” of the world’s population, and were found only in “Western Europe and little settlements in North America.” [ 106 ] Official unions between same-sex couples, indistinguishable from marriages except for gender, are believed by some scholars to have been common until the 13th Century in many countries, with the ceremonies performed in churches and the union sealed with a kiss between the two parties. [ 106 ] Polygamy has been widespread throughout history, according to Brown University political scientist Rose McDermott, PhD. [ 106 ] [ 110 ] Read More

Pro 5 Gay marriage is a civil right protected by the US Constitution’s commitments to liberty and equality, and is an internationally recognized human right for all people. The NAACP (National Association for the Advancement of Colored People), on May 21, 2012, named same-sex marriage as “one of the key civil rights struggles of our time.” [ 61 ] In 1967 the US Supreme Court unanimously confirmed in Loving v. Virginia that marriage is “one of the basic civil rights of man.” [60] In 2014, the White House website listed same-sex marriage amongst a selection of civil rights, along with freedom from employment discrimination, equal pay for women, and fair sentencing for minority criminals. [ 118 ] The US Supreme Court ruled 7-2 in the 1974 case Cleveland Board of Education v. LaFleur that the “freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause” of the US Constitution. US District Judge Vaughn Walker wrote on Aug. 4, 2010 that Prop. 8 in California banning gay marriage was “unconstitutional under both the Due Process and Equal Protection Clauses.” [ 41 ] The Due Process Clause in both the Fifth and 14th Amendments of the US Constitution states that no person shall be “deprived of life, liberty, or property, without due process of law.” [ 111 ] The Equal Protection Clause in the 14th Amendment states that no state shall “deny to any person within its jurisdiction the equal protection of the laws.” [ 112 ] Since 1888 the US Supreme Court has declared at least 14 times that marriage is a fundamental right for all. [ 3 ] Article 16 of the Universal Declaration of Human Rights guarantees “men and women of full age, without any limitation due to race, nationality or religion… the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution.” [ 103 ] Amnesty International states that “this non-discrimination principle has been interpreted by UN treaty bodies and numerous inter-governmental human rights bodies as prohibiting discrimination based on gender or sexual orientation. Non-discrimination on grounds of sexual orientation has therefore become an internationally recognized principle.” [ 104 ] Read More

Pro 6 Marriage is not only for procreation, otherwise infertile couples or couples not wishing to have children would be prevented from marrying. Ability or desire to create offspring has never been a qualification for marriage. From 1970 through 2012 roughly 30% of all US households were married couples without children, and in 2012, married couples without children outnumbered married couples with children by 9%. [ 96 ] 6% of married women aged 15-44 are infertile, according to the US Centers for Disease Control and Prevention. [ 97 ] In a 2010 Pew Research Center survey, both married and unmarried people rated love, commitment, and companionship higher than having children as “very important” reasons to get married, and only 44% of unmarried people and 59% of married people rated having children as a very important reason. [ 42 ] As US Supreme Court Justice Elena Kagan noted, a marriage license would be granted to a couple in which the man and woman are both over the age of 55, even though “there are not a lot of children coming out of that marriage.” [ 88 ] Read More

Con 1 The institution of marriage has traditionally been defined as being between a man and a woman. Civil unions and domestic partnerships could provide the protections and benefits gay couples need without changing the definition of marriage. John F. Harvey, late Catholic priest, wrote in July 2009 that “Throughout the history of the human race the institution of marriage has been understood as the complete spiritual and bodily communion of one man and one woman.” [ 18 ] [ 109 ] In upholding gay marriage bans in Kentucky, Michigan, Ohio and Tennessee on Nov. 6, 2014, 6th US District Court of Appeals Judge Jeffrey S. Sutton wrote that “marriage has long been a social institution defined by relationships between men and women. So long defined, the tradition is measured in millennia, not centuries or decades. So widely shared, the tradition until recently had been adopted by all governments and major religions of the world.” [ 117 ] In the Oct. 15, 1971 decision Baker v. Nelson, the Supreme Court of Minnesota found that “the institution of marriage as a union of man and woman, uniquely involving the procreation and rearing of children within a family, is as old as the book of Genesis.” [ 49 ] Privileges available to couples in civil unions and domestic partnerships can include health insurance benefits, inheritance without a will, the ability to file state taxes jointly, and hospital visitation rights. [ 155 ] [ 156 ] New laws could enshrine other benefits for civil unions and domestic partnerships that would benefit same-sex couple as well as heterosexual couples who do not want to get married. 2016 presidential candidate and former Hewlett-Packard CEO Carly Fiorina stated that civil unions are adequate as an equivalent to marriage: “Benefits are being bestowed to gay couples [in civil unions]… I believe we need to respect those who believe that the word marriage has a spiritual foundation… Why can’t we respect and tolerate that while at the same time saying government cannot bestow benefits unequally.” [ 157 ] 43rd US President George W. Bush expressed his support for same-sex civil unions while in office: “I don’t think we should deny people rights to a civil union, a legal arrangement, if that’s what a state chooses to do so… I strongly believe that marriage ought to be defined as between a union between a man and a woman. Now, having said that, states ought to be able to have the right to pass laws that enable people to be able to have rights like others.” [158] Read More

Con 2 Marriage is for procreation. Same sex couples should be prohibited from marriage because they cannot produce children together. The purpose of marriage should not shift away from producing and raising children to adult gratification. [ 19 ] A California Supreme Court ruling from 1859 stated that “the first purpose of matrimony, by the laws of nature and society, is procreation.” [ 90 ] Nobel Prize-winning philosopher Bertrand Russell stated that “it is through children alone that sexual relations become important to society, and worthy to be taken cognizance of by a legal institution.” [ 91 ] Court papers filed in July 2014 by attorneys defending Arizona’s gay marriage ban stated that “the State regulates marriage for the primary purpose of channeling potentially procreative sexual relationships into enduring unions for the sake of joining children to both their mother and their father… Same-sex couples can never provide a child with both her biological mother and her biological father.” [ 98 ] Contrary to the pro gay marriage argument that some different-sex couples cannot have children or don’t want them, even in those cases there is still the potential to produce children. Seemingly infertile heterosexual couples sometimes produce children, and medical advances may allow others to procreate in the future. Heterosexual couples who do not wish to have children are still biologically capable of having them, and may change their minds. [ 98 ] Read More

Con 3 Gay marriage has accelerated the assimilation of gays into mainstream heterosexual culture to the detriment of the homosexual community. The gay community has created its own vibrant culture. By reducing the differences in opportunities and experiences between gay and heterosexual people, this unique culture may cease to exist. Lesbian activist M.V. Lee Badgett, PhD, Director of the Center for Public Policy and Administration at the University of Massachusetts at Amherst, stated that for many gay activists “marriage means adopting heterosexual forms of family and giving up distinctively gay family forms and perhaps even gay and lesbian culture.” [14] Paula Ettelbrick, JD, Professor of Law and Women’s Studies, wrote in 1989, “Marriage runs contrary to two of the primary goals of the lesbian and gay movement: the affirmation of gay identity and culture and the validation of many forms of relationships.” [15] Read More

Con 4 Marriage is an outmoded, oppressive institution that should have been weakened, not expanded. LGBT activist collective Against Equality stated, “Gay marriage apes hetero privilege… [and] increases economic inequality by perpetuating a system which deems married beings more worthy of the basics like health care and economic rights.” [ 84 ] The leaders of the Gay Liberation Front in New York said in July 1969, “We expose the institution of marriage as one of the most insidious and basic sustainers of the system. The family is the microcosm of oppression.” [ 16 ] Queer activist Anders Zanichkowsky stated in June 2013 that the then campaign for gay marriage “intentionally and maliciously erases and excludes so many queer people and cultures, particularly trans and gender non-conforming people, poor queer people, and queer people in non-traditional families… marriage thinks non-married people are deviant and not truly deserving of civil rights.” [ 127 ] Read More

Con 5 Gay marriage is contrary to the word of God and is incompatible with the beliefs, sacred texts, and traditions of many religious groups. The Bible, in Leviticus 18:22, states: “Thou shalt not lie with mankind, as with womankind: it is abomination,” thus condemning homosexual relationships. [ 120 ] The Catholic Church, United Methodist Church, Southern Baptist Convention, Church of Jesus Christ of Latter-day Saints, National Association of Evangelicals, and American Baptist Churches USA all oppose same-sex marriage. [ 119 ] According to a July 31, 2003 statement from the Congregation for the Doctrine of the Faith and approved by Pope John Paul II, marriage “was established by the Creator with its own nature, essential properties and purpose. No ideology can erase from the human spirit the certainty that marriage exists solely between a man and a woman.” [ 54 ] Pope Benedict stated in Jan. 2012 that gay marriage threatened “the future of humanity itself.” [ 145 ] Two orthodox Jewish groups, the Orthodox Agudath Israel of America and the Orthodox Union, also oppose gay marriage, as does mainstream Islam. [ 13 ] [ 119 ] In Islamic tradition, several hadiths (passages attributed to the Prophet Muhammad) condemn gay and lesbian relationships, including the sayings “When a man mounts another man, the throne of God shakes,” and “Sihaq [lesbian sex] of women is zina [illegitimate sexual intercourse].” [ 121 ] Read More

Con 6 Homosexuality is immoral and unnatural, and, therefore, same sex marriage is immoral and unnatural. J. Matt Barber, Associate Dean for Online Programs at Liberty University School of Law, stated, “Every individual engaged in the homosexual lifestyle, who has adopted a homosexual identity, they know, intuitively, that what they’re doing is immoral, unnatural, and self-destructive, yet they thirst for that affirmation.” [ 149 ] A 2003 set of guidelines signed by Pope John Paul II stated: “There are absolutely no grounds for considering homosexual unions to be in any way similar or even remotely analogous to God’s plan for marriage and family… Marriage is holy, while homosexual acts go against the natural moral law.” [ 147 ] Former Arkansas governor and Republican presidential candidate Mike Huckabee stated that gay marriage is “inconsistent with nature and nature’s law.” [ 148 ] J. Matt Barber, Associate Dean for Online Programs at Liberty University School of Law, stated, “Every individual engaged in the homosexual lifestyle, who has adopted a homosexual identity, they know, intuitively, that what they’re doing is immoral, unnatural, and self-destructive, yet they thirst for that affirmation.” [ 149 ] A 2003 set of guidelines signed by Pope John Paul II stated: “There are absolutely no grounds for considering homosexual unions to be in any way similar or even remotely analogous to God’s plan for marriage and family… Marriage is holy, while homosexual acts go against the natural moral law.” [ 147 ] Read More

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Evidence is clear on the benefits of legalising same-sex  marriage

PhD Candidate, School of Arts and Social Sciences, James Cook University

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Ryan Anderson does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.

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Emotive arguments and questionable rhetoric often characterise debates over same-sex marriage. But few attempts have been made to dispassionately dissect the issue from an academic, science-based perspective.

Regardless of which side of the fence you fall on, the more robust, rigorous and reliable information that is publicly available, the better.

There are considerable mental health and wellbeing benefits conferred on those in the fortunate position of being able to marry legally. And there are associated deleterious impacts of being denied this opportunity.

Although it would be irresponsible to suggest the research is unanimous, the majority is either noncommittal (unclear conclusions) or demonstrates the benefits of same-sex marriage.

Further reading: Conservatives prevail to hold back the tide on same-sex marriage

What does the research say?

Widescale research suggests that members of the LGBTQ community generally experience worse mental health outcomes than their heterosexual counterparts. This is possibly due to the stigmatisation they receive.

The mental health benefits of marriage generally are well-documented . In 2009, the American Medical Association officially recognised that excluding sexual minorities from marriage was significantly contributing to the overall poor health among same-sex households compared to heterosexual households.

Converging lines of evidence also suggest that sexual orientation stigma and discrimination are at least associated with increased psychological distress and a generally decreased quality of life among lesbians and gay men.

A US study that surveyed more than 36,000 people aged 18-70 found lesbian, gay and bisexual individuals were far less psychologically distressed if they were in a legally recognised same-sex marriage than if they were not. Married heterosexuals were less distressed than either of these groups.

So, it would seem that being in a legally recognised same-sex marriage can at least partly overcome the substantial health disparity between heterosexual and lesbian, gay, and bisexual persons.

The authors concluded by urging other researchers to consider same-sex marriage as a public health issue.

A review of the research examining the impact of marriage denial on the health and wellbeing of gay men and lesbians conceded that marriage equality is a profoundly complex and nuanced issue. But, it argued that depriving lesbians and gay men the tangible (and intangible) benefits of marriage is not only an act of discrimination – it also:

disadvantages them by restricting their citizenship;

hinders their mental health, wellbeing, and social mobility; and

generally disenfranchises them from various cultural, legal, economic and political aspects of their lives.

Of further concern is research finding that in comparison to lesbian, gay and bisexual respondents living in areas where gay marriage was allowed, living in areas where it was banned was associated with significantly higher rates of:

mood disorders (36% higher);

psychiatric comorbidity – that is, multiple mental health conditions (36% higher); and

anxiety disorders (248% higher).

But what about the kids?

Opponents of same-sex marriage often argue that children raised in same-sex households perform worse on a variety of life outcome measures when compared to those raised in a heterosexual household. There is some merit to this argument.

In terms of education and general measures of success, the literature isn’t entirely unanimous. However, most studies have found that on these metrics there is no difference between children raised by same-sex or opposite-sex parents.

In 2005, the American Psychological Association released a brief reviewing research on same-sex parenting. It unambiguously summed up its stance on the issue of whether or not same-sex parenting negatively impacts children:

Not a single study has found children of lesbian or gay parents to be disadvantaged in any significant respect relative to children of heterosexual parents.

Further reading: Same-sex couples and their children: what does the evidence tell us?

Drawing conclusions

Same-sex marriage has already been legalised in 23 countries around the world , inhabited by more than 760 million people.

Despite the above studies positively linking marriage with wellbeing, it may be premature to definitively assert causality .

But overall, the evidence is fairly clear. Same-sex marriage leads to a host of social and even public health benefits, including a range of advantages for mental health and wellbeing. The benefits accrue to society as a whole, whether you are in a same-sex relationship or not.

As the body of research in support of same-sex marriage continues to grow, the case in favour of it becomes stronger.

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Gay Marriage Is Good for America

Subscribe to governance weekly, jonathan rauch jonathan rauch senior fellow - governance studies @jon_rauch.

June 21, 2008

By order of its state Supreme Court, California began legally marrying same-sex couples this week. The first to be wed in San Francisco were Del Martin and Phyllis Lyon, pioneering gay-rights activists who have been a couple for more than 50 years.

More ceremonies will follow, at least until November, when gay marriage will go before California’s voters. They should choose to keep it. To understand why, imagine your life without marriage. Meaning, not merely your life if you didn’t happen to get married. What I am asking you to imagine is life without even the possibility of marriage.

Re-enter your childhood, but imagine your first crush, first kiss, first date and first sexual encounter, all bereft of any hope of marriage as a destination for your feelings. Re-enter your first serious relationship, but think about it knowing that marrying the person is out of the question.

Imagine that in the law’s eyes you and your soul mate will never be more than acquaintances. And now add even more strangeness. Imagine coming of age into a whole community, a whole culture, without marriage and the bonds of mutuality and kinship that go with it.

What is this weird world like? It has more sex and less commitment than a world with marriage. It is a world of fragile families living on the shadowy outskirts of the law; a world marked by heightened fear of loneliness or abandonment in crisis or old age; a world in some respects not even civilized, because marriage is the foundation of civilization.

This was the world I grew up in. The AIDS quilt is its monument.

Few heterosexuals can imagine living in such an upside-down world, where love separates you from marriage instead of connecting you with it. Many don’t bother to try. Instead, they say same-sex couples can get the equivalent of a marriage by going to a lawyer and drawing up paperwork – as if heterosexual couples would settle for anything of the sort.

Even a moment’s reflection shows the fatuousness of “Let them eat contracts.” No private transaction excuses you from testifying in court against your partner, or entitles you to Social Security survivor benefits, or authorizes joint tax filing, or secures U.S. residency for your partner if he or she is a foreigner. I could go on and on.

Marriage, remember, is not just a contract between two people. It is a contract that two people make, as a couple, with their community – which is why there is always a witness. Two people can’t go into a room by themselves and come out legally married. The partners agree to take care of each other so the community doesn’t have to. In exchange, the community deems them a family, binding them to each other and to society with a host of legal and social ties.

This is a fantastically fruitful bargain. Marriage makes you, on average, healthier, happier and wealthier. If you are a couple raising kids, marrying is likely to make them healthier, happier and wealthier, too. Marriage is our first and best line of defense against financial, medical and emotional meltdown. It provides domesticity and a safe harbor for sex. It stabilizes communities by formalizing responsibilities and creating kin networks. And its absence can be calamitous, whether in inner cities or gay ghettos.

In 2008, denying gay Americans the opportunity to marry is not only inhumane, it is unsustainable. History has turned a corner: Gay couples – including gay parents – live openly and for the most part comfortably in mainstream life. This will not change, ever.

Because parents want happy children, communities want responsible neighbors, employers want productive workers, and governments want smaller welfare caseloads, society has a powerful interest in recognizing and supporting same-sex couples. It will either fold them into marriage or create alternatives to marriage, such as publicly recognized and subsidized cohabitation. Conservatives often say same-sex marriage should be prohibited because it does not exemplify the ideal form of family. They should consider how much less ideal an example gay couples will set by building families and raising children out of wedlock.

Nowadays, even opponents of same-sex marriage generally concede it would be good for gay people. What they worry about are the possible secondary effects it could have as it ramifies through law and society. What if gay marriage becomes a vehicle for polygamists who want to marry multiple partners, egalitarians who want to radically rewrite family law, or secularists who want to suppress religious objections to homosexuality?

Space doesn’t permit me to treat those and other objections in detail, beyond noting that same-sex marriage no more leads logically to polygamy than giving women one vote leads to giving men two; that gay marriage requires only few and modest changes to existing family law; and that the Constitution provides robust protections for religious freedom.

I’ll also note, in passing, that these arguments conscript homosexuals into marriagelessness in order to stop heterosexuals from making bad decisions, a deal to which we gay folks say, “Thanks, but no thanks.” We wonder how many heterosexuals would give up their own marriage, or for that matter their own divorce, to discourage other people from making poor policy choices. Any volunteers?

Honest advocacy requires acknowledging that same-sex marriage is a significant social change and, as such, is not risk-free. I believe the risks are modest, manageable, and likely to be outweighed by the benefits. Still, it’s wise to guard against unintended consequences by trying gay marriage in one or two states and seeing what happens, which is exactly what the country is doing.

By the same token, however, honest opposition requires acknowledging that there are risks and unforeseen consequences on both sides of the equation. Some of the unforeseen consequences of allowing same-sex marriage will be good, not bad. And barring gay marriage is risky in its own right.

America needs more marriages, not fewer, and the best way to encourage marriage is to encourage marriage, which is what society does by bringing gay couples inside the tent. A good way to discourage marriage, on the other hand, is to tarnish it as discriminatory in the minds of millions of young Americans. Conservatives who object to redefining marriage risk redefining it themselves, as a civil-rights violation.

There are two ways to see the legal marriage of Del Martin and Phyllis Lyon. One is as the start of something radical: an experiment that jeopardizes millennia of accumulated social patrimony. The other is as the end of something radical: an experiment in which gay people were told that they could have all the sex and love they could find, but they could not even think about marriage. If I take the second view, it is on conservative – in fact, traditional – grounds that gay souls and straight society are healthiest when sex, love and marriage all walk in step.

Children & Families

Governance Studies

Michael R. Glass, Taylor B. Seybolt, Phil Williams Enrique Desmond Arias, Roberto Briceño-Leon, Jon Coaffee, Savannah Cox, Daniel E. Esser, Vanda Felbab-Brown, Michael R. Glass, Kim Gounder, Brij Maharaj, Eduardo Moncada, Daniel Núñez, Taylor B. Seybolt, Phil Williams

January 21, 2022

John Hudak, William G. Gale, Darrell M. West, Vanda Felbab-Brown, Rashawn Ray, Molly E. Reynolds, Elaine Kamarck, William A. Galston, Gabriel R. Sanchez

January 5, 2022

Caitlin Talmadge

June 2, 2020

The strongest argument against same-sex marriage: traditional marriage is in the public interest

by German Lopez

Opponents of same-sex marriage argued that individual states are acting in the public interest by encouraging heterosexual relationships through marriage policies, so voters and legislators in each state should be able to set their own laws.

Some groups, such as the United States Conference of Catholic Bishops, cited the secular benefits of heterosexual marriages, particularly the ability of heterosexual couples to reproduce, as Daniel Silliman reported at the  Washington Post .

”It is a mistake to characterize laws defining marriage as the union of one man and one woman as somehow embodying a purely religious viewpoint over against a purely secular one,” the bishops said in their  amicus brief . “Rather, it is a common sense reflection of the fact that [homosexual] relationships do not result in the birth of children, or establish households where a child will be raised by its birth mother and father.”

Other groups, like the conservative Family Research Council, warned that allowing same-sex couples to marry would lead to the breakdown of traditional families. But keeping marriage to heterosexual couples, FRC argued in an  amicus brief , allows states to “channel the potential procreative sexual activity of opposite-sex couples into stable relationships in which the children so procreated may be raised by their biological mothers and fathers.”

To defend same-sex marriage bans, opponents had to convince courts that there’s a compelling state interest in encouraging heterosexual relationships that isn’t really about discriminating against same-sex couples.

But a majority of Supreme Court justices and most of the lower courts widely rejected this argument, arguing that same-sex marriage bans are discriminatory and unconstitutional.

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Teaching & Learning

Harvard law school: the road to marriage equality.

Since at least 1983, when a Harvard Law student wrote a third-year paper exploring a human rights argument for same-sex marriage, HLS has participated in anticipating, shaping, critiquing, analyzing and guiding the long path toward marriage equality.

In the 1980s, Harvard Law students wrote papers and student notes  debating the pros and cons of a constitutional right to same-sex marriage in the Due Process and Equal Protection Clauses. Those students graduated and became advocates who argued before legislatures and courts, including the U.S. Supreme Court, both for and against legal recognitions of same-sex marriage. Others eventually became judges whose decisions created a legal basis for marriage equality, and some became scholars whose contributions inspired a new generation of students, advocates, and judges to think critically and creatively about LGBT rights. Together, they helped shape the course of a social and legal movement that surprised many by its swift changes in both public perception and legal doctrine.

Evan Wolfson ’83 Pens Prescient Paper

In 1983, a decade after a fledgling movement for same-sex marriage came to a grinding halt in the courts, Harvard Law School third-year student Evan Wolfson asked a question that few in the mainstream legal world were seriously deliberating: Does the Constitution, and its myriad explicit and implied protections of expression, privacy and individualistic self-fulfillment, guarantee the right to same-sex marriage

Many of the arguments Wolfson made then, grounded in a historical framework of marriage as a human rights issue, would later shape legal arguments that would sweep the courts in the decades to come. Twenty years later, Wolfson built on his unpublished thesis in the book “Why Marriage Matters: America, Equality, and Gay People’s Right to Marry.” Published the year after Massachusetts became the first – and at that point only – state to legalize same-sex marriage, the book provided a legal analysis for why marriage should be a constitutional right for all.

Carol Steiker ’86 Explores Constitutional Status of Gay Persons

In “The Constitutional Status of Sexual Orientation: Homosexuality as a Suspect Classification,” a widely cited student note for the Harvard Law Review , Carol Steiker ’86 , now a professor at Harvard Law, argued that legal classifications based on sexual orientation should be subject to heightened scrutiny beyond the “rational basis” test then used by courts. Steiker argued that the most commonly asserted constitutional foundations for gay rights – the right to privacy and the First Amendment guarantee of free speech and expression – had failed to overcome inequality, and that an equal protection approach would provide a richer framework to address discrimination against gay people. Equal Protection – as well as the Due Process Clause – would later serve as a chief tool for courts finding a constitutional right to same-sex marriage.

Laurence Tribe ’66 Argues to Strike Down Georgia Sodomy Laws

In 1986, the Supreme Court heard  Bowers v. Hardwick , in which  Laurence Tribe ’66  represented Michael Hardwick, a man who had been arrested by Georgia police under a state statute criminalizing sodomy. In a 5-4 decision, the Court upheld Georgia’s law, finding that prescriptions against sodomy “have ancient roots,” against which an argument for a constitutional right to engage in homosexual sex was, “at best, facetious.”

(In 2003 the Supreme Court overruled Bowers in Lawrence v. Texas , a case for which Tribe wrote the ACLU’s amicus curiae brief supporting Lawrence.)

William Rubenstein ’86 Wins Legal Recognition of Gay Couples as Families

In 1989,   William B. Rubenstein ’86 ,  now a professor at Harvard Law School,   convinced a New York court that the surviving partner and caretaker of a man who had died of AIDS counted as “family” under the state’s law, and could thus continue living in a rent-controlled apartment that had belonged to his partner. In  Braschi v. Stahl Associates , New York became the first state supreme court to recognize a gay couple as a family, forging an important precedent at a time when there was almost no legal recognition of same-sex couples. After graduating from HLS, Rubenstein was a staff attorney and later director of the American Civil Liberties Union’s National LGBT and AIDS Projects, and in 1993 authored the first casebook on LGBT law, now in its fifth edition and known as “Cases and Materials on Sexual Orientation and the Law.”

Evan Wolfson ’83 Joins Landmark Hawaii Litigation for Legal Right to Marriage

In the mid-1990s, Evan Wolfson participated in landmark litigation, serving as co-counsel in Baehr v. Lewin , later Baehr v. Miike , a Hawaii case in which the state’s supreme court held that the state’s prohibition on same-sex marriage was discriminatory. The state’s highest court sent the case back to trial, where a lower court found in 1996 that the state had no rational reason to deny marriage licenses to same-sex couples. Backlash against the decision later led the state to amend its constitution to cement a ban on same-sex marriage, and inspired Congress to pass the Defense of Marriage Act in 1996 . In 2003, Wolfson would go on to form the national advocacy group Freedom to Marry .

Jean Dubofsky ’67 Lands the First LGBT Rights Win at the Supreme Court

In 1996, after Colorado voters unexpectedly passed Amendment 2 to the state Constitution, which would have prevented local governments from recognizing homosexuals as a protected class, activists asked Jean Dubofsky ’67, an appellate attorney who had been the first woman to serve on the Colorado Supreme Court, to challenge the law. Although her goal was to get rid of Amendment 2 at the state level without landing in the U.S. Supreme Court, the Court eventually took the case, Romer v. Evans, and ultimately struck down the amendment as failing under the rational basis test of the Equal Protection Clause, marking the first win for LGBT rights in the Supreme Court.

It also sparked the beginning of a line of opinions by Justice Anthony Kennedy ’61 that, unlike the Court in Bowers , treated gay people as individuals with rights and dignity. “If you look back at Bowers and all the federal decisions after, their language was just horrific,” Dubofsky said. “They belittled people and made their claims seem frivolous and ridiculous. Romer treated people as if they had some dignity. I couldn’t believe it, when I read the opinion, how much of a sea change it was.”

Harvard Scholars Question Marriage as the Unifying Goal for LGBT Rights

As the legal fight for same-sex marriage began to trickle through the courts, Harvard Law Professor Janet Halley examined in 2001 what she viewed as the troubling rhetoric increasingly adopted by advocates for gay marriage. In an essay titled “Recognition, Rights, Regulation, Normalisation: Rhetorics of Justification in the Same-Sex Marriage Debate,” Halley expressed concerns that although limiting marriage to heterosexual couples indeed deprecated the relationships of gay couples who wished to marry, the fight for equality had too readily adopted language emphasizing the normative value of traditional coupling. Instead, Halley argued, the movement should question widespread assumptions about marriage and monogamy, leaving the door open for a broader range of non-traditional relationships.

In 2003, then-3L Douglas NeJaime published an article in the Harvard Civil Rights-Civil Liberties Law Review titled “Marriage, Cruising, and Life in Between” that explored a range of ideological positions through case studies of some of the leading gay-based organizations. NeJaime expressed concerns that the push for marriage would homogenize the LGBT movement and leave behind those who did not wish to advocate for traditional relationships or gay assimilation.

Chief Justice Margaret Marshall Pens Massachusetts Opinion Legalizing Same-Sex Marriage

On November 18, 2003, Massachusetts Supreme Judicial Court Chief Justice Margaret Marshall wrote the majority opinion for a divided court holding that the state’s ban on gay marriage violated the equal protection and due process rights of same-sex couples under the state constitution, making Massachusetts the first state to legalize same-sex marriage. Marshall, who in 2012 joined Harvard Law as a senior research fellow and lecturer, wrote a much-lauded and frequently quoted opinion that extolled marriage as a “deeply personal commitment to another human being and a highly public celebration of the ideals of mutuality, companionship, intimacy, fidelity, and family.”

Michael Klarman Reflects on Rapid Change

After dozens of states had legalized same-sex marriage – whether through legislation or the courts – Harvard Law Professor Michael Klarman authored  “From the Closet to the Altar: Courts, Backlash, and the Struggle for Same-Sex Marriage.”

Klarman, who frequently writes about social backlashes that follow controversial court decisions, provided an overview of the growing legal acceptance of same-sex marriage and the role courts played in sparking or responding to social change.

September 2013:

Klarman, along with hls professors tomiko brown-nagin, charles fried, and visiting professor justin driver offered their thoughts on a trio of critical u.s. supreme court rulings involving same-sex marriage, voting rights, and affirmative action..

Harvard Law Professors and Alumni Battle Before the Supreme Court

On June 26, 2013, the Supreme Court decided United States v. Windsor , which challenged Section 3 of the Defense of Marriage Act, and Hollingsworth v. Perry , a challenge to California’s Proposition 8. Months earlier, the Supreme Court had tapped Harvard Law Professor Vicki Jackson to argue that the Court lacked jurisdiction to hear Windsor , an argument that neither party to the case had presented, and which the Court ultimately rejected before ruling on the merits. Paul Clement ’92 argued for the House of Representatives’ Bipartisan Legal Advisory Group, a contingent of mostly Republican representatives who argued to uphold the Constitutionality of DOMA after President Barack Obama ’91’s administration refused to continue doing so. In addition, Professors Elizabeth Bartholet ’65 , Lawrence Lessig, and Laurence Tribe ’66 , Professor Emeritus Frank Michelman ’60 , and Lecturers Kevin Russell and Benjamin W. Heineman Jr., filed amicus briefs in the two major cases.

Mary Bonauto and Douglas Hallward-Driemeier ’94 Call for full Legal Recognition

Litigators across the country vied for the opportunity to argue for a constitutional right to same-sex marriage in some of the most anticipated cases in LGBT and civil rights history. In January 2015, the Supreme Court granted certiorari to Obergefell v. Hodges and its companion cases to answer the question whether the Constitution required states to perform same-sex marriages, or whether the Full Faith and Credit Clause required states to, at the very least, recognize same-sex marriages performed in other states. Mary Bonauto, who was also lead counsel for the couples seeking the right to marry in Goodridge and has taught an LGBT reading group at Harvard in recent years, was ultimately picked for the task of arguing the first question, while Douglas Hallward-Driemeier ’94, a partner at law firm Ropes & Gray, took on the Full Faith and Credit question. On April 28, 2015, the pair faced the Supreme Court justices, arguing, as Bonauto put it, that the true question was not whether the government should decide that gay people should be able to marry, but that it was for ” the individual to decide who to marry.”

November 2014:

In a conversation with dean martha minow at hls, mary bonauto reflects on a quarter century of seeking equal treatment under law..

Justice Anthony M. Kennedy ’61 Writes Majority Opinion Affirming Marriage Equality

On June 26, 2015, the Supreme Court ruled in a 5-4 decision that the Constitution guarantees a nationwide right to same-sex marriage. Justice Anthony M. Kennedy ’61 delivered the  opinion of the Court in the landmark decision. He was joined by Justices Stephen Breyer ’64, Ruth Bader Ginsburg ’56-’58, Elena Kagan ’86, and Sonia Sotomayor.

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Same Sex Marriage Argumentative Essay, with Outline

Published by gudwriter on January 4, 2021 January 4, 2021

Example 1: Gay Marriages Argumentative Essay Outline

Introduction.

Same-sex marriage should be legal because it is a fundamental human right. To have experts write for you a quality paper on same sex marriage, seek help from a trusted academic writing service where you can buy research proposals online with ease and one you can be sure of getting the best possible assistance available

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Paragraph 1:

Same-sex marriage provides legal rights protection to same sex couples on such matters as taxes, finances, and health care.

• It gives them the right to become heirs to their spouses and enjoy tax breaks just like heterosexual married couples.
• It makes it possible for them to purchase properties together, open joint accounts, and sign documents together as couples.

Paragraph 2:

Same sex marriage allows two people in love to happily live together.

• Homosexuals deserve to be in love just like heterosexuals.
• The definition of marriage does not suggest that it should only be an exclusive union between two people of opposite sexes.

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Paragraph 3:

Same sex marriage gives homosexual couples the right to start families.

• Gay and lesbian partners should be allowed to start families and have their own children.
• A family should ideally have parents and children.
• It is not necessary that the parents be a male and female.  

Paragraph 4:

Same sex marriage does not harm the institution of marriage and is potentially more stable.

• Legalization of civil unions or gay marriages does not  negatively impact abortion rates, divorce, or marriage.
• Heterosexual marriages have a slightly higher dissolution rate on average than opposite sex marriages.

Paragraph 5:

Opponents of same sex marriage may argue that it is important for children to have a father and mother for a balanced upbringing.

• They hold that homosexual couples only have one gender influence on children.
• They forget that that children under the parental care of same sex couples get to mingle with both male and female genders in various social places.

Paragraph 6:

Opponents may also argue that same-sex marriages reduce sanctity of marriage.

• To them, marriage is a religious and traditional commitment and ceremony.
• Unfortunately, such arguments treat marriage as a man-wife union only.
• They fail to recognize that there are people who do not ascribe to any tradition(s) or religions.
• Same sex marriage is a human right that should be enjoyed just like traditional heterosexual marriages.
• It protects the legal rights of lesbian and gay couples and allows them to actualize their love in matrimony.
• It enables them to exercise their right to start families and bring up children.
• It is only fair that all governments consider legalizing same sex marriages.

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Argumentative Essay on Same Sex Marriage

For many years now, same-sex marriage has been a controversial topic. While some countries have legalized the practice, others still consider it not right and treat it as illegal. Same-sex marriage is defined as a marriage or union between two people of the same sex, such as a man and a man. Some countries have broadened their perspective on this issue even though for many years, it has never been legally acknowledged, with some societies even considering it a taboo. The United Kingdom, Spain, France, Argentina, the Netherlands, and recently the United States are some of the countries that have legalized it (Winter, Forest & Senac, 2017). Irrespective of any arguments, same-sex marriage should be legal because it is a fundamental human right.

First, same-sex marriage, if recognized by society, provides legal rights protection to same sex couples on such matters as taxes, finances, and health care. If people live together in a homosexual relationship without being legally married, they do not enjoy the security to protect what they have worked for and saved together. In case one of them dies, the surviving partner would have no right over the property under the deceased’s name even if they both funded its acquisition (Winter, Forest & Senac, 2017). Legalizing same-sex unions would cushion homosexual partners from such unfortunate situations. They would have the right to become heirs to their spouses and enjoy tax breaks just like heterosexual married couples. Legalization would also make it possible for them to purchase properties together, open joint accounts, and sign documents together as couples.

Same sex marriage also allows two people in love to become one in a matrimonial union and live happily together. Denying homosexual couples the right to marry is thus denying them the right to be in love just like heterosexuals do. Moreover, the definition of marriage does not suggest that it should only be an exclusive union between two people of opposite sexes. According to Gerstmann (2017), marriage is a formally or legally recognized union between two people in a personal relationship. As per this definition, people should be allowed to marry once they are in love with each other irrespective of their genders. Reducing marriage to a union between a man and woman is thus a direct infringement into the rights of homosexuals.

Additionally, gay marriages give homosexual couples the right to start families. Just like heterosexual couples, gay and lesbian partners should be allowed to start families and have their own children. Essentially, a family should ideally have parents and children and it is not necessary that the parents be a male and female. Same sex partners can easily adopt and bring up children if their marriage is legalized and recognized by the society in which they live (Gerstmann, 2017). As one would concur, even some heterosexual couples are not able to sire their own children and resort to adopting one or even more. This is a right that should be extended to same sex couples too given that they may not be able to give birth on their own.

Further, same sex marriage does no harm whatsoever to the institution of marriage, and is potentially more stable. According to a 2009 study, legalization of civil unions or gay marriages does not in any way negatively impact abortion rates, divorce, or marriage (Langbein & Yost, 2009). This makes it quite uncalled for to argue against or prohibit gay marriages. In yet another study, only 1.1 percent of legally married gay couples end their relationships as compared to the 2 percent annual divorce rate among opposite-sex couples (Badgett & Herman, 2011). This implies that heterosexual marriages have a slightly higher dissolution rate on average than opposite sex marriages. It could then be argued that gay marriages are more stable than traditional man-woman marriages. The two types of marriages should thus be given equal chance because neither affects the other negatively. They also have more or less equal chances of succeeding if legally recognized and accepted.

Opponents of same sex marriage may argue that it is important for children to have a father and a mother. They may say that for children to have a good balance in their upbringing, they should be influenced by a father and a mother in their developmental years. Such arguments hold that homosexual couples only have one gender influence over the lives of children and that this is less fulfilling (Badgett, 2009). However, the arguments fail to recognize that children under the parental care of same sex couples get to mingle with both male and female genders in various social places. At school, the children get to be cared for and mentored by both male and female teachers who more or less serve almost the same role as parents.

Those who are opposed to same sex unions may also argue that such marriages reduce sanctity of marriage. To them, marriage is a religious and traditional commitment and ceremony that is held very sacred by people. They contend that there is need to do everything possible to preserve marriage because as an institution, it has been degrading slowly over time. Their concern is that traditional marriages are being devalued by same sex marriages which are swaying people away from being married and instead choosing to live with same sex partners (Nagle, 2010). It is clear here that such arguments treat marriage as a man-woman union only and are thus not cognizant of the true meaning of marriage. Moreover, they fail to recognize that traditions and religions should not be used against same sex couples because there are people who do not ascribe to any tradition(s) or religions.

Same sex marriage is a human right that should be enjoyed just like traditional heterosexual marriages. It protects the legal rights of lesbian and gay couples and allows them the well-deserved opportunity of actualizing their love in matrimony. In addition, it enables them to exercise their right to start families and bring up children. Arguments made against this form of marriage, such as that it undermines traditional marriages, are based on opinions and not facts. Moreover, it is not important for a child to have a father and a mother because there are other places in which they actively interact with people of different sexes. As such, it is only fair that all governments consider legalizing gay marriages.

Badgett, M. V., & Herman, J. L. (2011).  Patterns of relationship recognition by same-sex couples in the United States [PDF]. The Williams Institute. Retrieved from https://williamsinstitute.law.ucla.edu/wp-content/uploads/Marriage-Dissolution-FINAL.pdf .

Badgett, M. V. (2009). When gay people get married: what happens when societies legalize same-sex marriage . New York, NY: NYU Press.

Gerstmann, E. (2017). Same-sex marriage and the constitution . New York, NY: Cambridge University Press.

Langbein, L., & Yost, M. A. (2009). Same-sex marriage and negative externalities.  Social Science Quarterly , 90(2), 292-308.

Nagle, J. (2010). Same-sex marriage: the debate . New York, NY: The Rosen Publishing Group.

Winter, B., Forest, M., & Senac, R. (2017). Global perspectives on same-sex marriage: a neo-institutional approach . New York, NY: Springer.

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Example 2: Sample Essay Outline on Same Sex Marriages

Thesis:  Same sex marriage, just like opposite sex marriage, should be legal.

Pros of Same Sex Marriage

Same sex couples are better at parenting.

• Children brought up by same sex couples do better in terms of family cohesion and overall health.
• Children under the guardianship of lesbian mothers perform better academically and socially.

Same sex marriage reduces divorce rates.

• The divorce rates in a state were reduced significantly after the state legalized gay marriages. Higher divorce rates were recorded in states where gay marriages are prohibited.
• Divorce is not good for family cohesion.

Same sex marriage increases psychological wellbeing.

• Bisexuals, gays, and lesbians feel socially rejected if society views same-sex marriages as illegal or evil.
• After some states banned this kind of marriage, bisexuals, gays, and lesbians living there experienced increased anxiety disorders.

Cons of Same Sex Marriage

Same sex marriages may diminish heterosexual marriages.

• It could be possible for children in homosexual families to think that same sex unions are more fulfilling.
• They might want to become homosexuals upon growing up.

For a holistic development, a child should have both mother and father.

• Absence of a father or a mother in a family leaves a gaping hole in the life of a child.
• A child needs to learn how to relate with both male and female genders right from when they are born.

Other non-typical unions may be encouraged by same sex unions.

• People who get involved in such other acts as bestiality and incest may feel encouraged.
• They might start agitating for their “right” to get married to animals for instance.

Why Same Sex Marriage Should Be Legal

Paragraph 7:

Marriage is a fundamental human right.

• All individuals should enjoy marriage as a fundamental right.
• Denying one the right to marry a same sex partner is akin to denying them their basic right.

Paragraph 8:

Marriage is a concept based on love.

• It is inaccurate to confine marriage to be only between a man and woman.
• Marriage is a union between two people in love with each other, their gender or sexual orientation notwithstanding.

Paragraph 9:

opponents of same-sex marriage argue that a relationship between same-sex couples cannot be considered marriage since marriage is the union between a man and a woman.

• However, this definitional argument is both conclusory and circular.
• It is in no way logical to challenge gay marriage based on this archaic marriage definition.

Same sex marriage should be legalized by all countries in the world. In the U.S., the debate surrounding its legalization should die off because it is irrelevant. People have the right to marry whoever they like whether they are of the same sex.

Same Sex Marriage Essay Example

The idea of same sex marriage is one of the topics that have been widely debated in the United States of America. It has often been met with strong opposition since the majority of the country’s citizens are Christians and Christianity views the idea as evil. On the other hand, those who believe it is right and should be legalized have provided a number of arguments to support it, including that it is a fundamental human right. This debate is still ongoing even after a Supreme Court ruling legalized this type of marriage. However, this debate is unnecessary because same sex marriage, just like opposite sex marriage, should be legal.

It has been proven through studies that same sex couples are better at parenting. A University of Melbourne 2014 study indicated that compared to children raised by both mother and father, children brought up by same sex couples do better in terms of family cohesion and overall health. Similarly, the journal  Pediatrics  published a study in 2010 stating that children under the guardianship of lesbian mothers performed better academically and socially (Gerstmann, 2017). The children also experienced fewer social problems.

Same sex marriages also reduce divorce rates. According to Gerstmann (2017), the divorce rates in a state were reduced significantly after the state legalized gay marriages. This was as per the analysis of the before and after divorce statistics. Likewise, higher divorce rates were recorded in states where gay marriages are prohibited. Generally, divorce is not good for family cohesion especially in terms of caring for children. Children need to grow up under the care of both parents hence the need for their parents to stay together.

In addition, same sex marriage increases psychological wellbeing. This is because bisexuals, gays, and lesbians feel socially rejected if society views same-sex marriages as illegal or evil. A study report released in 2010 showed that after some states banned this kind of marriage, bisexuals, gays, and lesbians living there experienced a 248% rise in generalized anxiety disorders, a 42% increase in alcohol-use disorders, and a 37% rise in mood disorders (Winter, Forest & Senac, 2017). In this respect, allowing such marriages would make them feel normal and accepted by society.

Same sex marriages may diminish heterosexual marriages and the longstanding marriage culture in society. Perhaps, it could be possible for children in homosexual families to think that same sex unions are more fulfilling and enjoyable than opposite-sex relationships. As a result, they might want to become homosexuals upon growing up. This would mean that standardized marriages between opposite sexes face a bleak future (Nagle, 2010). Such a trend might threaten to throw the human race to extinction because there would be no procreation in future generations.

Same sex unions also fall short because for a holistic development, a child should have both a mother and a father. Absence of a father or a mother in a family leaves a gaping hole in the life of a child. The two major genders in the world are male and female and a child needs to learn how to relate with both of them right from when they are born (Nagle, 2010). A father teaches them how to live alongside males while a mother teaches them how to do the same with females.

Further, other non-typical unions may be encouraged by same sex unions. If the marriages are accepted worldwide, people who get involved in such other acts as bestiality and incest may feel encouraged (Winter, Forest & Senac, 2017). They might even start agitating for their “right” to get married to animals, for instance. This possibility would water down and deinstitutionalize the whole concept of consummation and marriage. This would further diminish the existence of heterosexual marriages as people would continue to find less and less importance in them.

Same sex unions should be legal because marriage is a fundamental human right. It has been stated by the United States Supreme Court fourteen times since 1888 that all individuals should enjoy marriage as a fundamental right (Hertz & Doskow, 2016). In making these judgments, the Supreme Court has repeatedly stated that the Due Process Clause protects as one of the liberties the freedom to make personal choice in matters of marriage. The Court has maintained that this free choice is important as it allows free men to pursue happiness in an orderly manner. Thus, denying one the right to marry a same sex partner is akin to denying them their basic right.

People should also be legally allowed to get into same sex unions since marriage is a concept based on love. It is traditionally inaccurate to confine marriage to be only between a man and a woman. The working definition of marriage should be that it is a union between two people in love with each other, their gender or sexual orientation notwithstanding (Hertz & Doskow, 2016). Making it an exclusively man-woman affair trashes the essence of love in romantic relationships. If a man loves a fellow man, they should be allowed to marry just like a man and a woman in love may do.

As already alluded to, opponents of same-sex marriage argue that a relationship between same-sex couples cannot be considered marriage since marriage is the union between a man and a woman. Based on this traditional definition of marriage, they contend that gay and lesbian couples should not marry. However, as noted by Carpenter (2005), this definitional argument is both conclusory and circular and is thus seriously flawed and fallacious. It is in no way logical to challenge gay marriage based on this archaic marriage definition. That marriage only happens when one man and one woman come together in a matrimony is a constricted view of the institution of marriage. Moreover, there are no reasons accompanying the definition showing that it is the right one or should be the only one (Carpenter, 2005). Therefore, it should be expanded to include same-sex couples. The lack of reasons to support it makes it defenseless thus weak.

Same sex marriages should be legalized by all countries in the world. In the U.S., the debate surrounding its legalization should die off because it is irrelevant. People have the right to marry whoever they like whether they are of the same sex or not. Just like love can sprout between a man and a woman, so can it between a man and a fellow man or a woman and a fellow woman. There is absolutely no need to subject gays, lesbians, and bisexuals to unnecessary psychological torture by illegalizing same sex marriage.

Carpenter, D. (2005). Bad arguments against gay marriage.  Florida Coastal Law Review , VII , 181-220.

Gerstmann, E. (2017).  Same-sex marriage and the constitution . New York, NY: Cambridge University Press.

Hertz, F., & Doskow, E. (2016).  Making it legal: a guide to same-sex marriage, domestic partnerships & civil unions . Berkeley, CA: Nolo.

Nagle, J. (2010).  Same-sex marriage: the debate . New York, NY: The Rosen Publishing Group.

Winter, B., Forest, M., & Senac, R. (2017).  Global perspectives on same-sex marriage: a neo-institutional approach . New York, NY: Springer.

Example 3: Same Sex Marriage Essay

Same Sex Marriage Essay- Changing Attitudes on Gay Marriage. Discuss how the idea of gay marriage has changed over the last decade and show the progression of the movement.

Changing Attitudes on Same Sex Marriage Essay Outline

Introduction 

Thesis:  Gay marriage was regarded as an abomination in the early years, but in recent times the attitude of the society towards same-sex marriage is gradually changing.

In 1965, 70% of Americans were opposed to same-sex marriage.

• They cited its harmfulness to the American life.
• Prevalence of AIDS among gay people further increased this opposition.

Social gay movements contributed to change in the attitude of the society towards gay marriage.

• Gay movements increased the exposure of members of the society to gay marriage while showing their sufferings.
• Through social movements, the society saw the need for equality and fair treatment of gay persons.

Political movements in support of gay marriage have as well contributed to change in the attitude of the society towards gay marriage.

• Political bodies and politicians pushed for equality of gay people in efforts to garner political mileage.
• The influence of politicians changed the attitude of the society towards gay marriage.

The incidence of gay people, particularly in the United States has contributed to change in the attitude of the society towards gay marriage.

• Increase in the number of gay persons pushed people into accepting gay marriage.
• The media contributed in gathering compassion from members of the society by evidencing the sufferings of gay people.

The judiciary upheld the legitimacy of same-sex marriage.

• In 2014, 42 court rulings were made in favor of gay marriage.
• There are more than 30 states today with policies in support of same-sex marriage.

The increased push for the freedom of marriage contributed to changing the attitude on gay marriage.

• The Supreme Court ruling in 1987 that stopped governments from restricting the freedom of marriage worked in favor of same-sex marriage.

Paragraph 7: 

Supporters of same sex marriage have also increasingly argued that people should be allowed to marry not necessarily based on their gender but on the love between them.

• Restricting marriage to a union between heterosexual couples only creates a biased view of human sexuality.
• An adult should be allowed the freewill to seek for the fulfillment of love by starting a relationship with a partner of whichever gender of their choosing.

Gay marriage has been the subject of social, political and religious debates for many years but over the past two decades, the attitude of the society towards same-sex marriage has changed. Social gay movements and increased incidence of gay people has compelled the community to accept and tolerate gay marriages. The judiciary has as well contributed to this change in attitude by pushing the freedom and right to marriage.

Changing Attitudes on Same Sex Marriage Sample Essay

In the early years, gay marriage was an abomination and received criticism from many members of society. The principal reason as to why many people in society were objected to gay marriage was that it went against religious and societal values and teachings (Decoo, 2014). However, over the past three decades, the perception of society towards the practice has changed. The degree of its social tolerance and acceptance has gradually improved. In the 2000s, numerous social and political lobby groups pushed for a change in insolences towards gay marriage (Decoo, 2014). Though these lobby groups have tried to advocate for the rights of gay people, their principal focus was to change people’s attitudes towards homosexuality.

According to a study conducted in the year 1965 investigating the attitudes of Americans towards gay marriage, seventy percent of the respondents were opposed to the idea of same-sex marriage citing its harmfulness to the American life. Most Americans felt that the practice went against the social and moral values of the American society. In the years between 1975 and 1977, the number of Americans who were not objected to gay marriage increased (Decoo, 2014). However, this number decreased in the years of 1980, when the prevalence of AIDS among gay people hit alarming levels. In the years that followed, the attitudes of the American society towards gay marriage rapidly changed.

The rise of gay social movements has contributed significantly to a change in attitude of the society towards gay marriage. In the early years, people were not exposed to issues of same-sex marriage, but the gay social movements focused on increasing the exposure of gay marriage, while advocating for their equal treatment (Keleher & Smith, 2018). These movements were able to reveal the injustices and unfair treatment that gays were exposed to, and how such unfair treatment tarnishes the image of the society (Keleher & Smith, 2018). The movements persuaded the society to embark on ways of addressing injustices meted out on gay people. Through highlighting these injustices, members of the society acknowledged the need for reforms to bring about impartiality and non-discrimination in marriage.

Political movements in support of gay marriage have as well contributed to changing the attitude of the society towards the practice. As a matter of fact, one of the strategies that gay social movements employed in their advocacy for gay rights were political maneuvering (Demock, Doherty & Killey, 2013). The lobby groups approached aspiring politicians, who would advocate for equal rights of gays to garner political mileage. With time, politicians would use the subject to attack their competitors who were opposed to the idea of same sex marriage (Demock, Doherty & Killey, 2013). This increased political support for gay marriage influenced members of the society into changing their attitude towards the same.

The ever increasing number of gays, particularly in the United States, has contributed to a change in the attitude of the world society towards gay marriage. As the number of gays increased in the U.S., it became hard for members of the society to continue opposing this form of marriage (Demock, Doherty & Killey, 2013). Many families had at least one or more of their family members who would turn out to be gay. The perception of gay people by such families would therefore change upon learning that their loved ones were also gay (Demock, Doherty & Killey, 2013). The media also played a significant role in gathering compassion from the members of the society by portraying the injustices that gay people experienced (Demock, Doherty & Killey, 2013). The society would as a result be compelled to sympathize with gays and lesbians and thus change their stance on same-sex marriage.

Further, the judiciary has also contributed to the change in the attitude of the society towards gay marriage. There were states in the U.S. that initially illegalized same sex marriages, prompting gay people to file discrimination lawsuits (Coontz, 2014). Reports indicate that in the year 2014, there were more than 42 court rulings that ruled in favor of same-sex couples (Coontz, 2014). Some critics of same-sex marriage termed these rulings as judicial activism. They argued that the judiciary was frustrating the will of the American society, which was opposed to same-sex marriage (Coontz, 2014). Following these rulings and the increased advocacy for equality and fair treatment of gay people, some states implemented policies is support of same-sex marriage (Coontz, 2014). Today, the entire United States treats the practice as legal, as was determined by the Supreme Court back in 2015.

The increased push for the freedom of marriage has also contributed to changing the attitude on gay marriage. In the early years, there were states, especially in the United States, that opposed interracial marriages, so that a white could not marry an African-American, for instance (Coontz, 2014). In the years before 1967, there were states that restricted people with tuberculosis or prisoners from getting married. Other states also discouraged employers from hiring married women. However, in 1987 the Supreme Court ruled that state governments had no right to deny people of their freedom of marriage (Coontz, 2014). When such laws were regarded as violations of human rights, gay people also termed the restriction of same-sex marriage as a violation of their liberty and freedom to marry.

Supporters of same sex marriage have also increasingly argued that people should be allowed to marry not necessarily based on their gender but on the love between them and their decision as two adults. According to such people, restricting marriage to a union between heterosexual couples only creates a biased view of human sexuality. For example, they point out that this extreme view fails to acknowledge that gay couples also derive fulfilment from their romantic relationships (Steorts, 2015). They additionally contend that an adult should be allowed the freewill to seek for this fulfillment by starting a relationship with a partner of whichever gender of their choosing. Whether they love a man or a woman should not be anybody’s concern. The argument also notes that gay couples who have come out clearly demonstrate that they are happy in their relationships.

Gay marriage has been the subject of social, political, and religious debates for many years but over the past two decades, the attitude of the society towards it has significantly changed. Social gay movements and increased numbers of gay people has compelled the community to accept and tolerate the practice. The judiciary has as well contributed to this change in attitude by pushing the freedom and right to marriage, thereby finally making the practice legal in the United States.

Coontz, S. (2014). “Why America changed its mind on gay marriageable”.  CNN . Retrieved June 23, 2020 from  http://edition.cnn.com/2014/10/13/opinion/coontz-same-sex-marriage/index.html

Decoo, E. (2014).  Changing attitudes toward homosexuality in the United States from 1977 to 2012 . Provo, UT: Brigham Young University.

Demock, M., Doherty, C., & Kiley, J. (2013). Growing support for gay marriage: changed minds and changing demographics.  Gen ,  10 , 1965-1980.

Keleher, A. G., & Smith, E. (2008). Explaining the growing support for gay and lesbian equality since 1990. In  Annual Meeting of the American Political Science Association, Boston, MA .

Steorts, J. L. (2015). “An equal chance at love: why we should recognize same-sex marriage”.  National Review . Retrieved June 23, 2020 from  https://www.nationalreview.com/2015/05/yes-same-sex-marriage-about-equality-courts-should-not-decide/

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Marriage Equality: Global Comparisons

• More than two dozen countries have marriage equality , and more than half of these are in Western Europe.
• Cuba and Slovenia were the latest to legalize same-sex marriage, both in 2022.
• The expansion of LGBTQ+ rights around the globe has been uneven, with bans on same-sex relationships still in place in many countries.

Introduction

Thirty-three countries, including the United States, have legalized same-sex marriage, and some others recognize same-sex civil unions. Yet same-sex marriage remains banned in many countries, and the expansion of broader LGBTQ+ rights has been uneven globally. International organizations, including the United Nations, have issued resolutions in support of LGBTQ+ rights, but human rights groups say these organizations have limited power to enforce them.

International Norms, Democracy, and LGBTQ+ Rights

Rights monitors find a strong correlation between LGBTQ+ rights and democratic societies; the research and advocacy group Freedom House lists nearly all the countries with marriage equality—when same-sex couples have the same legal right to marriage as different-sex couples—as “free.” “Wherever you see restrictions on individuals—in terms of speech, expression, or freedom of assembly—you see a crackdown on LGBT rights,” says Julie Dorf, senior advisor to the Council for Global Equality, a Washington-based group that promotes LGBTQ+ rights in U.S. foreign policy. “It’s the canary in the coal mine,” she says.

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Javier Corrales, a professor at Amherst College who focuses on LGBTQ+ rights in Latin America, points to income levels and the influence of religion in politics, as well as the overall strength of democracy, to explain regional divergences [PDF].

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The UN Human Rights Council, expressing “grave concern” over violence and discrimination against individuals based on sexual orientation and gender identity, commissioned the body’s first study on the topic [PDF] in 2011. In 2014, the council passed a resolution to combat anti-LGBTQ+ violence and discrimination. Two years later, the United Nations appointed its first-ever independent expert on sexual orientation and gender identity. “What is important here is the gradual building of consensus,” says Graeme Reid, director of the lesbian, gay, bisexual, and transgender rights program at Human Rights Watch. “There’s an accumulation of moral pressure on member states to at least address the most overt forms of discrimination or violence.”

Activists have focused on antiviolence and antidiscrimination campaigns rather than marriage equality. “There’s no sensible diplomat who would think that pushing same-sex marriage on a country that’s not ready for it is a good idea,” says Dorf. She adds that not all countries with marriage equality allow same-sex couples to jointly adopt and cautions against equating the right to marry with freedom from discrimination. Still, antidiscrimination laws are gaining traction worldwide. In 2020, eighty-one countries and territories, including some that retain sodomy laws, had protections against employment discrimination [PDF] based on gender identity or sexual orientation.

United States

In 2015, the U.S. Supreme Court ruled in Obergefell v. Hodges that the Constitution grants same-sex couples the right to marry. The 5-4 ruling effectively legalized same-sex marriage in the thirteen states where it remained banned and extended to U.S. territories. In 2022, amid fears that the Supreme Court could rule to let states deny the validity of same-sex marriages, Congress passed and President Joe Biden signed into law the Respect for Marriage Act , which recognizes such marriages at the federal level. That year, 71 percent of Americans polled approved of same-sex marriage, up from 27 percent in 1996.

Despite the increase in public support for same-sex marriage, debate continues between advocates of legal equality and individuals and institutions that object to marriage equality on the basis of religious belief. In 2018, the Supreme Court ruled in favor of a Colorado baker who refused to make a wedding cake for a same-sex couple because of his religious beliefs, violating the state’s civil rights law. However, the court chose not to issue a broader ruling on whether businesses have a right to deny goods or services to LGBTQ+ people for religious reasons. In 2020, the court ruled that a 1964 civil rights law prohibiting sex discrimination in the workplace also applies to discrimination based on sexual orientation or gender identity. The ruling protected LGBTQ+ employees from being fired in more than half of states where no such legal protections previously existed.

However, the Supreme Court’s decision in 2022 to overturn Roe v. Wade , a case that used the fourteenth amendment to protect the right to have an abortion, sparked some concerns that it would similarly overturn its 2015 decision on marriage equality. In his concurring opinion on the 2022 ruling, Justice Clarence Thomas wrote that Obergefell v. Hodges was “ demonstrably erroneous ” and that the court had a duty to overrule this and other decisions. 

More than half of the countries that have marriage equality are in Western Europe. Same-sex marriage has been legalized in the Netherlands (2001), Belgium (2003), Spain (2005), Norway (2009), Sweden (2009), Portugal (2010), Iceland (2010), Denmark (2012), France (2013), the United Kingdom (2013), Luxembourg (2015), Ireland (2015), Finland (2017), Malta (2017), Germany (2017), Austria (2019), and Switzerland (2021). In Italy, the parliament approved civil unions for same-sex couples in 2016, but same-sex marriage is not legal. Lawmakers in Andorra voted in 2022 to convert all same-sex civil unions to civil marriages and legalize same-sex marriage. The changes will take effect in early 2023. Meanwhile, Slovenia made history in 2022 as the first country of the former Yugoslavia to legalize marriage and adoption for same-sex couples.

“More than half of the countries that have marriage equality are in Western Europe.”

Despite this, same-sex marriage remains restricted in much of Central and Eastern Europe. A 2019 Pew Research Center poll found that support for legal recognition of same-sex marriage was 28 percent in Lithuania and 14 percent in Ukraine. Support in Poland and Hungary has increased in recent years, to 47 percent and 49 percent, respectively, though both maintain bans on same-sex marriage. At least ten other countries in Central and Eastern Europe have such prohibitions. Estonia allows civil unions, though popular support for marriage equality in the Baltic states is low. The Czech Republic and Hungary recognize same-sex partnerships. In 2018, a Budapest court ruled that same-sex marriages performed abroad must be recognized as partnerships. Since then, however, Hungarian lawmakers and populist Prime Minister Viktor Orban have passed several anti-LGBTQ+ laws, including ones that prohibit same-sex couples from adopting children and ban any content deemed to promote being gay or transgender from being distributed to people under the age of eighteen. The European Union (EU) condemned the laws as discriminatory.

In 2013, Russia made it a crime to distribute “propaganda of nontraditional sexual relationships among minors.” Dozens of people have been fined for violations , including participating in protests and sharing articles on social media. Human rights groups say the law is a tool for anti-LGBTQ+ discrimination, and Europe’s top human rights court ruled that it is discriminatory and violates freedom of expression. In 2022, Russian President Vladimir Putin signed into law an expansion of the ban . It prohibited the distribution of such material to adults, made it illegal to treat same-sex relationships as “normal,” and increased penalties against people who violate the law. Meanwhile, in Chechnya, a semiautonomous republic within Russia, dozens of men suspected of being gay have been detained, tortured, and even killed in two separate official crackdowns since 2017.

The EU does not require its members to recognize same-sex marriage, though a 2018 ruling [PDF] by the EU’s top court says they must uphold same-sex couples’ rights to freedom of movement and residence. In 2021, the court ruled that all EU countries must recognize children of same-sex couples, even countries that do not have marriage equality. The ruling came after Bulgaria refused to grant identity documents to the daughter of a same-sex couple. A 2013 European Parliament report on human rights and democracy “encourages” EU institutions and member states to recognize same-sex marriage or civil unions as “a political, social and human and civil rights issue ” [PDF]; however, the EU is not able to impose such policy changes on its members. 

In 2005, Canada became the first country in the Western Hemisphere to legalize same-sex marriage. It was followed by Argentina in 2010, Brazil and Uruguay in 2013, Mexico in 2015, Colombia in 2016, Ecuador in 2019, Costa Rica in 2020, and Chile in 2021. The only Central American country to recognize same-sex couples is Costa Rica, though some others in the region have limited antidiscrimination protections. 

Support for marriage equality varies across the region. According to a 2016 survey [PDF] by the International LGBTI Association (ILGA), 54 percent of Canadians, 48 percent of Chileans, and 57 percent of Argentines were in favor of legalizing same-sex marriage. In Central America, support was much lower: 33 percent of Costa Ricans, 28 percent of Nicaraguans, and 27 percent of Ecuadorians supported legalizing it. In 2018, the Inter-American Court of Human Rights ruled in favor of marriage equality, but the decision has not spurred much action among member states. 

Support for legalizing same-sex marriage also remains low in the Caribbean, at just 16 percent in Jamaica and 23 percent in the Dominican Republic, according to the ILGA. Bermuda, a British territory, legalized domestic partnerships for same-sex couples in 2017, but the government fought to reissue a ban. Same-sex marriage remains illegal there. However, in 2022, Antigua and Barbuda, Bermuda, and St. Kitts and Nevis struck down laws criminalizing gay sex. 

The governments of Bolivia, Honduras, Nicaragua, and Paraguay have enacted constitutional bans on same-sex marriage. Although Brazil has legalized same-sex marriage, in 2019,  then-President Jair Bolsonaro removed the Human Rights Ministry’s ability to consider LGBTQ+ concerns. He drew criticism from LGBTQ+ advocacy groups during his campaign over homophobic remarks .

Cuba, where homosexuality was once punished by internment in forced-labor camps , has changed markedly in recent years. The National Assembly passed an antidiscrimination law in 2013, and a new constitution in 2019 removed language defining marriage as between a man and a woman. In September 2022, voters approved a referendum legalizing same-sex marriage.

Pacific Rim

Australia and New Zealand are the only Pacific Rim countries in which same-sex marriage is legal. Same-sex marriage became legal in Taiwan in 2019, as the legislature implemented a ruling the top court issued two years earlier. In China, 43 percent of people supported legalizing same-sex marriage in 2021. 

A district in Tokyo began recognizing same-sex unions in 2015, amid rapidly shifting public opinion in Japan. In 2022, the city adopted legislation granting same-sex couples some privileges enjoyed by married couples. A court in Sapporo ruled a year earlier that the Japanese government’s refusal to recognize same-sex marriages is unconstitutional, while a court in Osaka ruled that it is constitutional. In a 2022 survey, public support for same-sex marriage reached nearly 65 percent. 

In 2022, a court in Seoul, South Korea, ruled against recognizing same-sex partnerships and rejected a same-sex couple’s claim to spousal health insurance, even though public opinion supports antidiscrimination legislation. More than a third of people in South Korea supported legalizing same-sex marriage in 2021.

“Australia and New Zealand are the only Pacific Rim countries in which same-sex marriage is legal.”

Lawmakers in Thailand and Vietnam have considered bills to legalize same-sex marriage or civil partnerships. However, in 2021, Thailand’s Constitutional Court ruled that the nation’s marriage law—which only recognizes marriage between a man and a woman—does not violate the constitution. The country’s parliament is considering two proposals that will essentially give lawmakers a choice between permitting civil partnerships for same-sex couples and allowing them to marry. In the Philippines, President Ferdinand Marcos Jr. has said that if there is popular support for same-sex unions, it is up to lawmakers to legalize it. However, he has maintained his own opposition to same-sex marriage.

Same-sex relations between men are banned in parts of Indonesia, Malaysia, and Myanmar. Rights groups have reported increased threats and violence against LGBTQ+ people in Indonesia since 2016, including discriminatory comments by several public officials. Singaporean Prime Minister Lee Hsien Loong vowed in 2022 to decriminalize gay sex but said this would not change the status quo on marriage. In Brunei, gay sex is punishable by stoning to death , though following international outcry, the government said it won’t enforce the law. 

South and Central Asia

Same-sex relations are illegal in much of South and Central Asia [PDF], including in Bangladesh and Pakistan. In 2018, India lifted a colonial-era ban on gay sex, and in 2020, Bhutan moved to decriminalize it. In 2022, India’s Supreme Court ruled to expand the definition of family to include “atypical” families, such as same-sex couples, though same-sex marriage remains illegal. Nepal has enacted some protections against discrimination based on sexual orientation, and in 2015 a government-appointed panel recommended that lawmakers legalize same-sex marriage. Bangladesh, India, Nepal, and Pakistan allow people to register as a third gender in official documents. 

There is little information on public attitudes toward homosexuality in South and Central Asia. ILGA found 35 percent of Indians and 30 percent of Pakistanis in 2016 thought same-sex marriage should be legal. Support in Kazakhstan stood at 12 percent. 

Support for same-sex marriage has historically been low in Afghanistan. According to a 2022 Human Rights Watch report , the Taliban’s takeover in 2021 “dramatically worsened” LGBTQ+ people’s lives, with individuals reporting attacks, sexual assaults, and direct threats against them or their families.

Middle East and North Africa

Same-sex relations are illegal in much of the region and are punishable by death in Iran, Saudi Arabia, and Yemen. Algeria, Morocco, Oman, Syria, Tunisia, and Gaza have laws explicitly prohibiting same-sex acts. When Qatar hosted the 2022 FIFA World Cup, its anti-LGBTQ+ laws were widely criticized; it prohibits gay sex, and security forces have assaulted transgender women and other LGBTQ+ people, according to Human Rights Watch.

In 2018, Lebanese courts set a potential precedent for the decriminalization of gay sex, but the country continued to crack down on peaceful LGBTQ+ gatherings in 2021 and banned them outright in 2022. 

Israel recognizes same-sex marriages performed in other countries, but a bill that would have legalized same-sex marriages failed to pass in the Knesset, Israel’s legislative assembly, in 2018. Same-sex couples enjoy civil benefits, including residency permits for the partners of Israeli citizens, and they were granted the right to use surrogates to have children in 2022. 

Israel stands apart from its neighbors in public attitudes toward same-sex couples: according to the 2016 ILGA survey, 49 percent of Israelis said same-sex marriage should be legal, compared to 19 percent of respondents in the United Arab Emirates, 16 percent in Egypt, and 14 percent in both Jordan and Morocco.

South Africa is the only sub-Saharan African country where same-sex couples can marry. The parliament legalized same-sex marriage in 2006 , less than a decade after the constitutional court struck down laws banning sex between men. The postapartheid constitution was the world’s first to protect people on the basis of sexual orientation, though the 2016 ILGA poll found only 40 percent of South Africans were in favor of legalizing same-sex marriage, and human rights monitors have reported failures by security forces to uphold rights of lesbians and transgender men.

“South Africa is the only sub-Saharan African country where same-sex couples can marry.”

Same-sex relations are illegal on much of the continent and are punishable by death in Mauritania and Sudan, as well as in parts of Nigeria and Somalia. Polling by Afrobarometer between 2016 and 2018 found that 78 percent [PDF] of Africans across thirty-four countries were intolerant of homosexuality. Although the African Union’s human rights commission adopted a resolution condemning violence against LGBTQ+ people in 2014, a group of African nations attempted to suspend the appointment of a UN expert charged with investigating anti-LGBTQ+ discrimination in 2016. In Ghana, where same-sex relations are an imprisonable offense, draft legislation would make identifying as gay or an LGBTQ+ ally a felony.

However, there have been recent advances: the Afrobarometer poll found that majorities in three countries in addition to South Africa—Cape Verde, Mauritius, and Namibia—are tolerant of homosexuality. In 2015 Mozambique decriminalized same-sex relations, followed by the Seychelles in 2016, Angola and Botswana in 2019, and Gabon in 2020. And in recent years, courts in Kenya, Uganda, and Zambia have ruled in favor of LGBTQ+ advocacy groups.

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• Introduction

Cultural ideals of marriage and sexual partnership

Religious and secular expectations of marriage and sexuality.

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same-sex marriage , the practice of marriage between two men or between two women. Although same-sex marriage has been regulated through law, religion, and custom in most countries of the world, the legal and social responses have ranged from celebration on the one hand to criminalization on the other.

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 .

Perhaps the earliest systematic analyses of marriage and kinship were conducted by the Swiss legal historian Johann Jakob Bachofen (1861) and the American ethnologist Lewis Henry Morgan (1871); by the mid-20th century an enormous variety of marriage and sexual customs across cultures had been documented by such scholars. Notably, they found that most cultures expressed an ideal form of marriage and an ideal set of marriage partners, while also practicing flexibility in the application of those ideals.

Among the more common forms so documented were common-law marriage ; morganatic marriage , in which titles and property do not pass to children; exchange marriage , in which a sister and a brother from one family marry a brother and a sister from another; and group marriages based on polygyny (co-wives) or polyandry (co-husbands). Ideal matches have included those between cross-cousins , between parallel cousins, to a group of sisters (in polygyny) or brothers (in polyandry), or between different age sets . In many cultures the exchange of some form of surety, such as bride service, bridewealth , or dowry , has been a traditional part of the marriage contract.

Cultures that openly accepted homosexuality, of which there were many, generally had nonmarital categories of partnership through which such bonds could be expressed and socially regulated. Conversely, other cultures essentially denied the existence of same-sex intimacy, or at least deemed it an unseemly topic for discussion of any sort.

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.

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Gay Marriage, Religion and the Court

Readers take issue with an opinion written by Justice Clarence Thomas and joined by Justice Samuel Alito.

To the Editor:

Re “ Thomas and Alito Raise Doubts on Same-Sex Marriage Ruling ” (news article, Oct. 6):

Without a hint of irony, Justice Clarence Thomas, addressing gay marriage in an opinion joined by Justice Samuel Alito, wrote that “those with sincerely held religious beliefs concerning marriage will find it increasingly difficult to participate in society.” The justices ignore the history of marginalization of L.G.B.T.Q. people in this country in every area of life from marriage equality to adoption to health care benefits.

Their concern that those who oppose gay marriage will be perceived as bigots without acknowledgment of the history of deadly bias against those in the L.G.B.T.Q. community is stunning. These justices’ inability to comprehend that those with religious beliefs can practice for themselves without taking away rights from other individuals indicates a deficit of both empathy as well as an inability to appreciate the rights of others outside their worldview.

Elaine Edelman East Brunswick, N.J.

Dear Justices Thomas and Alito:

You are the ones stigmatizing people of faith. Since when does religious freedom apply only to a subset of Christians? I am a religious Jew, but I don’t expect others to be prohibited from eating cheeseburgers or working on Jewish holidays. Likewise, no one is forcing Christians to have abortions or get married to someone of the same sex. They even have the benefit of Christmas being a national holiday.

The Supreme Court is responsible for protecting the constitutional rights of all Americans, even the ones who do not share the personal faith of its justices. Please don’t abandon the rest of us.

Janet Gordon San Francisco

The Case Against Encouraging Polygamy

Why civil marriage should not encompass group unions

Now that same-sex marriage is legal in all 50 states, writer Freddie de Boer wants its proponents to adopt a new focus. “ Where does the next advance come?” he asks in an essay at Politico. “Now that we’ve defined that love and devotion and family isn’t driven by gender alone, why should it be limited to just two individuals? The most natural advance next for marriage lies in legalized polygamy.”

The time is ripe, he argues, in part because there’s no longer a strategic reason to hold off. “To advocate for polygamy during the marriage equality fight may have seemed to confirm the socially conservative narrative, that gay marriage augured a wholesale collapse in traditional values,” he observes. “But times have changed; while work remains to be done, the immediate danger to marriage equality has passed.”

He proceeds to argue that “the case against polygamy is incredibly flimsy, almost entirely lacking in rational basis and animated by purely irrational fears and prejudice.” And he goes further, insisting that even if there are pragmatic reasons to deny state-sanction to polygamous marriage, we must extend it anyway because it is a human right. “We must insist that rights cannot be dismissed out of short-term interests of logistics and political pragmatism,” he says in the essay, adding in a followup blog post that “logistics are never sufficient reason to deny human rights.”

All three of those arguments strike me as wrongheaded.

I suspect that there are still strategic reasons for gay-marriage advocates to refrain from pushing for plural marriage; there are numerous rational arguments against state endorsement of group marriages; and having a polygamous marriage recognized and incentivized by the state is not a human right.

The law should, I think, allow groups of people to sleep in the same house, engage in group sex, and enter into contracts or religious arrangements of their liking. If a polyamorous family lived next door to me, I’d welcome them to the neighborhood and champion treating them with love and respect. But I think it would be imprudent to include their arrangement in civil marriage, with its incentivizing benefits, because if group marriage were to become normalized and spread beyond a tiny fringe the consequences for society could be significant and negative.

The Politics of Gay Marriage

​Gay marriage remains illegal in Australia, most of Asia, Africa, and Oceania, and parts of Europe and Mexico; the most liberal of those countries strike me as the most natural places for “the next advance” of marriage. I’d urge my fellow gay-marriage proponents to focus their efforts there––and legalizing group marriage in America right now would strengthen the hands of gay-marriage opponents abroad, confirming slippery-slope arguments that were raised and rejected here. If it ever made sense to avoid this fight as a matter of political strategy, it still does; if gay marriage was ever a more important priority​ than plural marriage, it remains so.

The Utilitarian Case Against Group Marriage

The strongest argument against state-sanctioned group marriage is how poorly it has worked out for women and low-status men in most times and places it has been tried.

Jonathan Rauch puts it succinctly :

There's an extensive literature on polygamy. Here’s a 2012 study, for example, that discovered “significantly higher levels of rape, kidnapping, murder, assault, robbery and fraud in polygynous cultures.” According to the research, “monogamy's main cultural evolutionary advantage over polygyny is the more egalitarian distribution of women, which reduces male competition and social problems.” ...monogamous marriage “results in significant improvements in child welfare, including lower rates of neglect, abuse, accidental death, homicide and intra-household conflict.” And: “by shifting male efforts from seeking wives to paternal investment, institutionalized monogamy increases long-term planning, economic productivity, savings and child investment.”

De Boer responds that “basic social science tells us that the very illegality and taboo that I’m trying to get rid of distorts the empirical picture. When a practice is illegal and taboo, that practice will necessarily be undertaken by people who tend towards extremist or outsider lifestyles. The fact that in America we associate polygamy with radical religious types is a function of that illegality and that taboo.”

But plural marriage is associated with those negative outcomes even in cultures where it is or was neither taboo nor illegal. Says De Boer, “The truth is that we don’t know what a wealthy Western society like America would look like with polygamous marriage because conservatism has prevented that society from existing.” He is right that we cannot be sure what the United States would look like if polygamy were legalized tomorrow, and perhaps America would be exceptional. It is also possible that the vast majority of plural marriages would occur within fundamentalist religious groups, as happened in the past; and that those plural marriages would be as coercive and destabilizing as has typically been true.

Either way, it is incomplete at best to assert that it is impossible to know what a polygamous society would look like “because conservatism has prevented that society from existing.” There are strong conservative arguments for risk-aversion and against experimenting with legalized group marriage, but there are equally strong technocratic, feminist, and progressive arguments against incentivizing polygamous marriage. If plural marriage is recognized by the state and practiced mostly in Berkeley and Williamsburg, those left-leaning arguments may well go unarticulated. I expect that they’ll be made forcefully, though, if the result of normalized plural marriage is, for example, a spike in the number of middle-aged religious conservatives who coerce their first wives into letting them marry teenagers summoned from fundamentalist Mormon sects or polygamous tribal societies abroad.

Numbers are the next-strongest argument against plural marriage. Here’s Rauch again:

...when a high-status man takes two wives (and one man taking many wives, or polygyny, is almost invariably the real-world pattern), a lower-status man gets no wife. If the high-status man takes three wives, two lower-status men get no wives... This competitive, zero-sum dynamic sets off a competition among high-status men to hoard marriage opportunities, which leaves lower-status men out in the cold. Those men, denied access to life's most stabilizing and civilizing institution, are unfairly disadvantaged and often turn to behaviors like crime and violence. The situation is not good for women, either, because it places them in competition with other wives and can reduce them all to satellites of the man.

Where plural marriage exists in America, this is already happening. As The New York Times reported in 2007, “ Over the last six years, hundreds of teenage boys have been expelled or felt compelled to leave the polygamous settlement that straddles Colorado City, Ariz., and Hildale, Utah. Disobedience is usually the reason given for expulsion, but former sect members and state legal officials say the exodus of males—the expulsion of girls is rarer—also remedies a huge imbalance in the marriage market. Members of the sect believe that to reach eternal salvation, men are supposed to have at least three wives.”

On his blog, De Boer responds to concerns about gender imbalance in the marriage market. My responses follow:

1. We already have lots of sad horny angry dudes.

That is not an argument recommending a policy that might create orders of magnitude more.

2. Government has no business trying to regulate the sexual or romantic “marketplace” so that men feel like they have an adequate number of partners to choose from. Society has no legitimate interest in ensuring that you feel like you have a good chance of getting laid.

Getting laid, which does not require marriage, is beside the point. And the point isn’t to ensure that men “feel like” they have an adequate number of partners to choose from––it is to ensure that both genders do have at least some realistic opportunity to participate in the institution of marriage, the same cause that drove so many impassioned proponents of gay marriage to broaden the institution. I’d further argue that the government does have an interest in regulating the sexual marketplace in this sense: Nature has given humanity a world with roughly equal numbers of men and women, a highly beneficial reality, and if that parity were threatened by large numbers of parents choosing the gender of their children, the government would, I think, have an interest in outlawing that practice to avoid the terrible consequences that could result from a significant imbalance.

3. Traditional marriage has traditionally invested men with superior power, too.

In practice, the power imbalance in polygamous unions has arguably been both greater and more resistant to egalitarian trends. And in any marriage that grows beyond two people, a new problem presents itself: the possibility of a majority ganging up on a minority.

4. That polygamy often functions to have one man who dominates the household and lots of subservient wives is a function of patriarchy. It’s our duty to destroy patriarchy. If we undertake that effort, the benefits will accrue to traditional marriage, to polygamous marriage, and to the unmarried.

By this logic, why not destroy patriarchy and then, only once you’ve succeeded, recognize group marriage?

5. That the idea of one wife with many husbands is just assumed away is itself reflective of ingrained sexism.

Ingrained sexism exists and will shape how polygamy plays out if it spreads! And even apart from ingrained sexism, men may turn out to be more averse to sharing a wife with other men than women are to sharing a husband with other women.

6. The notion that polygamy will necessarily and perpetually default to one husband, many wives because of inequality in social and economic capital between men and women seems to me to be a matter of declaring defeat in the battle against sexism.

Even if longstanding patterns reversed and women began to take multiple men as spouses in much higher numbers than the reverse, there would still be a category of losers––low status women, in this case––who would be denied the opportunity to marry by the inegalitarian structure of polygamous society.

7. While a huge amount of work remains to be done, we’ve seen remarkable progress in closing the gap in social and economic capital between men and women in recent decades. There are a lot of relationships out there, right now, where the woman is the partner with more social capital, more education, a better income, and better prospects. It’s one of the most obvious changes in educated, elite society. Under those conditions, I can easily imagine one wife taking multiple husbands. And while we should never presume progress, I think we have a clear duty to spread that changing condition in the relative social and economic value of men and women throughout society. If we do, you’ll find this problem goes away.

Among highly educated, high-income Americans in polyamorous relationships––not marriages, just relationships––a woman taking on multiple boyfriends is still, as best I can tell, the least common arrangement. There is every reason to think that the pattern would hold if polygamous marriages became common in secular society.

Apart from any of these other objections, polygamist unions seem likely to prove less stable than two-person unions, which aren’t particularly stable themselves these days. If each individual in a polygamous union is no more or less likely to seek a divorce than a person in a monogamous union, the failure rate would still be at least a third higher, assuming a three-person grouping, and higher still for larger plural marriages. That isn’t sufficient reason to punish people for attempting polyamorous unions, but seems like a good reason to avoid encouraging them.

The option of plural marriage might also destabilize some two-person unions, with one spouse regarding the existing arrangement as “till death do us part,” only to be confronted with a spouse who, while averse to divorce, is pushing for a new member of the marriage. “Either she joins us,” a husband might say, “or I’m out.” It’s hard to say if changing norms would make that scenario more likely than it is now.

Then there are the logistical problems that plural marriage presents, which would seem to require altering core features and benefits that presently make up civil marriage. Mary Anne Case, a law professor at the University of Chicago, has pointed out that the legal institution is largely concerned with the "designation, without elaborate contracting, of a single other person third parties can look to in a variety of legal contexts.” Three-, four-, or five-person unions would require abandoning that aspect of marriage.

Americans can presently marry a foreign citizen and bring them here, after jumping through bureaucratic hoops, eventually sponsoring them for U.S. citizenship. Would the advent of plural marriage require that this practice be ended? Or would group marriages include the right to confer unlimited citizenships?

When I got married I was eligible to add my wife to my employer-sponsored health insurance. In a world of plural marriage, would this benefit of the institution end, or could I add as many people as I liked to my employer’s insurance plan?

If the parties to a plural marriage disagree about a medical decision that needs to be made on behalf of an unconscious spouse, who would get to decide the matter? Who would receive the Social Security survivor benefits if the patient died? These logistical matters add real costs to recognizing plural marriages––and they lessen the simplifying benefits that marriage confers on society. They also suggest that expanding the definition of civil marriage to encompass more than two parties is a far more radical, fundamental change than was recognizing unions of same-sex couples.

Plural Marriage Is Not a Human Right

Is the state denying a human right when it declines to recognize polygamous marriages? De Boer answers affirmatively, but does not explain what makes something a human right that must be recognized irrespective of its consequences. I could surmise a rationale if someone put life, liberty, and the pursuit of happiness––or food, shelter, and medicine––into a category called human rights.

I cannot surmise the rationale for putting “equal treatment for polygamous unions” in that category. If De Boer objected, as many libertarians do, to the state putting a thumb on the scale and incentivizing marriage with benefits that are denied to the unmarried, to business partners, to spouses, and to non-romantic friends, I’d grant the coherence of his complaint; but as best I can tell, he’s fine with unequal treatment for the married and unmarried so long as the married include polygamists.

The closest he comes to a rationale is arguing that “consenting adults who all knowingly and willfully decide to enter into a joint marriage contract, free of coercion, should be permitted to do so, according to basic principles of personal liberty,” adding “the preeminence of the principle of consent is a just and pragmatic way to approach adult relationships in a world of multivariate and complex human desires.”

I agree that consenting adults who decide to enter contracts while free of coercion should be permitted to do so, but I disagree that the state is obligated to call these contracts “marriages,” to extend to the parties all benefits of civil marriage, and to rewrite those attributes of civil marriage that are inseparable from two-person unions. In declining to do so, the state does not deny anyone equal protection under the law.

Conclusions

There could be benefits to recognizing polygamous relationships. Casey E. Faucon, a fellow at the University of Wisconsin Law School, asserts that there are 150,000 polygamists now living in the U.S., and that many second and third polygamous wives “are left without any legal recognition or protection,” a situation that might be remedied were they brought into some sort of regulatory framework. She claims to have a set of regulatory rules that “ensure consent, prevent unequal bargaining power between the parties, and protect individual rights, all while addressing and respecting the religious beliefs that lead polygamists into these otherwise taboo marital arrangements.” Perhaps some formal recognition short of marriage would be salutary.

But the assertion that “the case against polygamy is incredibly flimsy, almost entirely lacking in rational basis and animated by purely irrational fears and prejudice” could not be more wrong. Adherents of that position are blind to the many rational, good-faith concerns about the normalization of polygamous unions, and deaf to the conservative logic behind special benefits for unions between a man and a woman, a man and a man, or a woman and a woman. There are empirical, cultural, and pragmatic reasons to incentivize civil marriages of that sort.

And if civil marriage’s benefits are extended to a practice as historically and potentially destabilizing as polygamous marriage, it will undermine the conservative case for conserving civil marriage and strengthen the libertarian case that the state should get out of the business of incentivizing any particular relationship structure.

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The best argument against same-sex marriage

FILIPINOS, SPORTING #LoveWins hashtags and slapping rainbows onto their Facebook profile pictures, have been swept up in the euphoria over the US Supreme Court decision declaring same-sex marriage a fundamental human right. Law professors are heartened to see Justice Anthony Kennedy’s poetic Obergefell decision shared in social media. However, we must also read the powerful dissents and ask why we might prefer that our unelected justices decide this sensitive issue instead of our elected legislators.

Inquirer 2bu quoted teenagers opining that anyone with the capacity to love deserves to have his/her chosen relationship validated. Obergefell’s logic is equally simple. Forget “substantive due process,” “decisional privacy” and “equal protection.” It takes the simple premise that human liberty necessarily goes beyond physical liberty, and includes an unwritten right to make fundamental life choices. Choosing a life partner is one such fundamental choice and the decision of two people to formalize their relationship must be accorded utmost dignity.

The typical arguments against this simple idea are so intellectually discredited that Obergefell no longer discussed them. (My Philippine Law Journal article “Marriage through another lens,” 81 PHIL. L.J. 789 [2006], tried applying them to bisexual and transgender Filipinos.)

One cannot solely invoke religious doctrine, even if thinly veiled as secular “morality.” Religious groups may confront this issue but not impose their choices on others. Their often vindictive tone contrasts sharply with Kennedy’s, and increasingly alienates millennials who revel in individuality. Those criticized as religious zealots should at least strive to be up-to-date, more sophisticated religious zealots.

The most common argument, procreation, is also the easiest to refute. Philippine Family Code author Judge Alicia Sempio-Diy wrote: “The [Code] Committee believes that marriage … may also be only for companionship, as when parties past the age of procreation still get married.”

Another argument reduces marriage to a series of economic benefits and suggests a “domestic partnership” system to govern same-sex couples’ property and other rights. This parallels having separate schools for white and black children and claiming they are equal because both have schools. It implies that some relationships so lack dignity that they must be called something else.

Protecting the “traditional” definition of marriage is too subjective. Obergefell reminds that traditional definitions evolve and once prohibited interracial and accepted arranged marriages, and “it is unrealistic to conclude that an opposite-sex couple would choose not to marry simply because same-sex couples may do so.”

Recent last-ditch arguments alleged harm to children. No party to Obergefell contested that same-sex couples may build nurturing families after adopting or tapping medical advances to produce babies with related DNA. Prohibiting same-sex marriage harms children by making such families unstable, as only one parent may legally adopt and have rights in relation to a child.

With all these discredited, the Obergefell dissents simply raised that marriage is so central a social institution that it is better redefined by democratic process than unelected judges. Proponents may consider opponents homophobic, bigoted, narrow-minded religious zealots, but none of these disqualifies one from being a citizen. Chief Justice John Roberts argued that proponents should have relied on how popular opinion was rapidly shifting in their favor than ending all debate by court order.

Justice Antonin Scalia decried how the US Constitution was turned into a “fortune cookie” in a “judicial Putsch” that declared a radical unwritten right. Roberts cautioned that the first cases to use similar doctrine upheld slavery and struck down labor regulations in the name of laissez faire economics. Although invoking human rights is not subject to an election, it is wise to consult society in defining these, and Obergefell stressed the lengthy public debates the United States experienced at every level.

One thus asks why an instant judicial solution is more appealing than backing Akbayan Rep. Barry Gutierrez’s proposed same-sex marriage bill. The Philippines has not had serious public debate given how we recently focused on reproductive health, and our high court has not even explicitly recognized “decisional privacy.” Further, the petition to legalize same-sex marriage recently filed at our high court is blatantly deficient.

The petition (like the anti-RH petitions) does not even identify a client. There is no actual Filipino same-sex couple, unlike the real Mr. Obergefell who sought to be named the spouse on his partner’s death certificate after their deathbed wedding. This violates the most basic rule that judicial power may only be used in an “actual case” and the high court should have instantly thrown out the no-case petition (like the anti-RH petitions). The petition also has glaring errors (like the anti-RH petitions). It invoked the Philippine privacy decision Ople vs Torres, which involved information in government databases and has nothing to do with the “decisional privacy” of US same-sex marriage debates. Even liberals should be hard-pressed to support this lest they be intellectually inconsistent and validate the anti-RH petitions’ worst features.

Any citizen lacking the patience to back Gutierrez’s bill has every right to short-circuit democracy by seeking an order from unelected judges. One hopes our high court insists that it be sought properly.

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Thailand becomes first South-East Asian country to legalise same sex marriage

Thailand has become the first nation in South-East Asia to legalise same sex marriage, with the country's Senate approving the landmark bill on Tuesday afternoon.

The legislation was expected to pass after it cleared the country's House of Representatives in a near-unanimous vote in March.

Despite Thailand's bustling gay bars and prominent transgender community making it a mecca for LGBTQ+ tourists, until now local same-sex couples there have been unable to marry.

The law will take effect 120 days after its announcement in the Royal Gazette, so the first same sex weddings may take place later this year.

Couples who have been waiting years have hailed the move as a historic moment that will afford them rights only reserved for spouses.

Photos of Anticha and Worawan, dressed in floor-length white gowns and trailed by rainbow flags, getting married at Bangkok's first Pride Festival two years ago went viral, but they are still not legally married.

Now they will be able to change that, and Anticha Sangchai is elated.

"This will change my life and change many Thai people's lives, especially in the LGBT community," she said.

"It is a historical moment and I really want to join with my community to celebrate this moment.

"I want to send a message to the world that Thailand has changed. Even though there are still many issues, this is a big step for us."

The couple first met during the COVID-19 pandemic and made a home together. However, they have spent years fighting for legal recognition of their love.

"The hardest part is the government," Ms Sangchai said. 

"It's not the people, not our family, not society. It's about the law because the government is quite conservative.

"We don't need special laws, we just want the same laws as straight people, as everyone in Thailand.

"We just want to live together and take care of each other."

She said people's perceptions of Thailand as a welcoming place for the community had long been flawed.

"The image of Thailand is that this place is very welcoming for LGBT tourists, but the truth is they don't know about the situation here, but I think that will change in the future."

A study by the United Nations Development Programme (UNDP) in 2019 found that many people in the community still faced discrimination despite a generally accepting culture.

There were an estimated 3.7 million LGBT people in Thailand in 2022, according to LGBT Capital , a private company which models economic data pertaining to the community around the world.

For the young couple from Bangkok, being able to marry also has very real practical implications.

If they want to have children through IVF, Ms Sangchai says they will need a marriage certificate first.

"I am quite concerned about the time because we are getting older every day, and the older you get the more difficult it is to have a healthy pregnancy," she said.

"So we've been really wanting this law to pass as soon as possible."

As to whether Ms Sangchai and her partner will have another ceremony, they say one wedding was enough.

"That fulfilled us already but I want to support other couples to have a moment like us."

"We will have a very small party for just only the family and we plan to join with the friends who plan to access this law too."

'I might be the first one to get married under the same sex marriage law'

Cabaret performer Jena is excited Thailand's laws are finally catching up with the nation's image.

She said most people who watched the largely LGBTQ performers in Calipso Cabaret had no idea they could not marry.

"It is a surprise for them because foreigners come here because there is freedom, a nice lifestyle and it's easygoing, but we still don't have equal rights," she said.

"It is a basic human right that everyone should have.

"I feel excited and … I believe I might be the first one to get married under the same sex marriage law."

She too had worried about the practical implications of being unable to marry.

"For example, if myself or my partner had to go to hospital or there was an accident that needs consent for an emergency operation, without a marriage certificate we couldn't sign it," she said.

She now wants the government to move forward with a law to allow transgender people to amend their gender on official documents.

"It is an act to show human equality and it is really important because without it we're still a minority without rights equal to men or women."

"There is still gender discrimination but if we have this law, everyone is human."

Push for LGBTQ retirement hub to cash in on the pink dollar

Thailand has long been famous for LGBTQ tourism and there are now hopes this new law could allow the country to cash in on the aging members of the community.

Chaiwat Songsiriphan, who runs a health clinic for people in the LGBTQ community, said laws preventing same sex marriage were the last barrier holding the country back from becoming a gay retirement hub.

"Thailand has an LGBTQ-friendly environment since Thai culture is quite flexible," he said.

"One of my foreigner friends, a gay friend, told me that when he's in his country he has to pretend to be straight … but when he comes to Bangkok he said you can be as gay as you want.

"When we talk about retirement or a long-term stay for the rest of their lives, what people need is … food, good healthcare services, transportation, homes.

"I think Thailand has it all at a very affordable price."

He said it could help give the country a desperately needed economic boost.

"This will have a lot of benefits for Thailand's economy because when we talk about retirement it's people literally bringing all the money they have earned for the rest of their working lives to spend and invest here," he said.

He said he, like the rest of the community, was thrilled by the news.

"It's not about a privilege, it's just equality," he said.

"We are we also humans, so we should be able to marry the one we love."

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