One of the issues that elicit a broad range of views from politicians, scholars and intelligentsia is rights for same-sex couples. At the very minimum, these rights would entail legal recognition for same-sex partners and enable them to adopt children. As same-sex partnerships gain greater acceptance in society, the members of this community expect to attain financial benefits and custodial rights that are on par with heterosexual couples. This essay will foray into the main arguments for and against such legal grants by way of citing scholarly sources.
It deserves mention in the outset that the political atmosphere here in the United Statesis much more hostile to the practice of homosexuality than elsewhere in the developed world. The primary resistance to homosexuality in the country comes from the powerful and influential Republican Party, especially the more orthodox of its members. The functioning of the party over the years suggests a disregard for the notion of separation of State and Church. Consequently, much of its political agenda is inspired by the dictates of the Bible (Ponnuru, 2008). Given the fact that the Constitution allows individual states to design their own laws within a broad general framework, there has been uneven progress across the states. For example, it wasn’t until 26th June, 2003 that “the U.S. Supreme Court ruled in Lawrence v. Texas that states may not outlaw ‘sexual practices common to a homosexual lifestyle’, striking down a Texas law which had prohibited homosexual acts of oral and anal sex” (Gomes, 2003). A few months later, the Massachusetts Supreme Court came up with a decision to legalize same-sex marriages. The distribution of powers between the Federal and State governments provides the necessary balancing mechanism. Considering the distinct cultural flavors of the individual states in theUnion, this arrangement is quite prudent and it also satisfies James Madison’s expectation of the Constitution.
Although conservatives assert that marriage is between a man and a woman, the changing nature of the demographics demands a newer approach. As the following passage suggests, the time has come to include homosexual couples within the ambit of marriage: “recent census data reveal that the number of committed same-sex couples in the United States continues to rise, as does the number of same-sex couples raising children. Legal recognition of these relationships is vital to protecting the emotional and economic well-being of these families. Furthermore, legal recognition must be on an equal plane with heterosexual marriage –‘separate but equal’ is never equal” (Gomes, 2003).
Many public opinion polls have indicated that there is growing acceptance of homosexuality and even legal recognition for homosexual couples among the general population. But the public consensus has not fully translated into legislative amendments, for the simple reason that the same provisions in the Constitution that help moderate measures prevail over radical changes, also slows down progressive changes. For example,
“previous triumphs for same-sex marriage have occurred in states where it is difficult to amend the constitution. In 1999,Vermont became the first state to recognize same-sex civil unions. Its supreme court ordered the breakthrough, and opponents had no real recourse.Massachusetts’s constitution is only slightly easier to amend.California’s constitution is, on the other hand, notoriously easy to amend” (Davidoff, 2006).
Despite there being attempts by liberals to bring forth many of the rights and benefits available to married couples, including “health insurance, pension coverage, and hospital visitation rights”, the vocal and politically powerful opposition from the conservatives has the potential to jeopardize progress made so far. In other words, if the conservatives would have their way and enact sweeping amendments, it would
“ban civil unions and allow social conservatives to challenge the ability of governmental entities and private companies to offer domestic partnership benefits. Also in jeopardy, say legal experts, are parenting and real estate agreements, wills, powers of attorney, and other valuable legal documents that gay and lesbian couples are increasingly using to achieve some of the protections automatically provided by marriage” (Kuhr, 2006).
This again goes on to show the divide between public opinion and public policy in American polity. While there is evidence for greater acceptance and tolerance for new and variant interpersonal relationships, a small but a powerful group of conservative elites are keen on maintaining status quo. In this context it does seem that James Madison’s vision for the role of the Constitution in shaping public policy is not fully actualized. The powerful political elites from both sides of the aisle can easily veto the demands and aspirations of the large majority of the general population.
Davidoff, J. (2006, August). No Wedding Bells: Why Banning Same-Sex Marriage Spells Disaster., The Progressive, 70, 22+.
Gomes, C. (2003, September/October). The Need for Full Recognition of Same-Sex Marriage., The Humanist, 63, 15+.
Kuhr, F. (2006, May 23). The Science of Same-Sex Marriage: With the Two-Year Anniversary of Same-Sex Marriage in Massachusetts Comes a Flood of Studies, Books, and Research Papers on the Benefits of Marriage for Gay Couples and the Harm Caused by Denying It. The Advocate 34+.
Ponnuru, R. (2008, June 16). Back at the Altar: Same-Sex Marriage Returns to Politics. National Review, 60, 24.