Rob P.

Professor Walkup

Ethics K111

29 October 2006

Same-Sex Marriage: Injustice and Inequality in “Free” America

            The ongoing debate over the issue of same-sex marriage has created much controversy and turmoil within American society, most of which is contributed to society merely being forced to rethink its traditional perception of the institution of marriage. The issue originally came to the forefront in 1996 with the signing of the Defense of Marriage Act but perhaps gained most of its notoriety in 2003 when Massachusetts became the first state to legally allow same-sex marriages. What follows is a discussion of same-sex marriage which begins with the summation of a particular recent event that demonstrates the turbulence of the issue, accompanied by assorted background information on the issue and statistics regarding homosexuality in America. The discussion will then attempt to evaluate same-sex marriage based upon the principles of various ethical theories. Finally, the discussion will conclude with the author’s position on the issue. It should be noted that there will be no mention of religion, for, in the author’s opinion, the topic of religion has always been and will always be a source of much controversy in and of itself. Therefore, religion has been stripped from the discussion in order to properly examine the issue of same-sex marriage from a somewhat neutral perspective.

Former Massachusetts democratic congressman Gerry Studds passed away October 14, 2006, at the age of 69. The bulk of Mr. Studds’ political career was spent as the congressman for the 10^th United States House District of Massachusetts, to which he was first elected in 1973 and reelected in the subsequent 11 elections, until his retirement in 1997. Having had retired as a federal employee, Mr. Studds was entitled to receive certain benefits, the most prevalent being an estimated $114,337 annual pension of which his spouse would be entitled to one-half upon his death (LeBlanc). However, “. . . the federal government refused to pay death benefits to his spouse” (LeBlanc), which it would have the right to do if the federal employee had been “. . . convicted of espionage or treason” (qtd. in LeBlanc). Mr. Studds, however, was not guilty of either. Instead Mr. Studds’ spousal death benefits have been refused because he was homosexual.

Mr. Studds is most notably known for three reasons; being the first openly homosexual member to serve in congress, being the first openly homosexual to be reelected to congress, and being the first member of congress to be legally married to a partner of the same sex. As a result of the latter, Mr. Studds’ pension and spousal death benefits, which would normally be awarded to the spouse of a deceased federal employee not convicted of crimes against the United States, have been withheld from his spouse. This injustice can be directly attributed to the previously mentioned Defense of Marriage Act of 1996. What ethical message has the federal government transmitted by grouping homosexuals who are legally united together with criminals guilty of treason and espionage? In order to answer this question properly, the Defense of Marriage Act (DOMA) must be introduced.

The issue of same-sex marriage has been an ongoing legal battle for homosexuals to gain the right to marry their same-sex partners since, for all intents and purposes, the signing of DOMA in 1996 by President Bill Clinton. DOMA, at its core, denied federal recognition of same-sex marriages, as well as excluded legally united same-sex couples from receiving any of the federal benefits provided to married heterosexual couples. However, per the Constitution of the United State of America, whether or not an individual state chooses to recognize same-sex marriage is left up to the lawmakers of that state. In acknowledgement of this fact DOMA also declared that each individual state did not have to recognize a same-sex marriage which might have been legal in another state within its own borders. (i.e., State A permits same-sex marriage, legally married same-sex couple from State A travels to State B, State B does not have to honor State A’s decision to recognize same-sex marriage, married same-sex couple has no rights associated with their legal same-sex marriage from State A within the borders of State B.)

            Currently there are only a handful of states that give the approval for same-sex couples to legally unite. Connecticut, Vermont, and most recently New Jersey have all followed Massachusetts’s lead and are now allowing such unions to take place. However, Massachusetts is the only one of these states that permits the union to be called a “marriage”; the other states use the term “civil union” in light of the fact that some heterosexuals claim that marriage is a sanctified institution that can only be entered into by a man and a woman. So, in order to appease those who share this reasoning Vermont and Connecticut instead chose the term civil union and amended their constitutions to specifically define marriage as the legal union of a man and a woman. Though the choice of terminology deprives same-sex couples of their right to refer to themselves as being married, all of the same rights which are afforded to heterosexual married couples are also extended to partners of civil unions within those states.

Heterosexual married couples enjoy over 1400 state and federal rights in areas such as income tax, health insurance, social security and veteran death benefits (GLAD). Same-sex marriages and civil unions, since they are not federally recognized, do not receive any federal rights, but only state rights, which is approximately one fifth of that amount or roughly 300 rights (GLAD). Additionally, because of DOMA, there is no guarantee that the rights granted by the state in which a same-sex couple were legally united will be provided if that same-sex couple should decide to relocate to a state that does not endorse same-sex unions. Though homosexuals comprise only a small percentage of American society (roughly 2.3% of the male population and 1.3% of the female population between the ages of 18 and 44 are homosexual (Mosher, Chandra, Jones)), does that justify discriminating against them when it comes to receiving the same rights afforded to heterosexual married couples? Since this is not a discussion on the legality of the issue of same-sex marriage, let us then try to answer that question from an ethical perspective.

A general definition of ethics tells us that it is the “study of the various sets of values that people do have” (Walkup, “Introductory”). Ethicists throughout time have made their ethical theories and beliefs known both on a small scale (i.e., to people within earshot, within their hometown, social circle, etc.) and on a worldwide scale. Additionally, some of these theories have endured the test of time while others have simply come to be forgotten. For the purposes of this discussion only those ethical theories which have had a lasting impact since their conception will be used to evaluate same-sex marriage, more specifically, only those theories which have managed to repeatedly play a role in determining the values that people have will be included.

Immanuel Kant’s ethical philosophy requires that all people act towards one another in a manner which always exudes respect, reason, and rationality. These requisite traits can be interpreted to mean that same-sex couples deserve the same respect that heterosexual couples receive, not only in being permitted to unite, but also in being able to call their union a marriage. Kant’s opinions on reason and rationality are based on the point of view of a typical “rational male,” therefore, without knowing if the rational male in question is homosexual or heterosexual would make it difficult to determine their stance on the issue. Unfortunately the conflict of interest concerning this aspect of Kantianism does not allow for that determination to be made; therefore, in order to present a more conclusive analysis of Kantianism, the introduction of Kant’s widely recognized “categorical imperative” is needed.

Interpretation of Kant’s categorical imperative, which states that you should always “act only according to that maxim by which you can at the same time will that it should become a universal law” (qtd. in Walkup, “Kant’s”), would lead one to believe that Kantianism may find the issue of same-sex marriage to be ethical. For example, Bob, a rational man, chooses to marry Mary for reasons that he deems to be love, adoration, and respect. Bob, acting in accordance with the categorical imperative, should expect that others must marry for the same reasons, for it is his maxim that these reasons be universally accepted in order to marry in the first place. Therefore, when Joe and Ed, who love, adore and respect one another, marry, then Bob, by adhering to the categorical imperative, must accept Joe and Ed’s marriage as it is based on the very maxim that Bob acted in accordance with when he married Mary. Although there is more than one interpretation of the categorical imperative, this particular interpretation demonstrates that same-sex marriage, from a Kantian perspective, can be ethical.

Another ethical theory that has been widely accepted is that of utilitarianism. Subscribers to this theory believe in producing “the greatest good for the greatest number” (Walkup, “Utilitarianism”). Pleasure and happiness as well as the amount and type of each are weighed when considering which is best for a utilitarian society. If society is defined to be America as a whole, or the entire population, the statistics provided earlier clearly demonstrate that the majority of Americans are heterosexual, and, therefore, rendering the decision to recognize same-sex marriage federally, or nationally, would be unacceptable per utilitarianism in this instance. The same can be said of an individual state if society is to be defined as only that one state, or of one county, or of one city, etc. However, that does not expressly declare that same-sex marriage is unethical per utilitarianism.

 If a utilitarian society is defined on a much smaller scale than that of the entire population of America, say for example one small town with a predominately homosexual population, it follows that utilitarianism must be refocused to assess the amount of happiness and pleasure that can be maximized in that one small town. When one then applies the ethical theory of utilitarianism to this town alone, it should be obvious to see that “the greatest good for the greatest number” will be produced within this town if same-sex marriage is permitted, thereby making same-sex marriage ethical within this town per utilitarianism.

One final theory that will be applied to the issue of same-sex marriage to determine whether or not it may be ethical is the theory of egoism. Since this ethical theory can be subdivided into more than one type of egoism, for reasons of brevity only one of those subdivisions, that of psychological egoism, will be discussed herein. Psychological egoism is epitomized with the possession of a perspective “. . . that all people are motivated ONLY by what they believe to be good for themselves in some respect” (Walkup, “Psychological”). With that being said, no further explanation of psychological egoism is required to deduce that this ethical theory would most definitely condone same-sex marriage if that is in fact what a psychological egoist was motivated to obtain or believed to be good. The dilemma that arises, however, is determining how a psychological egoist opposed to same-sex marriage would respond to the notion of it being allowed.

Further analysis of a psychological egoist opposed to same-sex marriage would reveal that the notion of looking out for the well being of another should never even occur, and hence would be of no consequence to that egoist. Therefore, unless the psychological egoist opposed to  same-sex marriage stood to lose or miss out on something beneficial to them, there would be no conflict, and thereby no dilemma. After all, would there be really anything taken away from a married heterosexual psychological egoist if it were decided that a homosexual person should be granted the right to legally unite, and, additionally, be granted the right to call that legal union a marriage? The answer to that question, unfortunately, is merely one of the many sources of fuel that will feed the same-sex marriage debate for what is sure to be many years to come.

The preceding discussion has identified that there is genuine opposition within American society to recognize same-sex marriage. It has also been shown that the federal government, by signing DOMA into the law books, has taken a firm stand against same-sex marriage while at the same time has empowered each of the states to do the same. Perhaps DOMA will now be reconsidered due to the recent death of an openly homosexual member of its exclusive family which thereby required the federal government to enforce its unfair laws upon itself. Finally, evaluation of the issue based on the principles of Kantianism, utilitarianism and psychological egoism demonstrated that, ethically speaking, same-sex marriage can be acceptable. However, only time will determine whether or not same-sex marriage will come to be recognized federally or remain legal only within individual states.

Our nation’s Founding Fathers, realizing that they collectively possessed only a finite wisdom, worded the Constitution of the United States of America in such a way so as to emphasize that realization. Their goals were not to establish rigid laws of the land, they merely sought to provide the framework by which, in their opinions, a civil government should function. The Founders realized that a proper democratic society was going to be an ever-changing entity and, with that in mind, believed that it would be society, or the American people of that time in America’s evolution, who would dictate how and when those changes were to occur. There is no mention of, let alone a definition for, marriage anywhere within the Constitution. Therefore, DOMA is unconstitutional and should be repealed.

The federal government or any government for that matter should not have the power to place any restrictions or regulations on marriage, regardless of the sexes of the couple, if it is between consenting adults. It is my belief that same-sex marriage is not an ethical issue, for my ethical beliefs continue to change and develop as my life experiences accumulate. As a result, what is not socially, morally, or politically acceptable now has the potential to be acceptable in the future. I believe that the mere existence of a debate to determine whether or not people of the same sex should be allowed to marry overlooks the simple truth that we are still talking about people. There is no other country in the world that responds to what its people request of it in such a manner that America does, and although it might take longer than I have remaining, I take solace in knowing that if America wants same-sex marriage, America will have same-sex marriage. It is just a matter of time.

Works Cited

Defense of Marriage Act of 1996. Pub. L. 104-199. 21 Sep. 1996. Stat. 2419.

GLAD - Gay & Lesbian Advocates & Defenders. 17 Oct. 2006. 21 Oct. 2006.

< http://www.glad.org/>.

LeBlanc, Steve. “Gay former congressman’s spouse denied death benefits.” The Day [New

London, CT] 18 Oct. 2006: A4.

Mosher, W.D., Chandra, A., Jones, J. Sexual behavior and selected health measures: Men and

woman 15-44 years of age, United States, 2002. Advance data from vital and health

statistics; no. 362. Hyattsville, MD. National Center for Health Statistics. 2005.

United States Department of Health and Human Services. Centers for Disease Control and

            Prevention. National Center for Health Statistics. National Survey of Family Growth.

            Cycle 6: 2002. Dec. 2004.

Walkup, Louise N. “Introductory Comments.” Walkup’s Way. 29 Aug. 2006

            < http://walkupsway.com/chapter1mackinnon.htm>.

---. “Kant’s Moral: Theory Kingdom of Ends.” Walkup’s Way. 10 Oct. 2006

            < http://walkupsway.com/chapter5kant.htm>.

---. “Psychological & Ethical Egoism.” Walkup’s Way. 12 Sep. 2006

<http://walkupsway.com/chapter3egoism.htm>.

---. “Utilitarianism: Pain & pleasure are the measure.” Walkup’s Way. 3 Oct. 2006

            < http://walkupsway.com/chapter4utilitarianism.htm>.