Gay Marriage, The American Controversy

June 6, 2012, by Law Offices of James V. Sansone
By Law Offices of James V. Sansone on June 6, 2012 8:00 AM |

constitution-gay-marriage-2.jpgSame-sex marriage in the United States is not recognized by the federal government, but such marriages are recognized by some individual states. The lack of federal recognition was codified in 1996 by the Defense of Marriage Act. Starting in 2004 several states, Massachusetts being the first, began to grant marriage certificates to gay couples.

Such licenses are currently granted by six states: Connecticut, Iowa, Massachusetts, New Hampshire, New York, and Vermont, plus Washington, D.C. and Oregon's Coquille and Washington state's Suquamish Indian tribes. The states of Washington and Maryland have passed laws in 2012 to begin granting same-sex marriage licenses, but each may be delayed or derailed by November 2012 voter referenda.

President Barack Obama's decision to support gay marriage has led to many political pundit debates about how it may influence the presidential election and the future of gay marriage in the United States.

So why is gay marriage so controversial in the United States? According to the Huffington Post, one major factor is that conservative America is essentially the only part of the modern Western world where a fundamentalist approach to Christianity is prevalent.

While Connecticut, Iowa, Massachusetts, New Hampshire, New York, Vermont, and Washington, D.C. recognize gay marriage, multiple other states have passed constitutional amendments barring gay marriage, as North Carolina recently did. But the fact that gay marriage is usually illegal in America is not exceptional in the Western world. It is only lawful in Belgium, Canada, Iceland, the Netherlands, Norway, Portugal, Spain, and Sweden
In 2003 the United States Supreme Court held that consensual sex between men could not be criminalized. The Court's 6-3 decision concerned a Texas law. The majority held that the law was unconstitutional because it infringed on fundamental liberty and reflected "stigma" against homosexuals. Justice Antonin Scalia, wrote a sharp dissent. Scalia posited that the criminalization of gay sex is a legitimate state interest. "Many Americans do not want persons who openly engage in homosexual conduct as partners in their business, as scoutmasters for their children, as teachers in their children's schools, or as boarders in their home," he underlined.

Both liberals and conservatives in most other Western countries have evolved towards modern norms of tolerance on gay rights. However, a large segment of conservative America has strongly resisted this process.

Moreover, until "Don't Ask, Don't Tell" (DADT) was recently repealed, America stood alone in the West in continuing to ban gays from the military, a policy characteristic of Third World countries and Islamist nations.

The clash over gay rights is an extension of the conflict between traditional patriarchy and the more egalitarian gender system of modern times. The legalization of same-sex marriage further threatens the American religious right's conception of marriage as a sacred institution. Religious conservatives fear that it will be at risk if its definition becomes a mere matter of secular government policy. The "sanctity of marriage" will be further undermined if the institution is open to "profane" homosexual unions. Unlike many American conservatives, liberals tend to regard marriage primarily as an expression of love and commitment, often taking God out of the equation.

What I have learned from my law practice about gay marriage is this, homosexual couples have the exact same relationship problems as heterosexual couples do. Last year I was involved with a same sex domestic partner dissolution where my client was required to pay "partner support", (spousal support for heterosexual couples), based on a substantial disparity of income and the length of the partnership. After court my client looked over at me and stated, I used to want equal rights, but I am not so sure now.

The question of gay rights illustrates the great polarization between contemporary liberal America and conservative America. Only time will tell which side will prevail. Supporters of same sex marriage are hopeful that just like the Supreme Court's holdings in Dred Scott and Plessy v. Ferguson were eventually overruled, so too will laws banning same sex marriage.

The Law Offices of James V. Sansone is located in Santa Rosa, California and serves clients with their family law needs, including domestic partner dissolutions and dissolution of gay marriages, throughout the North Bay area of California, including Sonoma County, Mendocino County, Lake County, Santa Rosa, Napa, Petaluma, Cotati, Rohnert Park, Sebastopol, Healdsburg, Sonoma, Kenwood, Glen Ellen, Windsor, Bodega Bay, Ukiah, Willits, Clearlake, Lakeport and Kelseyville.