Third Party & Independents Archives

Same Sex Marriage May Lead to Unintended Consequences

By Phillip Whitten

This week the Supreme Court will hear arguments on two cases that potentially could affect the United States as profoundly as Brown v. Board of Education (1954). The first, to be argued on Tuesday, challenges California’s ban on gay marriage - approved by the state’s voters four years ago - on the grounds that it violates the equal protection and due process clauses of the 14th Amendment to the Constitution.

Those clauses guarantee that "...nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The second, which will be argued the following day, challenges the legality of the federal Defense of Marriage Act (DOMA) and its definition of marriage as the union of one man and one woman.

Nearly half a century ago, in Loving v. Virginia (1967), the Court overturned bans on interracial marriage, reasoning that the "freedom to marry" was a basic civil right. Chief Justice Earl Warren wrote that the freedom to marry...a person of another race resides within the individual, and cannot be infringed by the State."

Proponents of gay marriage will hold that precisely the same argument can - and should - underlie a decision to overturn gay marriage bans in 37 states.

Same sex marriage advocates will counter that same sex couples are exactly like opposite sex couples and that they should be treated the same. Their relationships are based upon love. and the law should not penalize them in such areas as taxes, inheritance rights and access to a partner's medical records. Proponents of "traditional marriage" - one man and one woman -- will hold that the institution lies at the very foundation of our civilization and, in fact, is the glue holding society together.

They, too, have a point.

Yet both sides are missing another, essential point, one that urges the Court to craft a narrowly-based decision , such as referring such issues back to the individual states. That point is that a sweeping redefinition of marriage could become a classic slippery slope, leading to unanticipated consequences such as the eventual acceptance of virtually any relationship involving any number of adult members of our species as "marriage."

The most likely is polygamy.

Think that outcome is ridiculous? Think again. The argument for polygamy is even stronger than the argument for gay marriage. All of the economic and legal arguments are the same, as is the observation that people in a polygamous relationship often love each other..

Furthermore, many defenders of "traditional marriage" argue that the one-man one-woman arrangement is ordained by God and sanctified in the Bible. Not so. .Many of the towering figures in the Bible - from Abraham to Solomon - had multiple wives.

The greatest difference between polygamy and monogamy is this: To the best of my knowledge, no human society - from the dawn of civilization through the 20th century - has recognized same sex marriage. In contrast, the ideal form of marriage in the majority of known societies, both past and present - is polygyny - one man with multiple wives - even though, in practice, monogamy has been the most common form of actual marital arrangement.

Polyandry - one woman with multiple husbands, often brothers, -- is far less common and found mainly in the Himalaya mountains and in parts of Africa. (The Luo people of Kenya, the ethnic group to which President Obama's father belonged, are one such group. )

The decision in the two cases before the Court has implications far beyond the fate of the plaintiffs or the immediate overturning of discriminatory laws. A modest decision - for example, one that distinguishes between what we call opposite and same sex couples but absolutely provides both with equal protection under the 14th Amendment - might well serve our society better than a sweeping, immediate dismantling of existing discriminatory laws. Call one "marriage" and the other "civil unions," but provide them with equal treatment.

At least until we can figure out how we, as a society, want to resolve this marriage conundrum.

PHILLIP WHITTEN is the author of Anthropology: Contemporary Perspectives and Co-Editor of the authoritative Encyclopedia of Anthropology.

Posted by MichaelMears at March 27, 2013 9:35 AM
Comment #363389
To the best of my knowledge, no human society - from the dawn of civilization through the 20th century - has recognized same sex marriage.

“Evidence exists that same-sex marriages were tolerated in parts of Mesopotamia and ancient Egypt. Artifacts from Egypt, for example, show that same-sex relationships not only existed, but the discovery of a pharaonic tomb for such a couple shows their union was recognized by the kingdom. Meanwhile, accounts of the Israelites’ departure for Canaan include their condemnation of Egyptian acceptance of same-sex practice. In actuality, same-sex marital practices and rituals are less known in Egypt compared to Mesopotamia, where documents exist for a variety of marital practices, including male lovers of kings and polyandry. None of the recorded laws of Mesopotamia, including the Code of Hammurabi, contain restrictions against same-sex unions despite the fact that marriages are otherwise well regulated.”

“Examples of same-sex behavior, including transgenerational same-sex unions, have emerged everywhere from New Guinea to Polynesia (and were also prevalent in feudal Japan). The most numerous early accounts of same-sex, transgendered unions exist from European encounters with indigenous people in both North and South America.

The originally derogatory term berdache described transgendered “two-spirit” people prevalent in most of the tribes. Individuals, both male and female, assumed characteristics and roles of the opposite gender and lived out those roles within their tribes. These relationships are easily perceived as “homosexual” by outside observers, but it is clear that the Western delineations of heterosexuality and homosexuality would not have been understood within these societies. Nevertheless, these same-sex marriages had equal cultural and legal recognition within their communities and offered special advantages for the couples, particularly for women berdaches (Rupp, Eskridge).

Similar berdaches and same-sex-style marriages were found among cultures in Africa, and also included an arrangement known as “female husbands.” Often barren, these women assumed the cultural roles of men, including having the same rights as men—which included seeking damages if her wife should have relations outside of their union without her consent. The berdache tradition of same-sex marriage, in various forms, is also well documented throughout Asia, from eunuchs in China to hijras in India.”

Posted by: Rhinehold at March 27, 2013 2:48 PM
Comment #363390
The rise of Christianity and dominance of the church in Medieval Europe was largely detrimental for same-sex relationships. There is some evidence that same-sex relationships enjoyed relative freedom through the early Middle Ages. European secular law had few recorded limitations on same-sex behavior, and there is even evidence in the literature of the clergy of compassion for homosexuality, notably within the clergy itself (Pickett).

The church seemed to be tolerant of same-sex unions in practice and made some provisions for ceremonies commemorating the companionate brotherhood. John Boswell’s Christianity, Social Tolerance, and Homosexuality documents homosexual marriages performed by gay clerics dating back to the fourth century.

Posted by: Rhinehold at March 27, 2013 2:49 PM
Comment #363467

Nice information Rhinehold, and more the reason that this should be handled by the legislative and not the judicial. If a society is tolerant of a behavior it will be reflected in its laws. And it’s happening anyway; maybe not at the pace that activists want but that’s how our system is designed. If I were to guess the Court will figure out a way to punt on both of them, but maybe Kennedy will swing DOMA on a 10th Amendment argument.

I remember arguing with the poster CF back in the day on this because I said that if it were my vote I would vote against same sex marriages but if other States voted for same sex marriage that would be fine with me. He didnt’ like that answer, and the irony of a 10th Amendment solution from the liberal side kind of makes me chuckle.

Posted by: George at March 28, 2013 11:14 AM
Comment #363468
If a society is tolerant of a behavior it will be reflected in its laws.

The problem, George, is that when dealing with civil rights, we can’t just let the legislature ‘handle it’. That’s how we ended up with Dred Scott, Women not being allowed to vote, Loving V Virginia (mixed marriages), etc.

In fact, this very issue is WHY we have a Supreme Court, to make sure that the majority, through the legislature, does not overrule the rights of the minority.

Yes, eventually all states will cave into pressure to change their laws to allow gay marriage, but how long is that going to take and how many people are going to have their rights taken away from them during that time? We just had the last state sign the 13th amendment, in the last two years, remember? Do you want to leave it up to the states and let a couple states hold out and violate the rights of individuals?

How many people do you want to allow the majority in a state to destroy through their unconstitutional abuses? Would you feel any different if it were your rights they were attacking?

Posted by: Rhinehold at March 28, 2013 12:07 PM
Comment #363472

And letting the black robes handle it, Rhinehold, is how we ended up with RvW. We’re still talking about that one. Do you really want to cede the power you propose to 9 unelected judges? Sorry but the Supreme Court is no place to lead social change. A Representative Republic is best when its elected representatives vote or vote to allow a referendum. It’s messy, it’s ugly, it takes time, and lots of times nobody is happy. But it beats the alternative.

And having 50 individual States to reflect, geographically, the morals of it people via the legislation it passes is a hec of a lot better than having the Judges do it for them.

As for attacking one’s rights, well that’s interesting. If I decide to enter into a gay marrige them I’m not barred from it; there is no penalty for it just no recognized benefit under law. So where have my “rights” been attacked? That’s a great distinction from Loving V Virigina where the couple was put in jail. In the end can the Government provide any benefit to one group of citizens where another group of citizens does not qualify for the benefit? I suppose the home owner’s tax deduction is next.

Posted by: George at March 28, 2013 4:12 PM
Comment #363473
We’re still talking about that one.

I’m not. Do you REALLY think that had the Supreme Court not upheld our right to privacy in the 9th amendment and let the states decide on abortion that we would be talking about it LESS than we are now?

But it beats the alternative.

I would have to disagree with you there. There is a place for the Supreme Court and Defending Minority Rights against the Majority is that place. Otherwise, why have it? Just get rid of that branch of the government then if it isn’t there to defend those who are being trampled upon by the majority’s use of force through legislation.

Or do you want it there to protect YOUR rights, you just don’t see the point in them protecting someone else’s?

If I decide to enter into a gay marrige them I’m not barred from it; there is no penalty for it just no recognized benefit under law. So where have my “rights” been attacked?

14th amendment: All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Tell that to Edith “Edie” Windsor. She was married to her spouse, Thea Spyer after they had been together for 40 years. In 2009 Thea died and because of DOMA not recognizing their marriage under the law, Edie was forced to pay an additional $363,000 in federal estate taxes on her inheritance of her wife’s estate.

Tell that to the person who is denied visitation to their spouse in a hospital because they are not ‘family’ as defined by law.

Tell that to the person who is not given custody of their adopted children because their marriage was not recognized by law.

Tell that to the spouse of a US Soldier who was not notified of their death while fighting for our country in a foreign land because their marriage was not recognized by law.

There are over 1,163 *FEDERAL* codified privileges that are given to married couples that are not given to homosexual couples in a clear violation of the 14th amendment. That does not count the STATE rights and privileges that are denied to them.

Instead of just assuming that homosexuals are ok with ‘equal but different’ which was ruled unconstitutional in Brown V Board of Education, why not ask one what they think? Get their opinion instead of thinking you have enough knowledge to assume that…

In the end can the Government provide any benefit to one group of citizens where another group of citizens does not qualify for the benefit?

Buying a home is an action, being homosexual is not. Just as being black is not, or being a woman. There is a huge difference between being something and doing something. If you seriously can’t see the difference then you truly do appear to think that homosexuals are somehow ‘less than’ heterosexuals in some way…

Posted by: Rhinehold at March 28, 2013 4:44 PM
Comment #363474

I value political debate Rhinehold and have enjoyed plenty of your posts in the past, but that last parapgraph is a pretty low way to end the discussion.

Posted by: George at March 28, 2013 4:56 PM
Comment #363475

Sorry George, but when you equate ‘being gay’ with ‘buying a house’, you are going to have to accept how that makes you look. If you don’t believe that, I would suggest not making such flawed arguments in the future.

Posted by: Rhinehold at March 28, 2013 5:04 PM
Comment #363630

I could not care less if two dudes or two chicks want to marry each other, or whatever you want to call their union. I also could not care less if a dude wants more than one wife. Rather, I would feel sorry for him. I don’t see the harm in it. How does allowing these practices harm me or my family?

Posted by: Joseph at April 2, 2013 1:23 AM
Comment #363853

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