Same Sex Marriage

Should same sex marriage be legally recognized?

Marriage is one of the most important socio-cultural institutions that for centuries have served the humanity for its inpidual and collective good. Although sexual co-habitation exists since primitive times but marriage was exclusively a heterosexual phenomenon. However, since the last half of the 20th century certain segments of the society defied the views of the conformist prepositions about the nature and purpose of marriage and challenged the tenet that marriage is and should be entirely heterosexual. This phenomenon developed in the last years of 1950s and surged in the early years of 1960s.

Marriage is not only a summation of two spouses but it is an all-encompassing phenomenon that includes social, cultural, moral and legal aspects. Marriage is developed as a social “patronaged” and culturally patterned institution that is much more than an intimate personal relationship as it has assimilated and incorporated itself with other social institutes, so marriage should not viewed as a relationship for personal intimation only as adherents of the same-sex marriage articulate and thus should not be legalized.

The adherents of the same-sex marriage disseminated the notions that marriage has nothing to do with heterosexuality and it is exclusively superfluous religious and legal fiction. They further propagated that different other dimension of the marriages i.e. same-sex marriage, should not be sacrificed at the altar of conventional religious morality. Generally, this change in the thought process of society compelled these segments of the society to indulge in same sex marriages. (Cantor, 2006)

The case for heterosexual marriage is based on the religious, social and historical fact. (Dent, 1999; Frank, 2006; Finnis, 1997; Reid, 2005;Vetri, 1998) Marriage is a social and religious bond between a man and woman. Biblical references can be provided that marriage as an institution is an association of one man and one woman. Furthermore Christianity is against gay and lesbian relationship and considers it immoral and unethical. In some cases has ordered to outcast the convicts of such crimes. In Christianity, marriage is considered a holy and sacred obligation since the Wedding at Cana (John 2:1-11).

So it was considered a vital activity since the time of Jesus as a legitimate and sacred sexual relationship between man and woman. Several legal court decisions and constitutional codes also include the same definition of marriage. Prof Eskridge (1993) provides a crux of the arguments of the opponents of the same-sex marriages by saying; “Marriage, they say, must involve a man and a women because (1) this is the definitional essence of the marriage (2) the Judeo-Christian tradition requires it and/or (3) the modern Western nation-state has structured society around the assumption that only different-sex marital unions are allowed.”

Historically, homosexual indulgence and practices were common in primitive societies but no verified or verifiable clue is available that same-sex “marriage” was recognized and sanctioned as marriage socially and stately in various parts of the world. Prof Eskridge is his well researched work “A history of Same-sex marriage” provides various historical facts about homosexuality but not about legal sanctity of same-sex marriage. For example, he provides example from certain archaeological remains like “tomb of two male courtiers of the fifth dynasty (circa 2600 B.C.) includes bas-beliefs of the “two men in intimate poses””.

He further quotes the views of social historian David Greenberg to affirm his point of view about same-sex relationship that “same-sex relationship was accepted by the state, because Pharaoh provided their tomb”. (21) So it is quite clear that historically, same-sex marriage were never sanctioned by any primitive law. This historical fact is important to assume that millennia of human experience never sanctioned homosexuality as a legal marriage and there were various reasons behind that i.e. collective good of human society, fear of extinction of human species etc.

He again cites David Greenberg to explaore the state recognition of same-sex relationship in the ancient civilization of Mesopotamia where “Mesopotamian monarch, notably King Zimri-Lim of Mari and King Hammurabi of Babylon, had male lovers akin to wives”. (22) He further suggests hat although earlier laws of Mesopotamia regulates the action of sexual indulgence and marriages but it has no connotations toward approval of same-sex relationship.

Reproduction is the essential human phenomenon that is primarily concerned with future and retainment of human specie. This primarily refers to the importance of hetero-sexual marriage as social fact. As the world is tending to move toward inpidualistic societies and its concerns, it is fundamentally imperative that wider social concerns must be taken into account. So the primary purpose of marriage is not an intimate relationship sanctioned by the society and state alike but it is the development and retainment of human generation. Hetero-sexual marriage is compatible with this social objective but same is not true with the same-sex marriage.

Scott Bidstrup, a distinguished supporter of same sex marriage, does not take into consideration this important objective of marriage and only relies on the personal intimacy theorem. He says that “Sex, in a committed gay relationship, is merely a means of expressing that love, just the same as it is for heterosexuals. Being gay is much more profound than simply a sexual relationship; being gay is part of that person’s core identity, and goes right the very center of his being.” (Gay Marriage: The Arguments and the Motives) But marriage is much more than an expression of love and affection for the partner or spouse.

Hetero-sexual marriage capacitates men to achieve their moral and personal discipline that is a pre-requisite to achieve success in life on one hand whereas it also enabled them to live a stable and balanced domestic life. On the other hand it facilitates the married women gain a protected and stable social status, acknowledgment of protection and economic provision of their children. Somerville refutes the same-sex marriage in a higher cultural level as she derives that Marriage is primarily a cultural phenomenon and one of its absolute function is to “transmit human life to the next generation and nurture and protect that life.” (3) She is of the opinion that same-sex marriage could not perform that function due to the fact that it involves a relationship rather than a social function.

A research study “Why Marriages Matters: Twenty-One Conclusion from the Social Sciences” by twelve scholars have tried to summarize the positive effects of marriage through analyzing research literature and found that “Marriage is an important social good associated with an impressively broad array of positive outcomes for children and adults alike… [W]hether American society succeeds or fails in building a healthy marriage culture is clearly a matter of legitimate public concern.” [Doherty, William J. et al., 2002] So marriage is a social phenomenon here that has social connotations and it is not a personal relationship between two inpiduals.

Adherents of the same-sex marriage further refer to the civil rights guaranteed by the constitution and put their case in the historical context that once interracial marriages were prohibited but Supreme Court established that these laws were unconstitutional and were against the letter and spirit of the constitution and fundamental rights. So they maintain that it is also erroneous and unconstitutional to bar same-sex marriages.

But this argument does not validate their yearning for legalization of same-sex marriage because being of a different race and color is a natural phenomenon whereas theirs is a behavioral predicament. It is not an innate feature. It is a habitual formation that seems to be instinctive. There are certain other segments of the society with deviant behaviors i.e. pedophiles, people with incestuous orientation, pornography addicts. It does not mean that civil rights grant them validation to exercise their will against the collective good of the society.

Don Browning sums the overall opposition to the case for same-sex marriage and says that providing social recognition and legal sanction to the gay marriage will epitomize the society’s stride toward dismantling the goods associated with marriage. The further says that same-sex marriage is not an extension of old institution of marriage to new segments of society but it alters the overall objective and purpose of marriage. He further extends that same-sex marriage “reduces marriage primarily to committed affectionate sexual relations. It goes further. It gives this new and a more narrow view of marriage all of the cultural, legal, and public support that accrued to the institution when it functioned to hold together this complex set of good.” (Browning 204)

All these arguments clearly manifest that same-sex marriage will not serve like the traditional institution of marriage based on hetero-sexual relationship, so it should not be endorsed as legally and constitutionally in order to save the society from socio-cultural catastrophe. From the primitive times the institution of marriages is regarded as the major source of family life. In almost every civilization it is known to serve and has served three essential social purposes.

First, it is regarded, as a hatchery where new pool of children are conceived and are brought up under the maternal and paternal supervision; the rearing of children in this way assures the provision of all their psychological, emotional, social and economic needs. So same-sex marriages should not be sanctioned and must be prohibited by law. If not an extensive power of judicial activism save the society, the proponents of same-sex marriage will exploit the situations and will put aside the majority opinion about aberrancy and deviancy of homosexuals.

References

• Bidstrup, S. Gay Marriage: The Arguments and the Motive. Retrieved on 7 Febrauary, 2007
• Browning, D. S. The Liberal Case against Same-sex Marriage. The New York Times. 09 Mar. 2004.
• Cantor, D. J. Same-Sex Marriage: The Legal and Psychological Evolution in America. Wesleyan University Press. 2006.
• Dent, G. W. “The Defense of Traditional Marriage,” The Journal of Law and Politics 15 (1999) :581-644.
• Eskridge, W. N. A history of Same-Sex Marriage. Symposium on Sexual Orientation and The Law. Virginia Law Review 79. 7 (1993): 1419-1513.
• Eskridge, W. N. The Case for Same-Sex Marriage: from Sexual Liberty to Civilized Commitment. New York: Free Press, 1996.
• Franke, K. M. “The Politics of Same-Sex Marriage Politics”. Columbia Journal of Gender & Law 15 (2006):236-248.
• Finnis, J. “The Good of Marriage and the Morality of Sexual Relations: Some Philosophical and Historical Observations”. American Journal of Jurisprudence 42 (1997):97-134.
• Patterson, C. J. “Same-Sex Marriage and the Interests of Children…,” Virginia Journal of Social Policy & Law 9(2001):345-351.
• Perkins, J. (ed.) Defense of Marriage: Does It Need Defending?. Nova Science. 2004.
• Reid, E. “Assessing and Responding to Same-Sex “Marriage” in Light of Natural Law”. Georgetown Journal of Law & Public Policy 3(2005):523-539.
• Somerville, A.M. The Case against Same-sex Marriage. A Brief Submitted to The Standing Committee on Justice and Human. McGill Centre for Medicine, Ethics and Law. 2003.
• Vetri, D. Almost Everything You Always Wanted to Know about Lesbians and Gay Men, Their Families, and the Law”. Southern University Law Review 26 (1998):1-91.