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Revision as of 16:11, 7 May 2008 view sourceRealitycubed (talk | contribs)15 edits removed scare quotes. If it is legally recognized than it is a legal state marriage, quotes are not necessary.← Previous edit Revision as of 18:50, 7 May 2008 view source 208.68.153.193 (talk) ←Replaced content with 'poop.'Next edit →
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{{Mergefrom|Same-sex marriage and procreation|Talk:Same-sex marriage and procreation#Merger proposal|date=February 2008}}
{{LGBT}}
{{SSM}}
'''Same-sex marriage''' is a term for a ]ally, ]ly, or ] recognized ] in which two people of the same sex live together as a family. Other terms for this type of relationship include "gay marriage," "gender-neutral marriage," "equal marriage," "lesbian marriage," "same-sex civil marriage," "marriage equality," "homosexual marriage," "single-sex marriage," "same-gender marriage," or just simply "marriage."

== Debates over terminology ==
Proponents of same-sex marriage often use the term "equal marriage" to stress that they seek equality as opposed to special rights;<ref>{{cite web
|url = http://www.samesexmarriage.ca/
|title = Equal Marriage for Same-Sex Couples
|publisher = Kevin Bourassa and Joe Varnell
}}</ref> the term "equal marriage" has also been used by feminists to describe any marriage, regardless of the sex of the partners, in which the partners have equal status within the marriage.<ref>{{cite web
|url = http://www.now.org/issues/lgbi/marr-rep.html
|title = Same-Sex Marriage is a Feminist Issue
|publisher = National Organization for Women
|date= 17 May 2004
|accessdate = 2007-03-08
}}</ref> Opponents argue that equating same-sex and opposite-sex marriage changes the meaning of marriage and its traditions.<ref>{{cite web
|url = http://atheism.about.com/od/gaymarriage/a/MarriageSacred.htm
|title = Arguments Against Gay Marriage: Marriage is a Sacred Religious Sacrament
|publisher = About.com
|author = Austin Cline
|accessdate = 2007-03-08
}}</ref> Some opponents use the term "homosexual marriage," and surveys have suggested that the word "homosexual" is more stigmatizing than the word "gay."<ref>{{cite news
|url = http://www.advocate.com/news_detail_ektid17177.asp
|title = New Poll: Americans Ambivalent About Homosexuality
|publisher = the Advocate
|date= 24 May 2005
|accessdate = 2007-03-08
}}</ref> Some publications that oppose same-sex marriage put the word marriage in ] when referring to it. One notable publication that practices this is '']''. ], a writer for the conservative American media watchdog group ], agrees with this method, arguing that "marriage" is a word that same-sex couples merely want to apply to themselves, but have no legal ability to do so in most states.<ref>{{cite news
|url = http://www.aim.org/media_monitor/A466_0_2_0_C/
|title = Honest Versus Slanted Journalism
|publisher = Accuracy In Media
|author = Kincaid, Cliff
|date= 26 Feb 2004
|accessdate = 2007-03-08
}}</ref> Same-sex marriage supporters argue that it is editorializing and implying inferiority, and point out that the quotes are even used when referring to same-sex marriages in locations where such unions are legal.<ref>{{cite web
|url = http://atheism.about.com/b/a/087136.htm
|title = Washington Times Dismisses Gay “Marriages”
|publisher = About.com
|author = Austin Cline
|accessdate = 2007-03-08
}}</ref>

Some have suggested reserving the word "marriage" for religious contexts, and in civil and legal contexts using a uniform concept of ]. ] professor ], for instance, wrote that such an arrangement would "strengthen the wall of separation between church and state by placing a sacred institution entirely in the hands of the church while placing a secular institution under state control."<ref>{{cite news
|url = http://www.rossde.com/editorials/Dershowitz_marriage.html
|title = Government Should Quit the Marriage Business
|publisher = Los Angeles Times
|author = Dershowitz, Alan M.
|date= 3 Dec 2003
|accessdate = 2007-03-08
}}</ref> Marriage proponents find such a suggestion impractical. "Why do we suddenly have to throw out the entire system, invent some whole new thing, just because gay people want to get married?," asks ] of ]. "I don’t actually see Alan Dershowitz doing anything about this, other than writing an article, because he probably rightly understands it would be an immense project to go around the country and convince 200 million plus people to trade in their marriage for something new and explain why we are doing this when we actually have a legal system that already clearly distinguishes between civil and religious marriage."<ref>, David Shankbone, September 30, 2007</ref> Conservative critics like '']'s'' ] contend that the conflation of marriage with contractual agreements is itself a threat to marriage that "has undermined more heterosexual marriages than anything, with the possible exception of adultery."<ref>{{cite news
|url = http://www.nationalreview.com/comment/morse200405200926.asp
|title = ''Not'' a Social Contract
|publisher = National Review
|author = Morse, Jennifer Roback
|date= 20 May 2004
|accessdate = 2007-03-08
}}</ref>
However, in the case of one state in which same-sex marriages are recognized, Massachusetts, there is a long history of marriage being regarded as purely a civil institution, as illustrated in Governor ]'s history '']'':
<blockquote>
May 12 was the first marriage in this place which, according to the laudable custom of the Low Countries, in which they had lived, was thought most requisite to be performed by the magistrate, as being a civil thing, upon which many questions about inheritances do depend, with other things most proper to their cognizance and most consonant to the Scriptures (Ruth iv) and nowhere found in the Gospel to be laid on the ministers as a part of their office.
<ref>{{cite web
|url = http://www.fordham.edu/halsall/mod/1650bradford.html#New%20governor,%20first%20marriage
|title = Of Plymouth Plantation
|author = Bradford, William
|accessdate = 2007-08-29
}}</ref>
</blockquote>

== History ==
{{main|History of same-sex unions}}

== Current status ==
{{main|Status of same-sex marriage}}
[[Image:Same_sex_marriage_map_Europe_detailed.svg|thumb|left|Status of same-sex unions in Europe. {{legend|#980098|Same sex marriage recognised}}
{{legend|#0000FF|Civil unions recognised}}
{{legend|#009800|Unregistered cohabitation recognised}}
{{legend|#FFFF00|Issue under political consideration}}
{{legend|#FF9800|Unrecognised or unknown}}
{{legend|#FF0000|Same sex marriage banned}}]]

Marriage, as defined by the civil law, is presently available to same-sex couples in five countries. ] was the first country to allow same-sex marriage in 2001. Same-sex marriages are also recognized in ], ], ] and ].

At present, Massachusetts is the only state in the United States that allows same-sex couples to obtain marriage licenses.<ref>See summary of current developments at stateline.org. Use search term "marriage."</ref> This is the result of a 4 to 3 decision by the Massachusetts Supreme Judicial Court in ''Goodridge v. Department of Health'', which found that the state constitution required same-sex couples be granted marriage licenses under the "common benefits" clause.<ref>The official version of this decision can be found at http://www.masslaw.com/signup/opinion.cfm?page=ma/opin/sup/1017603.htm.</ref> While there were initial efforts to limit the decision legislatively<ref>''In re Opinions of the Justices to the Senate'', 802 N.E.2d 565, 572 (Mass. 2004) (advisory opinion rejecting civil unions) which is available at http://news.findlaw.com/hdocs/docs/conlaw/maglmarriage20304.html.</ref> or pass a state constitutional amendment reversing the decision,<ref>See Journal of the Massachusetts' Senate in Joint Session on Sept. 14, 2005 available at http://www.mass.gov/legis/journal/jsj091405.htm.</ref> ultimately marriage licenses began to be issued to same-sex couples. These couples enjoy all the benefits of opposite couples under state law, including the right to inherit, sue for loss of consortium, and coverage under state insurance laws. These benefits do not, however, extend to matters controlled by federal law, such as the ability to file a joint income tax return or assert a claim as a dependent spouse under Social Security. This is due to the ], passed by Congress in 1996, which Act states, "`In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word `marriage' means only a legal union between one man and one woman as husband and wife, and the word `spouse' refers only to a person of the opposite sex who is a husband or a wife.'<ref></ref>

While Massachusetts is the only state to issue marriage licenses to same-sex couples, several other states - including ], ], ], ], ], ], ], ] state, ] - and ] offer civil unions or domestic partnerships, which grant same-sex couples some or all of the same rights under state law granted to married couples. ], ], and ] recognize foreign marriage licenses, but do not grant them or any other form of same-sex relationship recognition. Twenty six states have amended their constitution to define marriage as the union of a man and a woman, with the language varying as to what legal rights, other than marriage, can be extended to same-sex couples.<ref>See webpage of the National Conference of State Legislatures at http://www.ncsl.org/programs/cyf/samesex.htm.</ref>

A New York appellate court ruled on ], ] that same-sex marriages performed outside state must be recognized as valid within the state. Same-sex couples are not permitted to wed in New York.<ref>See the New York Times at http://www.nytimes.com/2008/02/02/nyregion/02samesex.html</ref>
[[Image:Samesex marriage in USA.svg|left|thumb|'''Laws Regarding Same-Sex Partnerships in the United States'''
{{legend|#a9218e|Same sex marriages}}
{{legend|#00a651|Same sex unions}}
{{legend|#00b7f1|Foreign marriage licenses recognized}}
{{legend|#605ca8|Domestic Partnerships}}
{{legend|#ffff00|Statute bans Same-Sex Marriage}}
{{legend|#ff7f00|Constitution bans Same-Sex Marriage}}
{{legend|#ed1e24|Constitution bans Same-Sex Marriage and Union}}]]

At the federal level, Australia bans recognition of ], but the current federal ] government favours synchronised state and territory ] legislation (as in ]) although the ] favours the introduction of ]. By stark contrast, ] was preserved when a proposed repeal bill failed at its first reading in ], while ]'s Parliament similarly heavily defeated a private members bill that would have prohibited ] in ]. However, as far as current ] goes, New Zealand's Marriage Act 1955 still recognises only heterosexual couples as marriageable (although it has also included ] who have undergone ] as the 'opposite sex' for these purposes, since ] and ] decisions in ].

]'s High Court of Justice ruled to recognize same-sex marriages performed in other countries, although it is still illegal to perform them within the country. A bill was raised in ] to rescind the Israeli High Court's ruling, but the Knesset has not advanced the bill since December ].

] and ] are the only countries where the legal status of same-sex marriage is exactly the same as that of opposite-sex marriage, though ] is due to fully harmonize its marriage laws. Other nations all have requirements or restrictions that apply to same-sex marriage that do not apply to opposite-sex marriage.


=== Civil unions ===
{{main|Civil union}}

The first same-sex union in modern history with government recognition was obtained in ] in ].

]s, ], ], unregistered partnership/unregistered co-habitation or ]s offer varying amounts of the benefits of marriage and are available in: ], ] (except ] law), ], ], ], ], ], ], ], ] (unregistered co-habitation since 1996; registered partnership from 2009), ], ], ], ], ], ], ], ], ], ], the ] and ]. They are also available in '''some parts''' of ], ] (]), ], the ] states of ], ], ], ], ], ], ], ], ] state, and the ] (Washington, D.C.).
] within the first month that marriage was opened to ] in the ] (2001)]]

In the United Kingdom, ] have identical legal status to a marriage, and partners gain all the same benefits and associated legal rights; ranging from tax exemptions and joint property rights, to ] status and shared parenting responsibilities. Partnership ceremonies are performed by a marriage registrar in exactly the same manner as a ] ].
] are identical to British civil partnerships in their association with equivalent spousal rights and responsibilities to fully-fledged heterosexual marriage.

] provides under all states, territories and two council areas either a registry system provided in; - ], ], ] and ]; or Unregistered partnership provided in; ], ], ], ], ], ] and ]. However, Commonwealth law provisions and statutes prohibit the recognition of civil unions, civil partnerships and same-gender marriages; fifty-eight (58) Legislative Acts of the Commonwealth use the phrase 'member of the opposite sex'. However, Commonwealth law still recognises same-sex partner under "interdependancy relationship" for anti-terrorism legislation, migration of same-sex partner, private superannuation schemes and Federal military and ADF services only.<ref>{{cite web |url = http://www.humanrights.gov.au/media_releases/2007/43_07.html |title = Simple changes could end discrimination for thousands of Australian couples |date= 21 Jun 2007 |accessdate = }}</ref> In 2007 Grace Abrams and Fiona Power became Australia's first legally recognised same sex married couple after Grace Abrams had gender modification surgery and was later officially granted a passport with female status.
] in ], celebrating the legalization of ]]]

A ] in ] is nearly equal to marriage, including legal adoption rights in Sweden and, since June, in Iceland as well. These partnership laws are short laws that state that wherever the word "marriage" appears in the country's law will now also be construed to mean "registered partnership" and wherever the word "spouse" appears will now also be construed to mean "registered partner" - thereby transferring the body of marriage laws onto same-sex couples in registered partnerships. In these countries, registered partnerships are generally called marriage in daily speech.

In some countries with legal recognition the actual benefits are minimal. Many people consider civil unions, even those which grant equal rights, inadequate, as they create a separate status, and think they should be replaced by gender-neutral marriage.<ref>{{cite web
|url = http://www.huffingtonpost.com/john-bohrer/nj-civil-unions-nothing-_b_36351.html
|title = NJ Civil Unions: Nothing to Celebrate
|publisher = The Huffington Post
|author = John R. Bohrer
|date= 14 Dec 2006
|accessdate =
}}</ref>

=== International organizations ===
The terms of employment of the staff of ] (not businesses) are not, in most cases, governed by the laws of the country in which their offices are located. Agreements with the host country safeguard these organizations' impartiality with regard to the host and member countries. ] and ] practices, ] and environment, ] time, ] plans, ] and ], ], expatriation benefits and general conditions of employment are managed according to rules and regulations proper to each organization. The independence of these organizations gives them the freedom to implement human resource policies which are even contrary to the laws of their host and member countries. A person who is otherwise eligible for employment in Belgium may not become an employee of ] unless he or she is a citizen of a NATO member state.<ref>{{cite web
|url = http://www.nato.int/structur/recruit/info.htm
|title = NATO Recruitment service
|publisher = NATO
|date= 07 Dec 2006
|accessdate = 2007-03-08
}}</ref> The ] has recently banned the recruitment of cigarette smokers.<ref>{{cite web
|url = http://www.who.int/employment/recruitment/en/
|title = What are we looking for?
|publisher = World Health Organization
|accessdate = 2007-03-08
}}</ref> Agencies of the ] coordinate some human resource policies amongst themselves.

Despite their relative independence, few organizations currently recognise same-sex partnerships without condition. The ] (OECD) and the agencies of the ] voluntarily ] between opposite-sex marriages and same-sex marriages, as well as discriminating between employees on the basis of nationality. These organizations recognize same-sex marriages only if the country of citizenship of the employees in question recognizes the marriage. In some cases, these organizations do offer a limited selection of the benefits normally provided to opposite-sex married couples to de facto partners or ]s of their staff, but even individuals who have entered into an opposite-sex ] in their home country are not guaranteed full recognition of this union in all organizations. However, the ] does recognize domestic partners.<ref>{{cite web
|url = http://web.worldbank.org/WBSITE/EXTERNAL/EXTHRJOBS/0,,contentMDK:20522360~menuPK:1353209~pagePK:64262408~piPK:64262191~theSitePK:1058433,00.html
|title = Jobs - Compensation & Benefits
|publisher = The World Bank Group
|accessdate = 2007-03-08
}}</ref>

=== Anticipated demand in the United Kingdom ===
In the ], the government is reported to have anticipated demand for same-sex civil partnerships as being around 11,000 to 22,000 by ]. However, this appears to have been an underestimate; as of December 2006 some 15,657 such partnerships had been registered in around 9 months.<ref>{{cite news
|url = http://www.guardian.co.uk/frontpage/story/0,,1964183,00.html
|title = More than 15,500 civil partnerships prove popularity of legislation
|publisher = the Guardian
|author = Lucy Ward
|date= 5 Dec 2006
|accessdate = 2007-03-08
}}</ref>

=== Transgender and Intersex persons ===
{{wikinews|Interview with gay marriage movement founder Evan Wolfson}}
When sex is defined legally, it may be defined by any one of several criteria: the ], the type of ]s, or the type of external sexual features. By all of these definitions both ]s and ]ed individuals are legally categorized into confusing gray areas, and could be prohibited from marrying partners of the "opposite" sex or permitted to marry partners of the "same" sex due to arbitrary legal distinctions. This could result in long-term marriages, as well as recent same-sex marriages, being overturned.

An example of the problem with chromosomal definition would be a woman with ] (CAIS), who would have a 46,XY karyotype, which is typically male. Although she may have been legally registered as female on her birth certificate, been raised as a female her entire life, have engaged in typical heterosexual female relationships, and may even have married before the status of her condition was known, using the chromosomal definition of sex could prevent or annul the marriage of a woman with this condition to a man, and similarly allow her to legally marry another woman. These same issues were faced by the ] to determine who qualified as a female for the women's competitions.<ref>{{cite paper
|url = http://www.uksport.gov.uk/assets/File/Generic_Template_Documents/Standards_in_Sport/transsexuals.pdf
|title = Transsexual people and sport
|publisher = UK Department for Culture, Media and Sport
|format = .PDF
|accessdate = 2007-03-08
}}</ref>

The problems of defining gender by the existence/non-existence of gonads or certain sexual features is complicated by the existence of ] to alter these features. Although it has not been exhaustively stated by a court, it is possible that a court could find that if a person has their gonads removed (not limited to a sex-change but also for medical disorder, such as ] or removing ]), they would enter a sexual limbo status and fail to meet either set of criteria, thus excluding them from any allowance to marriage. This situation could easily occur through exclusionary findings by separate courts in a state that already does not recognize transsexual marriages to people of the same sex as their birth-sex, as in the case of Linda Kantaras vs. Michael Kantaras. Basing the distinction on genital appearance is complicated by available ] converting typically male genitalia to typically female genitalia, which has advanced to the point where, even were a genital inspection necessary, many transgendered women would pass this inspection without question.

Requiring a surgical reassignment for definition of gender for the purpose of declaring a marriage valid comes with further problems. The ] is expensive and does not provide results as satisfactory as its counterpart; therefore many female-to-male transsexuals choose not to undergo this procedure. In a situation where genitalia legally defines gender and same-sex marriage is not permitted, the transsexual man would therefore only be allowed to legally marry another man if he wished to marry.

These complications are probably more likely than one would think at first glance; according to the highest estimates (Fausto-Sterling et al., 2000) perhaps 1 percent of live ]s exhibit some degree of sexual ambiguity, and between 0.1% and 0.2% of live births are ambiguous enough to become the subject of specialist medical attention, including sometimes involuntary ] to address their sexual ambiguity.<ref>{{cite web
|url = http://www.isna.org/faq/frequency
|title = How common is intersex?
|publisher = Intersex Society of North America
|accessdate = 2007-03-08
}}</ref>

In any legal jurisdiction where marriages are defined without distinction of a requirement of a male and female, these complications do not occur, and some legal jurisdictions may recognize a legal and official change of gender, which would allow one to satisfy the requirement of either "male" or "female" according to their gender-identity within their legal definition of marriage. Although some legal jurisdictions continue to only recognize the "immutable traits determined at birth." (Linda Kantaras vs. Michael Kantaras)

{{main|Legal aspects of transsexualism}}

In the United Kingdom, recent legislation allows transsexual persons to be officially recognized in their new gender, but this has the effect of annulling any previous marriage. However the couple will now be able to register a civil partnership, to come into force immediately upon the dissolution of their marriage

In countries with legal systems based on the ]s, being legally recognized as one's transitioned gender may require conditions of infertility, where if a transsexual were ever found to have had a child, it would result in a reversal of a legal sex change and spontaneous annulment of the marriage if that country does not recognize same-sex marriages.

In the United States, transsexual and intersexual marriages typically run into the complications detailed above. As definitions and enforcement of marriage is defined by the state, these complications will vary from state to state. In Massachusetts no problem should arise in seeking to get a marriage, or enforcing that marriage, however marriage in states that have more prohibitive definitions, ''any'' marriage with a transsexual could face challenge in a court based on any number of criteria.

(For discussions on the status of marriages involving transgendered persons see Julie A. Greenberg, Defining Male and Female: Intersexuality and the Collision Between Law and Biology, 41 Ariz. L. Rev. 265 (Summer 1999); and Michael L. Rosin, Intersexuality and Universal Marriage, 14 L. & Sex. 51 (2005) as well as the references they contain.)

== Controversy ==
[[Image:World homosexuality laws.svg|thumb|Map showing the status of homosexuality laws of the world.

{{legend|#c0c0c0|No information}}
'''Homosexuality legal'''
{{legend|#57781f|Same sex marriages}}
{{legend|#99b453|Same sex unions}}
{{legend|#bed688|No same sex unions}}
{{legend|#7fbcff|International marriage licenses recognized}}
'''Homosexuality illegal'''
{{legend|#f9dc36|Minimal penalty}}
{{legend|#ec8028|Large penalty}}
{{legend|#e73e21|Life in prison}}
{{legend|#8c210f|Death penalty}}
{{legend|#a9a9a9|No info on penalty}}]]


The controversy over recognition of same-sex unions as marriages is a small, albeit very important, part of a larger controversy concerning the role of government in recognizing and regulating intimate relationships. While there are few instances of societies recognizing same-sex unions as marriage, the historical and anthropological record reveals a remarkable variety of treatment of same-sex unions ranging from sympathetic toleration to indifference to prohibition. The 2004 Statement by the ] relies upon this variety in reaching its conclusion that same-sex unions can "contribute to stable and humane societies":<ref></ref>
<blockquote>The results of more than a century of ] research on ]s, ] relationships, and ], across cultures and through time, provide no support whatsoever for the view that either ] or viable ]s depend upon marriage as an exclusively heterosexual institution. Rather, anthropological research supports the conclusion that a vast array of family types, including families built upon same-sex partnerships, can contribute to stable and humane societies.</blockquote>

Some disagree with the idea of government recognition of any marriages, arguing that the personal relationships of citizens are not a proper issue of governmental concern. This view is often expressed by those who see the only legal issues related to marriage involving the nature and extent of parties’ consent to the relationship. Proponents of this view argue that the parties should define almost all aspects of the relationship, in much the same way that parties to other types of contracts are generally free to define the terms of their agreement. Prenuptial and postnuptial agreements arise among those holding this view.<ref>See discussion of prenutial and postmarital agreements at Findlaw </ref>

Others, including many ] advocates, assert that legal recognition of marriage is based upon the government's interest in encouraging stable, committed relationships. Stable relationships reduce the need for society (sometimes through government) to provide support for its members. Each spouse safeguards the other's well being by, at times, acting as a nurse, banker, policeman, etc. Examples include demanding the keys to the car when one or the other has had too much to drink, or staying home to care for the other after surgery,<ref>This is recognized by the federal Family Medical Leave Act allowing employees to take time off to care for a spouse with a serious medical condition.</ref> or paying debts owed by a husband or wife.<ref>See Findlaw, Debts: Husbands and Wives </ref> Advocates for recognition of same-sex unions argue that there is no difference in the ability of same-sex and opposite-sex couples to make commitments and care for each other, and therefore the law of marriage should apply to both.<ref>Professor Dale Carpenter is a prominent spokesman for this view. For a better understanding of this view, see Professor Carpenter's writings at http://www.indegayforum.org/staff/show/91.html.</ref>

A third approach to marriage is based on the belief that the government's involvement in marriage arises from the consequences of sexual acts between men and women – namely the creation of children. Based on research showing that, on average, children do best when raised by their biological parents in a low-conflict marriage,<ref>See e.g., Kristin Anderson Moore, et al., ''Marriage from a Child’s Perspective: How Does Family Structure Affect Children and What Can We Do About It?,''Child Trends Research Brief (June 2002)</ref> proponents argue that legal marriage is society’s way of encouraging monogamy and commitment by those who may create children through their sexual coupling. <ref>Maggie Gallagher is a prominent spokeswoman for this view. For an in-depth understanding of this view, see her blog at http://www.marriagedebate.com/.</ref> These advocates acknowledge that not every opposite couple is capable of creating a child through sexual acts, but they argue that all laws are over inclusive in some aspect and to create exact congruence marriage and child-bearing capacity would require unacceptable inquiries by government at the time of issuing marriage licences.<ref>This inquiries would necessarily include questions about the couple's present fertility and their intentions regarding childbearing.</ref> No such intrusion is necessary to conclude that no sexual act between same-sex partners will result in childbearing, and therefore it is proper to exclude these couples from the legal definition of marriage.

Opponents of marriage within the ] also object to the same-sex marriage movement, even though their concerns pertain to the institution of marriage, rather than to the gender of its participants. They argue that seeking marriage as a means to social benefits and recognition reinforces the exclusion of other persons, notably the single and those in families composed of three or more intimate partners, from these benefits.<ref>''The Trouble with Normal: Sex, Politics, and the Ethics of Queer Life'', Michael Warner, Harvard University Press</ref> From this perspective same-sex marriage is a ] movement within LGBT politics.

=== Religious arguments ===
] claims the 4th century Christian martyrs ] were united in the rite of ], or brother-making, which he calls an early form of religious same-sex marriage]]

Some opponents object to same-sex marriage on purely ]. Opponents often claim that extending marriage to same-sex couples will undercut the conventional purpose of marriage as interpreted by cultural, religious, and traditional understanding.<ref>See e.g., Southern Baptist Convention, ''On Same-Sex Marriage'' (adopted 2003) http://www.sbc.net/resolutions/amResolution.asp?ID=1128 (visited January 20, 2008).</ref> Furthermore, opponents argue that same-sex marriage cannot fulfill common procreational roles, and/or sanctions a partnership that is centered around sexual acts that their respective religion prohibits. For example, ], in ''Marriage Under Fire'' and elsewhere, states that legalization or even tolerance of same-sex marriage would redefine the family, damage traditional family unions, and lead to an increase in the number of homosexual couples.
The Roman Catholic Church also opposes recognition of same-sex unions, arguing that acts of sexual intimacy are only proper between a man and a woman, and that the proper setting for those acts is only within marriage. Government inclusion of any other unions within the definition of "marriage" would reflect a belief in the moral equivalence of acts between a husband and wife and acts between two men or two women; this belief many find erroneous, in turn, would form the basis for public education requirements<ref>David Parker, the father of a kindergarten child in a Massachusetts public school, was arrested for trespassing on school property after a meeting during which he objected to teaching kindergarten children about same-sex marriage. A copy of the complaint in federal district court related to this arrest can be found at http://www.lexingtoncares.org/lawsuit2006-04-27/lawsuit.pdf.</ref> and legal enforcement of that view through laws restricting the speech and action of those who continue to believe that sexual acts between members of the same sex are not morally acceptable.<ref>See Maggie Gallagher, ''Banned in Boston''11 Weekly Standard 33 (2006) at </ref> Inclusion of same-sex unions within the definition of marriage would also evidence rejection of the idea that, in general, it is best that children be raised by their biological mother and father, and that it is the community's interest in insuring the well-being of children that forms the basis for the government's licensure and involvement in marriage.<ref>The Congregation for the Doctrine of the Faith, ''Considerations Regarding Proposals to Give Legal Recognition to Unions between Homosexual Persons'' (2003) (visited January 20, 2008) (statement by Vatican department charged with promoting and safeguarding the doctrine on the faith and morals throughout the Catholic world).</ref>

] and some moderate Christians further claim that homosexuality goes against biblical teaching, and extend this to same-sex marriage. As an example, there is the Bible verse Genesis 19:5, which many Biblical scholars believe indicates that homosexual behavior led to the destruction of the ancient cities of ].<ref>{{cite book
| chapter = Genesis 19
| chapterurl = http://www.biblegateway.com/passage/?search=Genesis%2019%20;&version=31;
| title = New International Version
| publisher = BibleGateway.com
| accessdate = 2007-03-08
}}</ref> Other passages are Leviticus 18:22, Leviticus 20:13, and in the New Testament of the Bible, I Corinthians 6:8-10 and Romans 1:24-27.<ref>{{cite book
| chapter = Romans 1:24-27
| chapterurl = http://www.biblegateway.com/passage/?search=Romans%201:24-27%20&version=31
| title = New International Version
| publisher = BibleGateway.com
| accessdate = 2007-03-08
}}</ref> While these passages do not define the institution of marriage, Genesis 2:22-24 reads as follows: "Then the Lord God made a woman from the rib he had taken out of the man, and he brought her to the man. The man said, 'This is now bone of my bones and flesh of my flesh; she shall be called 'woman,' for she was taken out of man.' For this reason a man will leave his father and mother and be united to his wife, and they will become one flesh."<ref></ref> This passage is quoted by Jesus in the New Testament Gospel of Matthew.<ref></ref> However, other moderate and ] claim that Biblical passages concerning homosexual behavior are taken out of full textual, historical and cultural contexts, and are not applicable to homosexual relationships as we know them today. They view the passages about Sodom and Gomorrah as referring to systematic ] and inhospitality. They view the passages in Leviticus as part of the ] and strictly reserved to the Israelites of that time. Some of this Holiness Code is not practiced by contemporary Christians (e.g., prohibitions on wearing mixed fabrics, a proscription of the consumption of pork, the sacrifice of animals as atonement for sins), while other parts such as the prohibitions on incestuous relations still are. For some modern Christians, the passage in Romans is seen as relating more to specific instances of Greco-Roman temple sex acts and idolatrous worship and it is not intended to address contemporary homosexuality.<ref>{{cite paper
|url = http://members.cox.net/paulmcc/mcc/samegen.html
|title = Same Gender Sexual Behavior and the Scriptures
|publisher = Metropolitan Community Church of Topeka, authors and
|author = Loppnow, Rev. Jonathan; Evans, Rev. Paul C.
|format = .HTML; .SIT
|date= 7 Jan 1998
|accessdate = 2007-03-08
}}
</ref> Other modern Christians hold that Romans 1 proscribes all homosexual behavior, regardless of its relational context.<ref></ref>

Judaism, like Christianity, reflects differing views between conservative and liberal adherents. Orthodox Judaism maintains the traditional Jewish bans on both sexual acts and marriage amongst members of the same sex. The Orthodox Union in the United States supports a Constitutional amendment banning same-sex marriage.<ref> Rabbi Tzvi Hersh Weinreb, Orthodox Response to Same-Sex Marriage, NY Jewish Week (Mar. 26, 2004) http://www.ou.org/public_affairs/article/ou_resp_same_sex_marriage/ (visited January 20, 2008) (Rabbi Weinreb is the Vice President of the Union of Orthodox Jewish Congregations of America, one of the oldest and largest organizations of Orthodox Jews in the United States); Rabbinical Council of America, Joining with Three Other Orthodox Organizations, RCA Opposes Redefinition of Marriage in New York State (June 21, 2007) http://www.rabbis.org/news/index.cfm?type=policies (visited January 20, 2008).</ref> Conservative Jews reject recognition of same-sex unions as "marriage," but permit celebration of commitment ceremonies, in part as an expression their belief that scripture requires monogamy of all sexually active couples. <ref>Committee on Jewish Law and Standards, Homosexuality, Human Dignity, & Halakhah: A Combined Responsum for the Committee on Jewish Law and Standards (approved by a majority of the Committee on Dec. 6, 2006) at http://www.rabbinicalassembly.org/docs/Dorff_Nevins_Reisner_Final.pdf (visited January 20, 2008) (the Committee on Jewish Law and Standards of the Rabbinical Assembly is a committee of the international body of Conservative Rabbis).</ref> Members of Reform Judaism support the inclusion of same-sex unions within the definition of marriage. <ref>Union of American Hebrew Congregations, Civil Marriage for Gay and Lesbian Jewish Couples (adopted by the General Assembly 1997) http://urj.org/Articles/index.cfm?id=7214&pge_prg_id=29601&pge_id=4590 (visited January 20, 2008).</ref>

There are some people who, despite having a moral or religious stance that same-sex marriage is wrong, still feel that it is not their place to take their religious sentiments into the secular realm, and enforce their beliefs on others who may disagree. So, while these religious people do not approve of homosexual couples and continue to refuse to recognize their marriages from a religious aspect, they nevertheless recognize and tolerate their secular marriage.

Some modern religions and denominations perform same-sex weddings. At the 1996 ] ], delegates voted overwhelmingly that because of "the inherent worth and dignity of every person," same-sex couples should have the same freedom to marry that other couples have.<ref>{{cite web
|url = http://www.uua.org/news/freedomtomarry/index.html
|title = Freedom to Marry, for All People
|publisher = Unitarian Universalist Association
|date= 2006
|accessdate = 2007-03-08
}}</ref><ref>{{cite web
|url = http://www.femdomale.com/samesex/marriage/index.html
|title = Same-Sex "Marriage": Should America Allow "Gay Rights" Activists to Cross The Last Cultural Frontier?
|publisher = Christian Leadership Ministries
|author = Anton N. Marco
|date= 1999
|accessdate = 2007-03-08
}}</ref>

=== Social arguments ===
Those who advocate that marriage should be defined exclusively as the union of one man and one woman argue that heterosexual unions provide the procreative foundation of the family unit that is the chief social building block of civilization. Social conservatives and others may see marriage not as a legal construct of the state, but as a naturally occurring "pre-political institution" that the state must recognize as it recognizes other natural institutions such as jobs and families. "Government does not create marriage any more than government creates jobs."<ref>{{cite web
|url = http://www.policyreview.org/apr05/morse.html
|title = Marriage and the Limits of Contract
|publisher = the Hoover Institution
|author = Jennifer Morse
|date= May 2005
|accessdate = 2007-03-08
}}</ref> They argue that the definition proposed by same-sex marriage advocates changes the social importance of marriage from its natural function of reproduction into a mere legality or freedom to have sex. These sides of the argument may refer to themselves as "defenders" of traditional marriage. As any customary relationship may be considered "marriage," some argue that this then leads to undue legislative burden and an affront to the social value and responsibility of parenting one's own children.

The dissent by Justice Martha Sosman in the decision of the Massachusetts high court that legalized same-sex marriage in that state makes a societal argument without specifying the harm that would occur from this change.<ref>{{cite web
|url = http://911fantasy.blogspot.com/1995/12/transcript-of-martha-sossmans-dissent.html
|title = Transcript of Martha Sossman's Dissent
|publisher = blogspot.com
|date= 23 Dec 1995
|accessdate = 2007-03-08
}}</ref> Asserting the '']'' importance of marriage as an institution, she questions whether the burden of proof that this would be harmless has been met. Her analysis can be seen as an example of ], which states that if an action or policy might cause severe or irreversible harm to the public, in the absence of a scientific consensus that harm would not ensue, the burden of proof falls on those who would advocate taking the action.
{{rquote|right|'''Marriage is a vocabulary, it’s a vehicle, an engine for a larger discussion that moves people’s understanding of who gay people are, why sex discrimination is wrong, why exclusion is wrong in America, that brings up discussion of the separation of church and state, that brings up discussion of whether there should be limitations or roles based on sex, or whether men and women should be treated equally.'''|]|<ref>, David Shankbone, '']'', September 30, 2007.</ref>}}
A common objection to same-sex marriage is that the purpose of marriage is a result of naturally occurring sexual attraction that leads to procreation, and that the same-sex partnership is inherently sterile. Some who hold this view see marriage as the social codification of an evolved long-term mating strategy, with economic and legal benefits to facilitate family growth and stability.
Others argue that because the law does not prohibit marriage between sterile heterosexual couples or to women past ], the procreation argument cannot reasonably be used against same-sex marriage, particularly since technological advances allow gay couples to have their own related biological children.<ref>{{cite web
|url = http://www.religioustolerance.org/hom_marint2.htm
|title = Is Same-Sex Marriage (SSM) a Bad Idea?
|publisher = Ontario Consultants on Religious Tolerance
|author = B.A. Robinson
|date= 10 Apr 2004
|accessdate = 2007-03-08
}}</ref>

Another view is that all marriages should thus be viewed legally as "]s." These civil unions would then only receive the ] which do not require expenditures from the government (e.g., tax breaks), and any monetary benefits would only be awarded based on the number of children living in a household.

Dissidents to the same-sex marriage movement within the gay community argue that the pursuit of social recognition and legal benefits (e.g., health care insurance) by means of marriage reinforces marriage as an institution of exclusion, because it extends rights and benefits to people on the basis of their relationship status.<ref>''The Trouble with Normal: Sex, Politics, and the Ethics of Queer Life,'' Michael Warner, Harvard University Press</ref> Some of these rights (e.g., health care insurance), they argue, should be made available to all people, including those who are single and those whose families are composed of three or more intimate partners. Some also argue that seeking marriage as a way of legitimating gay parenting reinforces cultural biases and discrimination against single parents. Lastly, some note that the same-sex marriage movement reinforces a cultural bias against being single in adulthood, treating it as abnormal, undesirable, or immature.

Some same-sex marriage proponents, such as ], argue that same-sex marriage is moral enough to support the family-centered role that marriage plays in society despite the absence of biological children. Supporters also argue that the institution of marriage would be strengthened by making it available to more people, and furthermore that same-sex marriage would encourage gays and lesbians to settle down with one partner and raise families. Others argue that marriage no longer retains a procreative function of the government since many governments offer child tax credits and assistance regardless of marital status.

Also, many people argue in favor of same-sex marriage because they say that sexual orientation is uncontrollable. They cite many scientific studies which claim <ref></ref> that no one can choose or change their sexual orientation, and that forbidding marriage between two people of the same sex is like forbidding marriage between two people of the same eye color, skin color, or nose length. Some believe that sexual orientation is genetically determined, just like these traits, and thus should not be cited as a basis for discrimination. In contrast, opponents of same-sex marriage (including some ] organizations) argue that homosexuality is not genetic or unchangeable.<ref></ref><ref></ref> Same-sex marriage opponents support this position with research as well as anecdotal evidence regarding efforts to overcome unwanted same-sex attractions.<ref></ref><ref></ref><ref></ref><ref></ref> Some opponents of same-sex marriage reason that if homosexuality is not genetic or unchangeable, then it is not unjust for government to define marriage as the union of one woman and one man.<ref>http://www.apacny.net/The%20Christian%20Case%20Against%20Same-Sex%20Marriage.pdf</ref>

=== Arguments about tradition ===
Proponents of same-sex marriage point out that "traditional" concepts of marriage in actuality have already undergone ].

Polygamy has been prohibited, married women are no longer considered the property of their husbands, ] is legal, ] within wedlock is allowed, and ] forbidding ] have been eliminated in most modern societies.

The fact that changes in the customs and protocols of marriage often occur gives rise to the argument that marriage is dynamic, and same-sex marriage is only the latest evolution of the institution.

=== Arguments concerning children ===
{{main|LGBT parenting}}

In opposing same-sex marriage in various state courts, a common key state's argument against allowing same-sex marriage has been the use of legal marriage to foster the state's interest in human reproduction. In '']'' in which several same-sex couples argued that the state of Washington's version of the Defense of Marriage Act (DOMA) was unconstitutional, the ] ruled 5 to 4 that the law was constitutional. Writing in the majority opinion, Justice Barbara Madsen wrote in 2006:
<blockquote>''The Legislature was entitled to believe that limiting marriage to opposite-sex couples furthers procreation, essential to the survival of the human race and furthers the well-being of children by encouraging families where children are brought up in homes headed by children's biological parents.''</blockquote><p>

(See also ], ])

In responding to this argument in 2007, the Washington Defense of Marriage Alliance, a supporter of same-sex marriage, began a petition drive to place a ballot measure on the November 2007 ballot that would require opposite-sex couples who marry to have children within three years or have their marriages become legally unrecognized. Couples seeking a marriage license would also have to show they can produce children. The group admits this ballot initiative aims at calling attention to the Washington Supreme Court's decision in ''Anderson'' and the logical extension of this reasoning to childless and/or sterile heterosexual couples.<p>

In terms of numbers, the ] reports more than 600,000 same-sex couples (''unmarried domestic partners'' on the Census form) in the United States. The Census Bureau estimates that this number would be over 770,000 in 2005.<ref>{{cite paper
|url = http://www.law.ucla.edu/williamsinstitute/publications/SameSexCouplesandGLBpopACS.pdf
|title = Same-sex Couples and the Gay, Lesbian, Bisexual Population: New Estimates from the American Community Survey
|author = Gary J. Gates, PhD
|publisher = The Williams Institute of UCLA Law School
|format = .PDF
|date=October 2006
|accessdate = 2007-03-08
}}</ref> While a post-Census study by UCLA economist Dr. M.V. Lee Badgett found that there was a significant undercount of same-sex couples in 2000, the Census reports that among the couples answering they are a same-sex couple: one-third of lesbian couples and one-fifth of gay male couples have children under 18 living in the home.<ref>{{cite paper
| url = http://www.iglss.org/media/files/c2k_leftout.pdf
| author = M. V. Lee Badgett, Ph.D; Marc A. Rogers, Ph.D.
| date= 2003
| format = .PDF
| title = Left Out of the Count: Missing Same-Sex Couples in Census 2000
| publisher = Institute for Gay and Lesbian Strategic Studies
|accessdate = 2007-03-08
}}</ref>

Some object on the grounds that same-sex couples should not be allowed to adopt or raise children or to have access to reproductive technologies, and that same-sex marriage would make such arrangements easier. A number of health and child welfare organizations, however, disagree. They include the Child Welfare League of America, North American Council on Adoptable Children, ], ], ], and the ].<ref name="aclu1">{{cite web
|url = http://www.aclu.org/LesbianGayRights/LesbianGayRights.cfm?ID=17245&c=104
|title = BAD LINK <!-- Too High A Price: The Case Against Restricting Gay Parenting -->
|publisher = American Civil Liberties Union
|author =
|date =
|accessdate = 2007-03-08
}}</ref> On July 28, 2004, the American Psychological Association's Council of Representatives adopted a resolution supporting legalization of same-sex civil marriages and opposes discrimination against lesbian and gay parents.<ref>{{cite press release
|url = http://www.apa.org/releases/gaymarriage.html
|title = APS Supports Legalization of Same-sex Civil Marriages...
|publisher = American Psychological Association
|date= 28 July 2004
|accessdate = 2007-03-08
}}</ref>

=== Arguments concerning divorce rates ===
] 2006.]]
{{limitedgeographicscope}}
{{Refimprove|date=July 2007}}
On an international scale, the most comprehensive study to date on the effect of same-sex marriage / partnership on heterosexual marriage and divorce rates was conducted looking at over 15 years of data from the Scandinavian countries. The study (later part of a book), by researcher ], found that, 15 years after Denmark had granted same-sex couples the rights of marriage, rates of heterosexual marriage in those countries had gone up, and rates of heterosexual divorce had gone down - contradicting the concept that same-sex marriage would have a negative effect on traditional marriage.<ref>], William Eskridge and Hans Ytterberg ''Nordic Bliss? Scandinavian Registered Partnerships and the Same-Sex Marriage Debate'', Journals of Legal Scholarship:Issues in Legal Scholarship i.5, The Berkeley Electronic Press, January 2004 </ref>

All U.S. states submit monthly summaries of vital statistics on births, deaths, marriages, and divorces to the U.S. Center For Disease Control's National Center For Health Statistics (NCHS) who then prepares monthly and yearly reports. The following statistics are based on that NCHS material. Over three years have passed now since same-sex marriage was legalized in Massachusetts and data from all of 2004 and 2005 are now available.

The current divorce trends in Massachusetts counter claims of same-sex marriage having a negative impact on traditional marriage. In fact, for several years now the Commonwealth has had the lowest divorce rate of any state in the union. In 2004 the Massachusetts divorce rate, at 2.2 per 1,000 residents per year, was considerably lower than the U.S. national average rate for that year, 3.8 per 1,000 and close to the national average of 2.0 back in 1940. In the first two years of same-sex marriage in the Bay State, the rate of divorce showed a steady decline making it likely that Massachusetts will continue to have the lowest divorce rate in the nation.

States which have taken aggressive action against same-sex marriage have not done nearly as well during the two year period of legal same-sex marriage in Massachusetts. The preliminary data from 2004 and 2005—from the 17 U.S. states which have provided data on divorce for 2004 and 2005 and whose voters also passed state constitutional amendments prohibiting same-sex marriage—presents a striking picture: the group of U.S. states arguably most hostile to divorce, those which have passed both state laws and also state constitutional amendments prohibiting same-sex marriage, lag dramatically in terms of divorce rate improvement when compared to same-sex marriage-friendly states.

Among those U.S. states that are most opposed to same-sex marriage which have also provided divorce data for the time period — Arkansas, Kansas, Kentucky, Michigan, Mississippi, Missouri, Nebraska, Nevada, North Dakota, Ohio, Oklahoma, Oregon, Utah, Texas — the average divorce rate ( unadjusted for population changes ) for 2004 and 2005 increased 1.75%. This group contains 4 of the 5 states with the highest divorce rate increases in the U.S. during 2004 and the first 11 months of 2005.

=== Arguments concerning equality ===
].]]
In the ], there are at least 1,138 federal laws "in which marital status is a factor."<ref>{{cite paper
|url = http://www.gao.gov/new.items/d04353r.pdf
|title = Defense of Marriage Act: Update to Prior Report
|publisher = United States General Accounting Office
|date= 2004
|accessdate = 2007-03-08
}}</ref> (See ] for a partial list) A denial of rights or benefits without substantive ], assert the proponents of same-sex marriage, directly contradicts the ] which provides for ] of all citizens. For instance, a heterosexual U.S. citizen who marries a foreign partner immediately qualifies to bring that person to the United States, while long-term gay and lesbian binational partners who have spent decades together are denied the same rights, forcing foreign gay partners to seek expensive temporary employer or school-sponsored visas or face separation. See and report on this and other forms of discrimination against same-sex couples.

In a 2003 case titled '']'', the Supreme Court held that the ] to private consensual sexual conduct was protected under the ]. The court noted "moral disapproval does not constitute a legitimate governmental interest under the Equal Protection Clause." Both supporters and detractors of same-sex marriage have noted that this ruling paved the way for subsequent decisions invalidating state laws prohibiting same-sex marriage. U.S. Supreme Court Justice ] noted as such in his dissenting opinion to ''Lawrence''.

Some opponents of extending marriage to same-sex couples claim that equality can be achieved with ]s or other forms of legal recognition that don't go as far as to use the word "marriage" that's used for opposite-sex couples. An opposing argument, used by the ] in '']'', is the following: ''"the dissimilitude between the terms "civil marriage" and "civil union" is not innocuous; it is a considered choice of language that reflects a demonstrable assigning of same-sex, largely homosexual, couples to second-class status"'' and also that ''"The history of our nation has demonstrated that separate is seldom, if ever, equal."'' For instance, in matters under federal purview such as immigration, a bi-national same-sex couple committed under civil union do not have the same rights as their married heterosexual counterparts in sponsoring their ] partner for ]. There is however, a bill pending in the ] since 2000, called ] pertaining to this discrimination.

=== Parallels to interracial marriage ===
Opponents of same-sex marriage argue that men and women are fundamentally different from one another, whereas interracial couples still fit within the "one man and one woman" definition of marriage.<ref name="mmarriage">{{cite video
|url = http://www.secureminnesotaformarriage.org/ss/live/index.php?action=viewprod&sid=64&pid=149&pageid=258
| title = The Battle for Marriage in Minnesota
| publisher = Minnesota for Marriage
| medium = Video
| format = MPEG-4; WM9
|accessdate = 2007-03-08
}}</ref> Louisiana State University law professor Katherine Spaht has characterized the debate as follows: “the fundamental understanding of marriage has always been, by definition, a man and a woman. Never did Webster’s dictionary define the term marriage in terms of the races. There is an inherent difference between interracial marriage and same-sex “marriage” because homosexuals cannot procreate." ] Glenn Stanton told the Baptist Press that “knocking down bans on interracial marriage did not redefine marriage, it affirmed marriage by saying that any man has a right to marry any woman under the law. But what same-sex ‘marriage’ proponents seek to do is to radically redefine the very definition of marriage to say it’s not about gender. Marriage is about bringing the genders together, not keeping the races apart.”<ref>{{cite news
|url = http://www.bpnews.net/bpnews.asp?ID=17988
|title = Bans on interracial marriage, same-sex ‘marriage’ -- parallels?
|publisher = Baptist Press
|author = Michael Foust
|date= 2 Apr 2004
|accessdate = 2007-03-08
}}</ref>

Proponents of same-sex marriage make a comparison between ] and segregation of homosexual and heterosexual marriage classifications in civil law.<ref>{{cite news
|url = http://hnn.us/articles/4708.html
|title = Why the Ugly Rhetoric Against Gay Marriage Is Familiar to this Historian of Miscegenation
|publisher = History News Network of George Mason University
|author = Peggy Pascoe
|date= 19 Apr 2004
|accessdate = 2007-03-08
}} </ref> They argue that dividing the concept of same-sex marriage and different-sex marriage is tantamount to "]" policies (like that overturned in the U.S. Supreme Court case ]), or ] that were also overturned by the Supreme Court in 1967 in '']''.

In 1972, after the Minnesota Supreme Court's ruling in '']'' specifically distinguished ''Loving'' as not being applicable to the same-sex marriage debate, the United States Supreme Court dismissed the appeal "for want of a substantial federal question." This type of dismissal usually constitutes a decision ] of the case; as such, Baker appeared—at least for a time &mdash; to be binding precedent on all lower federal courts.

It is unclear whether ''Baker v. Nelson'' remains as a potential bar to the federal courts from hearing cases regarding same-sex marriage. The federal ] of 1996 (DOMA) simultaneously created (1) a federal definition of marriage, {{UnitedStatesCode|1|7}}, and (2) a new rule under the ] (passed pursuant to Congress's authority under the federal Constitution's ]), {{UnitedStatesCode|28|1738C}}, purporting to limit mandatory interstate recognition of same-sex marriages. By "federalizing" marriage with statutes that are susceptible of judicial scrutiny, Congress effectively — albeit perhaps unintentionally — expanded the subject-matter jurisdiction of the federal courts, seemingly superseding Baker's dismissal "for want of a substantial federal question."

This loophole in jurisdiction recently came to light when a same-sex couple was granted standing to sue in federal district court on a claim that DOMA is unconstitutional under the federal Constitution. See ''Smelt v. County of Orange'', 374 F. Supp. 2d 861 (], 2005), aff'd in part and rev'd in part, 447 F.3d 673 (9th Cir. 2006), cert. denied, 127 S. Ct. 396 (2006). In ''Smelt'', the district court applied Pullman abstention to one part of the claim, but it proceeded to the merits on another part, finding DOMA to be constitutional. The ] affirmed the district court on the abstention question, but it reversed the district court on the merits, holding that the couple lacked standing to sue. The Ninth Circuit raised the standing question '']'', but only because the couple had not demonstrated the requisite injury. The Ninth Circuit left open the possibility that another couple with a demonstrable injury could bring the same suit in the future. Importantly, ''Baker v. Nelson'' is mentioned nowhere in the Ninth Circuit's opinion; its continuing relevance is therefore highly suspect.

Beginning in 2003, members of Congress have annually introduced a "court-stripping" provision that would prevent all federal courts from hearing claims challenging the constitutionality of DOMA. See, e.g., Marriage Protection Act of 2003, H.R. 3313 (108th Cong., 1st Sess.). This proposed court-stripping provision has itself been challenged as being of dubious constitutionality. See Jason J. Salvo, Comment, Naked Came I: Jurisdiction-Stripping and the Constitutionality of House Bill 3313, 29 Seattle U. L. Rev. 963 (Summer 2006); Maxim O. Mayer-Cesiano, On Jurisdiction-Stripping: The Proper Scope of Inferior Federal Courts' Independence from Congress, 8 U. Pa. J. Const. L. 559 (May 2006); J. Spencer Jenkins, Note, 'Til Congress Do Us Part: The Marriage Protection Act, Federal Court-Stripping, and Same-Sex Marriage, 40 New Eng. L. Rev. 619 (Winter 2006); Sarah Kroll-Rosenbaum, Note, The Marriage Protection Act: A Lesson in Congressional Over-Reaching, 50 N.Y. L. Sch. L. Rev. 809 (2005-2006); Michael J. Gerhardt, The Constitutional Limits to Court-Stripping, 9 Lewis & Clark L. Rev. 347 (Summer 2005); Theodore J. Weiman, Comment, Jurisdiction Stripping, Constitutional Supremacy, and the Implications of Ex Parte Young, 153 U. Pa. L. Rev. 1677 (2005).

=== Economic arguments ===
Economic arguments on the impact of same-sex marriage focus on the effects on same-sex couples, businesses, employers, and governments. Economist and associate professor at the University of Massachusetts (Amherst), Dr. M. V. Lee Badgett has studied the impact of same-sex legal marriage on all four of these groups.

'''Impact on Same-sex Couples:''' Badgett finds that exclusion from legal marriage has an economic impact on same-sex couples. According to a 1997 General Accounting Office study requested by Rep. ] (R), at least 1,049 U.S. Federal laws and regulations include reference to marital status. A later 2004 study by the Congressional Budget Office finds 1,138 statutory provisions "in which marital status is a factor in determining or receiving 'benefits, rights, and privileges.'" <ref name=cbo1>{{cite paper
|url = http://www.cbo.gov/showdoc.cfm?index=5559&sequence=0
|title = The Potential Budgetary Impact of Recognizing Same-Sex Marriages
|publisher = Congressional Budget Office
|format = .HTML; .PDF
|date= 21 Jun 2004
|accessdate = 2007-03-08
}}</ref> Many of these laws govern property rights, benefits, and taxation. Same-sex couples are ineligible for spousal and survivor Social Security benefits. Badgett's research finds the resulting difference in Social Security income for same-sex couples compared to opposite-sex married couples is US$5,588 per year. The federal ban on same-sex marriage and benefits through the 1996 Defense of Marriage Act (DOMA) extends to federal government employee benefits. For example, after the 2006 death of former Massachusetts Congressman ] (D), the first openly gay member of Congress, his legal spouse Dean Hara was denied the estimated $114,337 annual pension to which Hara would have been eligible if their Massachusetts marriage was recognized on the federal level. According to Badgett's work, same-sex couples face other financial challenges against which legal marriage at least partially shields opposite-sex couples:

* potential loss of couple's home from medical expenses of one partner caring for another gravely ill one

* costs of supporting two households, travel, or emigration out of the U.S. for an American citizen unable to legally marry a non-US citizen

* higher cost of purchasing private insurance for partner and children if company is not one of 18% that offer domestic partner benefits

* higher taxes: unlike a company's contribution to an employee's spouse's health insurance, domestic partner benefits are taxed as additional compensation

* legal costs associated with obtaining domestic partner documents to gain some of the power of attorney, health care decision-making, and inheritance rights granted through legal marriage

* higher health costs associated with lack of insurance and preventative care: 20% of same-sex couples have a member who is uninsured compared to 10% of married opposite-sex couples

* current tax law allows a spouse to inherit an unlimited amount from the deceased without incurring an estate tax but an unmarried partner would have to pay the estate tax on the inheritance from her/his partner

* same-sex couples are not eligible to file jointly or separately as a married couple and thus cannot take the advantages of lower tax rates when the individual income of the partners differs significantly

While state laws grant full marriage rights (Massachusetts) or some or all of the benefits under another name (Vermont, New Jersey, California, etc.), these state laws do not extend the benefits of marriage on the Federal level, and most states do not currently recognize same-sex marriages or civil unions from other states.

One often overlooked aspect of same-sex marriage are the potential ''negative'' effects on same-sex couples. While the legal benefits of marriage are numerous, same-sex couples would face the same financial constraints of legal marriage as opposite-sex married couples. Such potential effects include the ] in taxation. Similarly, while social service providers usually do not count one partner's assets toward the income means test for welfare and disability assistance for the other partner, a legally married couple's joint assets are normally used in calculating whether a married individual qualifies for assistance.

'''Impact on Businesses:''' Dr. M. V. Lee Badgett's research estimates the potential impact on businesses of same-sex marriage legalization to be $2 billion to the wedding industry alone. Badgett derives this estimate by calculating the amount spent on weddings if a) half of same-sex couples marry and b) each couple spends 1/4 the average amount spent on an opposite-sex wedding (US$27,600 average wedding cost / 4 = US$6,900 per same-sex couple).

'''Impact on Employers''': In terms of employers where marriage opponents fear higher benefit costs, Badgett and Mercer Human Resources Consulting separately find less than 1% of employees with a same-sex partner sign up for domestic partner benefits when a company offers them. Badgett finds less than 0.3% of Massachusetts firms' employees signed up for spousal benefits when that state legalized same-sex marriage.

'''Impact on Governments''': A 2004 Congressional Budget Office (CBO) report examines the impact of allowing the 1.2 million Americans in same-sex domestic partnerships in the 2000 Census to marry and finds the impact to be comparatively small in terms of the huge Federal budget. While some spending on Federal programs would increase, these outlays would be offset by more savings in other spending areas. The report predicts that if same-sex marriage was legalized in all 50 states and on the Federal level, the U.S. government would bring in a net surplus of US$1 billion per year over the next 10 years.<ref name=cbo1/> In terms of specific programs' spending the report states:

<blockquote>''Recognizing same-sex marriages would increase outlays for Social Security and for the Federal Employees Health Benefits (FEHB) program, CBO estimates, but would reduce spending for Supplemental Security Income (SSI), Medicaid, and Medicare. Effects on other programs would be negligible. Altogether, CBO concludes, recognizing same-sex marriages would affect outlays by less than $50 million a year in either direction through 2009 and reduce them by about $100 million to $200 million annually from 2010 through 2014.''<ref name=cbo1/></blockquote>

The CBO study counters the economic argument by some U.S. critics of same-sex marriage against governmental recognition on the grounds that the public should not have to shoulder the burden of increased taxes and insurance premiums to cover the associated costs.<ref>{{cite news
|url = http://www.opinionjournal.com/editorial/feature.html?id=110004735
|title = For Better or for Worse?
|publisher = WSJ OpinionJournal
|author = Mary Ann Glendon
|date= 25 Feb 2004
|accessdate = 2007-03-08
}}</ref>

=== Other arguments ===
'']'' commentator Stanley Kurtz argues allowing same-sex marriage blurs other common law precedents and will lead to the legalization of a variety of non-traditional relationships (see ]).<ref>{{cite news
|url = http://www.weeklystandard.com/Content/Public/Articles/000/000/002/938xpsxy.asp
|title = Beyond Gay Marriage
|publisher = Weekly Standard
|author = Stanley Kurtz
|date= 4 Aug 2003
|accessdate = 2007-03-08
}}</ref>

* ]. The gist of this argument is that the traditional definition of marriage involves two components, a commitment to one person of the opposite sex, and that changing one of these components (restricting it to members of opposite sexes) would necessarily lead to a change in the other component (restricting it to only one person).
* ]. Defined as the practice whereby a person has more than one long term ] in their life, with the knowledge and acceptance of others they are involved with, in whatever form is chosen by those involved. This can include long term stable ]s, or stable couples who have external partners as well as their 'primary' partner. A polyamorous civil union in the Netherlands in 2005 sparked many comparisons with gay marriage on American conservative blogs. Most practitioners of polyamory in the United States are skeptical of all forms of marriage, however.<ref>{{cite news
|url = http://www.weeklystandard.com/Content/Public/Articles/000/000/006/494pqobc.asp
|title = Here Come the Brides
|publisher = The Weekly Standard
|author = Stanley Kurtz
|date= 26 Dec 2005
|accessdate = 2007-03-08
}}</ref>
* ]uous marriages. The natural aversion most people feel toward incestuous relationships does not vary depending on sexual orientation, yet this is a logical consequence of redefining marriage to accommodate a group.
* ] for tax or other reasons. This however, seems to be more of an argument against government-sanctioned marriage in general, not just same-sex marriage.
* ]. Non-human animals, however, do not have the legal standing to consent into a marriage contract.

==See also==
{{commonscat|Same-sex marriage}}
{{Portal|LGBT|Portal LGBT.svg}}
* '']''
* ]
* ]
* ]
* ]
* ]
* ]
* ]
* ]
* ]
* ]
* ]
* ]
* ]
* ]
* ]
* ] documentary about same-sex marriage equality in the United States
==Footnotes==
{{Reflist|2}}
==References==
{{refbegin|1}}
* , Breaking Legal News, April 3, 2007
{{refend}}

==External links==
*
*, Evan Wolfson, '']'', February 12, 2008.

== Bibliography ==
<div class="references-small">
* {{cite book | last = Boswell | first = John | authorlink = John Boswell (historian)| year = 1995 | title = The Marriage of Likeness: Same-sex Unions in Pre-modern Europe | publisher = Simon Harper and Collins | location = New York | id = ISBN 0-00-255508-5}}
* {{cite book | last = Wolfson | first = Evan | authorlink = Evan Wolfson | year = 2004 | title = Why Marriage Matters: America, Equality, and Gay People's Right to Marry | publisher = Simon & Schuster | location = New York | id = ISBN 0-7432-6459-2}}
* {{cite book | last = Boswell | first = John | authorlink = John Boswell | year = 1994 | title = Same-sex Unions in Premodern Europe | publisher = Villard Books | location = New York | id = ISBN 0-679-43228-0}}
* {{cite book | last = Farrow | first = Douglas| last = Cere | first = Daniel | authorlink = Daniel Cere | year = 2004 | title = Divorcing Marriage: Unveiling the Dangers in Canada's New Social Experiment | publisher = McGill-Queen's University Press| location = Montreal | id = ISBN 0-7735-2895-4}}
* {{cite book | last = Chauncey | first = George | authorlink = George Chauncey | year = 2004 | title = Why Marriage?: The History Shaping Today's Debate over Gay Equality | publisher = Basic Books | location = New York | id = ISBN 0-465-00957-3}}
* {{cite book | last = Dobson | first = James C. | authorlink = James Dobson | year = 2004 | title = Marriage Under Fire|Marriage under Fire: Why We Must Win This War | publisher = Multnomah | location = Sisters, Or. | id = ISBN 1-59052-431-4}}
* {{cite book | last = Larocque | first = Sylvain | authorlink = Sylvain Larocque | year = 2006 | title = ] | publisher = James Lorimer & Company | location = Toronto | id = ISBN 1-55028-927-6}}
* {{cite book | last = Spedale | first = Darren | authorlink = Darren Spedale | year = 2006 | title = Gay Marriage: For Better or For Worse? What We've Learned From the Evidence | publisher = Oxford University Press | location = New York | id = ISBN 0-19-518751-2}}
* {{cite book | editor = Robert P. George, ] (Eds.) | year = 2006 | title = The Meaning of Marriage: Family, State, Market, And Morals | publisher = Spence Publishing Company | location = Dallas | id = ISBN 1-890626-64-3}}
*Caramagno, Thomas C. "Irreconcilable Differences? Intellectual Stalemate in the Gay Rights Debate." Westport, CT: Praeger, 2002. ISBN 0-275-97721-8
</div>

{{Same-sex marriage}}
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Revision as of 18:50, 7 May 2008

poop.