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Eskridge, Jr., William N., The Case for Same-Sex Marriage: From Sexual Liberty to Civilized Commitment (The Free Press, 1996)

From Subject
Stephen Hall <schall@ILSTU.EDU> The Case for Same-Sex Marriage (Stephen Hall)
joy wellman <jrwellm@HOTMAIL.COM> The Case For Same-Sex Marriage
"Charles W. Gossett" <cgossett@GSVMS2.CC.GASOU.EDU> Re: The Case For Same-Sex Marriage
joy wellman <jrwellm@HOTMAIL.COM> Re: The Case For Same-Sex Marriage
Shannon Becker <shannonbecker@HOTMAIL.COM> The Case for Same-Sex Marriage (Shannon Becker)
Justin Vaughn <justinsvaughn@HOTMAIL.COM> Re: The Case For Same-Sex Marriage
Melissa Ann Lynott <malynot@ILSTU.EDU> Re: Hall's review of The Case for Same-Sex Marriages
Margaret Carney <mmcarne@ILSTU.EDU> The Case for Same Sex Marriage: Margaret Carney

 


Date: Tue, 06 Mar 2001 13:38:24 -0600
From: Stephen Hall <schall@ILSTU.EDU>
Subject: The Case for Same-Sex Marriage (Stephen Hall)

Eskridge, Jr., William N., The Case for Same-Sex Marriage: From Sexual Liberty to Civilized Commitment (The Free Press, 1996)

Reviewed by: Stephen Hall 03/03/01    

The institution of marriage is a social and political creation that has come to dominate the structure of society. For some this institution symbolizes romantic love and helps to maintain society’s fundamental family values. Others are more cynical and believe that marriage is simply a meaningless piece of paper that also helps to perpetuate the oppression of women. For thousands of gay and lesbian couples, however, the institution of marriage symbolizes inequality. The right to marry the person you love is denied to you if that person is not of the opposite sex. William Eskridge begins his dissection of the arguments against same-sex marriage with the story of two women, Ninia Baehr and Genora Dancel, who are fighting for this equal right. Appealing to our core values, Eskridge proclaims, “Americans are romantics. We fantasize about finding our “one true love”…Ninia Baehr shares that American dream” (p.1).

The title of Eskridge’s book is highly appropriate for what it contains. This is the case for same-sex marriage - Eskridge shatters the opposing arguments, leaving only the remains of thinly disguised homophobia. As he develops his arguments, Eskridge makes it clear that denying people the right to marry whom they wish is discrimination that creates second-class citizens. During Dancel and Baehr’s case before the Hawaii Supreme Court, it was admitted that the policy is discrimination, yet it was defended as “permissible” (p.5). Eskridge strongly opposes this marked inequality and stresses that the state need only recognize a couple’s citizenship, not stamp a seal of approval on their lifestyle. The gay community, he elaborates, should also embrace the institution of marriage for its “potentially civilizing” effects (p.10). Gay men and lesbians are almost the only Americans denied this right, and this, Eskridge explains, is “intolerable” (p.12).

Eskridge counteracts the argument that marriage is traditionally between a man and woman and shows that same-sex relationships are not a modern novelty. Although Eskridge does a thorough job of this the argument is flawed, as what was considered appropriate in the past is not necessarily right here and now. However, Eskridge intriguingly depicts the evidence of same-sex marriages in classical Greece, imperial Rome, and medieval Europe. In particular, he notes that Egyptian pharaohs and Roman emperors were involved in homosexual relationships. Furthermore, Eskridge reveals how same-sex marriage existed in this country before the development of state-endorsed homophobia. Many Native American cultures recognized beardaches, people who deviated from their traditional gender roles, and endorsed same-sex marriages involving them. Eskridge explains that Western expansion and colonization led to the suppression of “indigenous attitudes and institutions concerning same-sex unions” (p.37). However, he also shows how marriage-like, same-sex relationships have continued in the West throughout modern history. Institutionalized fears over homosexuality are now offset by a growing, global campaign to have same-sex marriages equally recognized.

Next, Eskridge turns his attention to the debate within the lesbian and gay community. In focusing on the arguments within the community, Eskridge highlights the reasons why same-sex partners seek this equality. Ideas that homosexuals are naturally promiscuous and unable to maintain stable relationships are countered with the reasoning that marriage reinforces commitment, whereas antihomosexual attitudes undermine this. This argument is the basis for Eskridge’s theory that same-sex marriage will ‘civilize’ gay men and lesbians. Although I understand that Eskridge uses this term in order to add weight to his case, I believe that the concept of ‘civilizing’ depends on a group or individual being uncivilized beforehand. The use of this term is clearly directed at his intended audience who need convincing of the validity of same-sex relationships. However, by suggesting that marriage is the only way to ‘civilize’ those who are not necessarily ‘uncivilized’ in the first place is inappropriate and misleading. A more effective argument would be to staunchly maintain that those who oppose same-sex marriage are the ones who need civilizing.

Despite this, however, Eskridge clearly presents the tangible benefits of marriage for same-sex couples. Domestic partnership policies, such as one recently enacted by the Southern Methodist University in Texas, are depicted as unsatisfactory and unequal. In order to prove this, Eskridge lists the legal rights and benefits associated with marriage, and highlights how denying these to same-sex couples is blatant discrimination. Although Eskridge accepts that domestic partnerships laws can provide many of these benefits, he stresses how marriage automatically bestows these “off-the-rack rules for a variety of occurrences” (p.69). Furthermore, marriage requires an obligation of commitment that can help to hold a relationship together in times of conflict. Domestic partnership status often requires proof of a co-habiting, long-term relationship, and is often not recognized outside of that city or state. Most importantly, it creates a second-class status, reinforcing the fact that gay men and lesbians are treated as second-class citizens.

Eskridge touches on the reasons behind opposition to marriage within the gay and lesbian community. The ‘marriage-is-rotten’ argument suggests that “marriage involves hierarchies that have systematically subordinated certain people’s personal, economic, and social interests” (p.75). Eskridge counters this rejection of marriage by insisting that the civil rights and women’s rights movements worked to reform the legal institution rather than to abandon it. Unfortunately, I think Eskridge brushes over this argument too quickly. Eskridge, himself, admits that, “marriage is a socially and politically created institution” (p.92) that has enforced discrimination of women and imposed upon our civil liberties. What he does not consider, however, is how encouraging marriage creates many unhappy and unsatisfactory relationships that benefit neither the partners of their offspring. Abolishing legal marriage would perhaps make only those who are truly committed devote themselves to each other, and would also eradicate the legal discrimination against same-sex partners. These ideas do not sit well with Eskridge’s conformist, ‘civilizing’ ideas, but perhaps a more thorough critique of them would have been more engaging.

A much better job is done of the dismantling of mainstream objections to same-sex marriage. Eskridge begins by simply stating that, “People who dislike homosexuals or their imagined conduct are likely to oppose same-sex marriage” (p.87). He goes on to deconstruct the concept that marriage is traditionally and exclusively for a man and a woman. Most effectively, Eskridge shows how flimsy this concept is by highlighting evidence of marriages involving transsexuals, transvestites, and ‘hermaphrodites’, and concluding that “there is no way to draw the sex-and-gender line consistently enough to deny that states have repeatedly recognized same-sex marriages” (p.94). Next, Eskridge responds to the argument that there should be a fundamental link between marriage and procreation. This argument, he shows, is also flawed; as to adhere to these criteria would also deny marriage to those who are sterile or impotent. Suitably, Eskridge brushes over religious objections, as these should have little bearing on the laws of a country that prides itself on the separation of church and state. Finally, Eskridge insists that recognizing same-sex marriages is not an endorsement of homosexuality in the same way that allowing murderers, rapists, and child molesters to marry does not also put a stamp-of-approval on who they are and what they do. Eskridge skillfully and successfully picks up the opposing arguments and crushes them down to a meaningless dust.

Building on this, Eskridge presents the constitutional case that is based on the Fourteenth Amendment’s equal protection clause. To support his argument, Eskridge draws upon the Loving v. Virginia decision that recognized that the state should not deny citizens the right to marry based on racial classifications. Furthermore, in Zablocki v. Redhail, the Court found that the state should not impose restrictions on the “freedom of personal choice in matters of marriage and family life” (p.128). In light of this, Eskridge emphasizes how denying citizens the freedom to marry a person of the same sex is at odds with the protections of the Fourteenth Amendment. Eskridge finds that Hawaii’s justifications for denying this right rest on promoting procreation, tourism, and heterosexuality in general. Eskridge easily counters these arguments, and concludes that, “the state’s policy is compulsory heterosexuality” (p.143). Similarly, he dismisses the idea that recognizing same-sex marriage will lead us down a slippery slope to polygamy, incest, and child marriage, with an equally obtuse claim that restricting it could lead to other infringements on our liberties.

Comparing the Baehr case to Loving, Eskridge argues that prohibiting same-sex marriage is sex discrimination. Whereas in Loving it was recognized that denying marriage to an inter-racial couple was classification-based race discrimination, the courts have not acknowledged that denying same-sex marriage is discrimination based on a person’s sex. Furthermore, this discrimination is also simply based on sexual orientation, and this is widely regarded as a classification, like sex and race, that cannot be changed. Eskridge suggests that coupling the argument of sex and sexual orientation discrimination with the constitutional protections offers a case that is “irrefutable” (p.182). In our society, gay men and lesbians are tolerated as long as they do not flaunt their sexuality, or suppress it altogether. Eskridge proves that there are no neutral arguments against recognition of same-sex marriages, and I believe that gay men and lesbians should be given equal rights under law immediately in order for society’s opinions to change.

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Date: Thu, 08 Mar 2001 13:06:25 -0600
From: joy wellman <jrwellm@HOTMAIL.COM>
Subject: The Case For Same-Sex Marriage

Eskridge, William N. Jr., The Case For Same-Sex Marriage, The Free Press, 1996.

"No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws" (from the 14the Amendment).
In consideration of this right established by our founders, we assume that as citizens of this country, we are equally protected by our government and the supreme law of the land. In addition, those laws enacted should not deny any person of the privileges granted to the people residing in the United States. One of those privileges is the right to establish a legally recognized union or marriage between "a man and a woman," however neither between a male and a male nor a female and a female.

Even though citizens of this country are engaging in same-sex unions and the Constitution verifies that "no law shall abridge the privileges of the citizens," the federal and state government refuses to recognize same-sex unions as legal marriages.

Same-sex relations and unions have been common in many parts of the world for many years. In Native American tribes, berdaches, men who dressed in female clothing, were esteemed by their fellow tribe members for being spiritual leaders. A prominent berdache We'Wha served as an emissary to Washington, D.C. in the late nineteenth century, and he was married to a man. Female berdaches were also common in Native American tribes. These women would take on the actions and duties of male Indians, marry other women in the tribe, and achieve a higher status within their community. Same-sex unions among samurais are evident in early Japan where a samurai and his apprentice would take vows to love each other in this life and the next. As in marriage, sex was only one component of the union. The samurai was responsible for "social backing, emotional support, and a model of manliness." The apprentice, in return, "was expected to be worthy of his lover by being a good student of samurai manhood." In African tribes, unions similar to those of the Native American berdaches and the samurai military wives were also common. The author gives many more examples of same-sex unions in past history concluding that homosexual couples who established a life-long engagement were accepted by their community.

Because of the homophobic movement after WWII, gay activists did not stress marriage. After WWII, "homosexuals were fired right and left from federal and state government services, spied on and followed by the FBI, harassed and extorted by local police, beaten up and murdered by hustlers and hoodlums, excluded from entry into the country, and incarcerated and electroshocked pursuant to the 'sexual psychopath' laws adopted by about half the states." As you can see, homosexuals were denied their life and liberty and retaining those human rights was the main agenda for early activists. In 1969, police raided the Stonewall Bar in Greenwich Village which stemmed the "gay liberation" movement. Gays and lesbians gathered together and alerted the public that they were prepared "to resist oppressive social practices."

After the Stonewall riots, many gay and lesbian couples seeded the right to marry and some were successful, however, once the public was alerted of the possibilities of "gay marriage," political opposition stepped in and crushed any effort. For decades after the gay liberation movement, homosexual couples continued to seek marriage licenses and they were denied the right to legally marry their partners. Some couples took their chance in court in hopes that legal professional would see the unconstitutionality and double standard of only allowing heterosexual couples to engage in legal marriage.

Until Baehr v Lewin, in the state of Hawaii, the courts agreed with the state that same-sex marriages were unnatural and unlawful. On appeal to the Hawaii Supreme Court, the justice ruled in favor of Baehr, a lesbian who wanted to obtain a marriage license, and ruled that the marriage provision of a male and a woman excluding same-sex couples is unconstitutional of Hawaii's equal right's amendment. Hawaii's equal right's amendment states as follows, "No person shall...be denied the enjoyment of the person's civil rights or be discriminated against in the exercise thereof because of race, religion, sex, or ancestry." To support their side, Baehr used the case of Loving v Virginia in which the Supreme Court headed by Earl Warren ruled that prohibitions against interracial marriages were unconstitutional. Chief Justice Earl Warren stated, "Marriage is one of the 'basic civil rights of man' fundamental to our very existence and survival." However the ruling of Baehr v Lewin, the voters in Hawaii in 1998 overwhelmingly approved an amendment to the state constitution that empowered the legislature to prohibit same-sex unions. Ninia Baehr and other same-sex couples who seeked a legal union in Hawaii are left without any compensation for their discrimination.

That brings us to the question of, why does society choose to deny same-sex couples the rights shared by heterosexual couples? Some people simply dislike homosexuals and their sexual activity they engage in. Others see same-sex marriage as an oxymoron, a contradiction of terms; marriage is defined as a union between a man and a woman. And still others are afraid of a spiraling effect; if the courts allow same-sex marriage, what's next a legal union between a father and his daughter or a male and a sheep? I find all these notions to be ridiculous. First of all homosexuality is not a choice no a psychological imbalance. I am naturally attracted tot he opposite sex just as someone else is naturally attracted tot he same sex.

And to counteract the definition of marriage of being between those of opposite sex, some more modern dictionaries define marriage as "an intimate or close union." However some may argue that homosexual relations are against their religious beliefs, many pastors, reverends, and ordained ministers across this country are encouraging and performing the sacrament of marriage to couples of the same-sex. And even if same-sex marriage was legalized, it would not require any church or religion to neither recognize nor perform these marriages. Finally, if we allow same-sex marriage, it does not mean that next we will recognize incestuous or beasteality unions. Many states saw interracial marriages as unnatural and unlawful, however, when the Supreme Court overruled the Virginia decision, beasteality and incest relations remained opposed by the courts and society. A more logical reason to oppose same-sex unions would be the increased costs of businesses and corporations.

Same-sex couples want the same rights granted to heterosexual couples when they engage in a legal marriage. These rights include succession of belonging without a will, the ability to not only visit their partner in the hospital but also to make decisions in their partner's behalf when they are incompetent or unable to make decisions of their own. Homosexual couples realize that society has a negative view of same-sex marriages, however, homosexual couples are not asking society to accept them, they know this will take time, all they want is acknowledgement from the courts and legislation so that they will be able to share the same rights as other married couples.

In sight of the Baehr case, where is America now in allowing same-sex marriage? After the ruling in Baehr v Lewin, Utah in 1995, became the first state to expressly prohibit same-sex marriage. Within five years, thirty-three states have adopted laws that specifically prohibit same-sex marriage. Illinois is one of those states who likewise invalidates such unions if performed in other states. In 1996, President Clinton signed the "Defense of Marriage Act" allowing states not to recognize same-sex unions established in other states. This act is a violation of the U.S. Constitution's guarantee that each state will give "full faith and credit" to the laws of other states. One state stands out and decided to go against the norm.

Although the state of vermont still views marriage as between a man and a woman, in April of 2000, Vermont legislation passed the first law in the U.S. that allows same-sex couples to enter into a legally recognized union. The legislation allows same-sex couples to apply for a "civil union" in which they are able to share the same rights as their heterosexual counterparts receive when married. Vermont's civil union law is a huge step towards legalizing same-sex unions. Hopefully, Vermont's breakthrough will result in a domino effect across the nation. Already other northeaster states are considering civil union legislation on the basis of Vermont.

Eskridge, the author, is a homosexual lawyer who encouraged by fellow law colleagues decided to write this book. The author did not write to those people who are homophobic, instead insisted on professional counseling for this type of people, rather to those that question the laws fo only allowing heterosexuals to marry. Through relative court cases, the 14th Amendment, and state's equal rights amendment, Eskridge demonstrates the double standard of society and unconstitutionality o state's prohibitions on same-sex marriage. Eskridge refers to the double standard as "the same sexual conduct that is socially permissible and legally protected for different-sex couple is socially questionable and sometimes legally prohibited for same-sex couple." The public does not mind viewing sexual contact between those of opposite sex, however, rarely do any of these programs show any intimate contact between those of the same-sex that are clearly known on the programs as homosexual. Only recently have television programs like "Will & Grace" demonstrated a positive outlook on homosexuals.

I am now going to leave you with a story Eskridge was told by his aunt as a child. This story represent where America is in socially accepting same-sex unions; as long as they do not flaunt their sexuality, homosexuals can live a normal life. She explains that same-sex couples can live together their whole life in a small town, and the surrounding community will recognize their life-long devotion to each other. The partners are able to hold responsible jobs and neighbors and family will invite them to social events. People who harass the couple will answer to the law. The couple is able to lead normal, productive lives, but the tradeoff is that they do not flaunt their sexuality, kiss in public, or hold big extravagant weddings. Basically, as long as homosexual couple remain civil in their unions, society is more accepting of those unions.

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Date: Wed, 07 Mar 2001 09:28:45 -0500
From: "Charles W. Gossett" <cgossett@GSVMS2.CC.GASOU.EDU>
Subject: Re: The Case For Same-Sex Marriage

I have enjoyed reading the reviews of William Eskridge's book on same-sex marriage. One comment that I found confusing,however, appeared in Ms. Wellman's review when she was retelling the story Eskridge's aunt had told him about the acceptance of gay and lesbian couples in small towns. Her last sentence implies that she considers kissing in public and holding big weddings to be flaunting sexuality and that such behavior is "uncivil." For heterosexual couples, however, I hardly think that "uncivil" would be the term that comes to mind for kissing in public (of course, there are limits as to how carried away the kiss gets) or a big wedding (the local newspaper doesn't report big weddings as scandals, but as momentous and positive community events). This is part of the point that Eskridge was making about "double standards" -- what is civil for straight couples is somehow uncivil for gay couples as things stand today.

> The couple is able to lead normal, productive lives, but the tradeoff > is that they do not flaunt their sexuality, kiss in public, or hold big > extravagant weddings. Basically, as long as homosexual couples remain > civil in their unions, society is more accepting of those unions. >

Charles W. Gossett.Ph.D.

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Date: Wed, 07 Mar 2001 20:26:38 -0600
From: joy wellman <jrwellm@HOTMAIL.COM>
Subject: Re: The Case For Same-Sex Marriage

Mr. Gossett, I understand how my usage of the word civil could get misunderstood. I used the word to make a point that maybe I should have elaborated more on. First of all, Eskridge used the word civilize--gay marriages would help civilize gays and heterosexuals. I did not agree with the usage of the word, but I understood why he used it. When he referred to civilizing society, I gathered that he meant that homophobic heterosexuals should not be beating up any man who looks gay, just as any homosexual should not be "making out" or engaging in promiscuous sexual actions in public. Thats not how I feel personally, but thats how I think society in general feels. I did not mean that gays and lesbians should not engage in public affection or big weddings. Im all for that. If two people love each other, thats all that matters.  

>From: "Charles W. Gossett" <cgossett@GSVMS2.CC.GASOU.EDU> >Reply-To: The Race and Ethnicity Book Review Discussion List ><POS334-L@H-NET.MSU.EDU> >To: POS334-L@H-NET.MSU.EDU >Subject: Re: The Case For Same-Sex Marriage >Date: Wed, 7 Mar 2001 09:28:45 -0500 > >I have enjoyed reading the reviews of William Eskridge's book on same-sex >marriage. One comment that I found confusing,however, appeared in Ms. >Wellman's review when she was retelling the story Eskridge's aunt had told >him about the acceptance of gay and lesbian couples in small towns. Her >last sentence implies that she considers kissing in public and holding big >weddings to be flaunting sexuality and that such behavior is >"uncivil." For heterosexual couples, however, I hardly think that >"uncivil" would be the term that comes to mind for kissing in public (of >course, there are limits as to how carried away the kiss gets) or a big >wedding (the local newspaper doesn't report big weddings as scandals, but >as momentous and positive community events). This is part of the point >that Eskridge was making about "double standards" -- what is civil for >straight couples is somehow uncivil for gay couples as things stand today. > > > The couple is able to lead normal, productive lives, but the tradeoff > > is that they do not flaunt their sexuality, kiss in public, or hold big > > extravagant weddings. Basically, as long as homosexual couples remain > > civil in their unions, society is more accepting of those unions. > > > >Charles W. Gossett.Ph.D.  

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Date: Tue, 20 Mar 2001 13:23:37 -0500
From: Shannon Becker <shannonbecker@HOTMAIL.COM>
Subject: The Case for Same-Sex Marriage (Shannon Becker)

Eskridge Jr., William N. The Case for Same-Sex Marriage (The Free Press, New York: 1996).

Reviewed by Shannon Becker shannonbecker@hotmail.com

Have you ever fell in love? Do you remember how you felt when you found that special person to love? Love is such a special, magical feeling. It is an emotion so different from all others. People fantasize about finding their one "true" love for years and years and then one day a person finds their love and at that point their life changes forever. At that point, the person becomes one with another. Love allows two individuals to join together to become partners and live as one entity, one team, rather than as two separate individuals. Love is the bond that joins two people and gives them an avenue through which they can share their lives together.

In the United States, and throughout much of rest of the world, love is commonly expressed through the sacred union of marriage. Through marriage, a couple has the chance to openly express to the public their love for each other and their excitement for finding a mate with whom they will share their life. This marriage also provides an opportunity for the couple's loved ones to join together to celebrate the new union. Not only does marriage represent public certification of a relationship, but it also provides a legal bond that the couple will enjoy for the rest of their lives.

Throughout history, men and women have been joined through marriage. Some dictionaries define marriage as the legal union of one man and one woman. But can love only be shared between man and woman? Or is it also true that gay couples can share a true love, a love that is equal in strength to the love that is shared between a man and a woman? Because the love that is shared by gays is the same as the love shared between heterosexual couples, shouldn't gay couples deserve the right to gain public, legal certification through marriage just the same as traditional couples? This question of whether or not same-sex marriages should become legal has been the subject of many heated debates recently, as more gay couples are gaining the courage to come "out of the closet" and openly share with the public their true sexual preferences. In his book, The Case for Same-Sex Marriage, William Eskridge fully supports gays' rights to marry. Eskridge discusses various reasons which show that not allowing gays to marry is morally wrong, illegal, and limits gay individuals' personal rights.

Eskridge argues that convicted felons, divorced parents who refuse to pay child support, delinquent taxpayers, fascists, communists, child molesters, rapists, and murderers all have the right to marry during their lives. So, why should gay couples be denied? After all, gay individuals have done nothing wrong, instead they have made a choice that is non-traditional, a choice which goes against the grain of the public norm. Is this a crime and if so, should it be punishable by not allowing gays to marry? Of course it is not a crime. People across the world are different from each other for many different reasons. Because gays are different from the norm, should they be treated as second-class citizens? Should gay couples not be allowed to share the same legal union provided by marriage as heterosexuals? Eskridge notes, that gay people make up the only social group in America in which individuals are not allowed to legally marry the partner they love.

Not only is it morally wrong that gays are not allowed to marry, but it is unlawful as well. In his work, The Case for Same-Sex Marriage, Eskridge states that gays have always been denied their equal rights, the same rights which Americans have fought so hard to protect throughout history. Even state policies unlawfully discriminate against homosexuals. For example, the 14th Amendment states that no state may "deny to any person within its jurisdiction the equal protection of the laws." However, while this 14th Amendment is granting individuals freedom, a gay man or woman is not allowed to serve his/her military if they have publicly admitted to their sexual preference. Is that fair? Is it fair that a gay person cannot legally serve his country because they have publicly acknowledged their personal sexual preference? Does the fact that this personal information is public knowledge somehow inhibit a person's ability to serve his/her country? No, it does not. The fact that a person prefers people of their own sex rather than people of the opposite sex does not hinder one's ability to serve in the military.

The state's reasoning for denying same-sex marriages is based on a theory called the slippery slope. The slippery slope theory is based on the common fear that if one group, such as gays, wants to marry and is given this certain right (even though most every group in the country already has that right) then so will other non-traditional groups strive to gain the right to marry, such as polygamous or incestuous people. Thus, the state continues to illegally deny gays their rights under the Fourteenth Amendment.

Eskridge claims that there are really no reasons why gays should not be allowed to marry and he is right. Generally, the only argument that people use to fight against the legalization of same-sex marriages is that these marriages are unnatural and that they do not allow the couple the opportunity to pro-create. Does that mean that all people who are different or who are unable to pro-create should not be allowed to marry? What about the case of women who are post-menopausal, people who are sterile, men who are impotent, and aged couples? Also, what does this say for people who do not even have the desire to have children? Should they also not be allowed to marry? Will they be forced to lie and say that they do desire children just so they can get married? Worse yet, will couples be forced to have children to stay married? These statements are obviously ridiculous, but they help also show how ridiculous it is to not allow gays the right to marry.

Not only is it morally wrong to not allow gay couples to marry, not only is it illegal, but it also keeps couples from enjoying other basic rights that come with marriage. Because gays are not allowed to marry, they lose out on other numerous benefits that are enjoyed by married couples. Some of these benefits include: the preference of being declared as the personal representative of a partner who dies without a will, recognition as the person who has the right to make health care decisions for an incapacitated partner, as well as, various inheritance rights, which normally arise upon the death of a spouse.

In conclusion, as Eskridge claims throughout his work, there is really no case against same-sex marriage. Not only is it morally wrong to not allow gays to marry, but it is illegal, and further, it keeps gays from enjoying some of life's simple benefits that are typically enjoyed by married couples. It is important to realize that by allowing gays to marry, the citizens of the United States will not be harmed in any way. Rather the only thing that can happen upon legalization of same-sex marriages is an increase in the quality of life for all individuals in the United States. Until things, such as same-sex marriages, are allowed to occur, the citizens of this nation will continue to lack their full freedom; they will continue to be denied the opportunity to live a truly "free" life, whether that includes remaining single, marrying someone of the opposite sex, or marrying someone of the same sex.  

Shannon R. Becker Illinois State University    

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Date: Thu, 05 Apr 2001 07:49:14 -0300
From: Justin Vaughn <justinsvaughn@HOTMAIL.COM>
Subject: Re: The Case For Same-Sex Marriage

Justin S. Vaughn Response to: Joy Wellman's review of "The Case for Same-Sex Marriage"

 

This essay is written in response to Joy Wellman's review of "The Case for Same-Sex Marriage" by William N. Eskridge, Jr. Eskridge appears to have written a comprehensive manual on how to rebut any argument made against legalized same-sex marriage. However, there are a few flaws in his work, some concerning logic and others concerning focus. Before expanding upon these, I find it important to note the fine line involved in this issue between telling people what they can think and telling people what they can (or can not) do. Eskridge, for the most part, navigates this issue well. The lone possible exception would be his complaint that not enough media outlets represent gay figures or relationships. While this may be true, these media outlets still operate in a capitalist economy ruled by supply and demand. If there is no demand, there can be no reasonable complaint that there is no supply. Complaining that mainstream media does not cater to views that are decidedly out of the mainstream is problematic, as well as inconsistent since Eskridge seems to also argue that homosexuals are not so much after full public support and empathy as equal rights.
Other than that, Eskridge seems to have written a well thought out book, which Wellman ably reviewed. However, some of his logic either does not add up or simply escapes me. For example, his claim that homosexuality should be okay since many other cultures in history have been okay with it is troublesome. This logic is like saying since President Roosevelt had an affair, no one should have been upset with President Clintons indiscretion. If someone, and many Americans do, feels that homosexuality is wrong showing them that Indians and African tribesmen have accepted it will not convince them that they should to. Moreover, none of Eskridge's examples reflect Christian or Western morality, so they are essentially meritless with Christians and Westerners. The most damaging impact of this line of reasoning is that it ignores the single best weapon same-sex marriage advocates have in their arsenal: the U.S. Constitution.

Also, Eskridge seems to need to tease out his reasoning for the illegality of this prohibition some more. Since there is no guaranteed right to marry, advocates need to prove discrimination. This tactic worked in Vermont, and now there are legal civil unions between same-sex partners. However, if heterosexual couples can get married but homosexual couples are only eligible for civil unions, what flawed and unconstitutional legal doctrine immediately springs to mind? Exactly, Separate but Equal Doctrine. This discrimination on the basis of sexual orientation is constitutionally and statutorily prohibited, and the gay rights movement needs to carefully and methodically weave its way through the U.S. court system, much like the NAACP did when fighting racist policies and laws, to achieve its objectives.

Basically, Eskridge would have written a better book had it been focused on the illegalities of this prohibition on same-sex marriages. Trying to argue the morality of homosexuality is not the issue, a sustained movement of increasing awareness could take care of that over time. Instead, focus even more extensively on the unconstitutional nature of laws such as the Defense of Marriage Act (1996) and the overall strategy necessary to overturn this practice. For example, while this discrimination is invidious and wrong, it is going to take prolonged, hard work to change things. Ideally it shouldn't be so hard to remedy this wrong, but realistically democracy is hard. The various mechanism utilized in this country to protect our liberties make it nearly impossible to change the status of rights, even when that change is for the better.

However, Eskridge is contributing to the movement, through consciousness-raising. Americans in general may be close-minded and unsupportive of homosexuality, but they are also fiercely loyal (to a fault in fact) to the U.S. Constitution. I have faith that this struggle will inevitably succeed, but it will take a long time. Somewhere along the line the federal courts need to start hearing this case, eventually the U.S. Supreme Court. Ironically enough, in my support for this cause, I hope that day does not come soon. With the Court's current makeup and the probability that it will turn even more conservative under the tenure of President Bush, I don't know when this cause will see a victory in such a legal arena.

Justin S. Vaughn Graduate Student Department of Political Science Campus Box 4600 Illinois State University Normal, Il 61790-4600 Shroeder Hall 209-A (309)438-5919

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Date: Tue, 24 Apr 2001 17:39:09 -0500
From: Melissa Ann Lynott <malynot@ILSTU.EDU>
Subject: Re: Hall's review of The Case for Same-Sex Marriages

I feel that the right to marry the person of your choice is something that we as Americans often take for granted. Other countries have arranged marriages where one may be forced to marry someone they don't even know, while we in the United States pride ourselves on personal liberty and free will. However, this is not the case for everyone. Gay and lesbian couples have come to see the institution of marriage as a sign of inequality and discrimination. In your review, you say that Eskridge argues that this denial of the right to marry causes gay and lesbian couples to feel like "second-class citizens." I agree with this belief. Even convicted felons, delinquent taxpayers, communists, child molesters, rapists, murderers, and drug dealers are all allowed the freedom to marry the person of their choice, so long as that person is of the opposite sex.

I feel that if two people are in love, then they should be allowed to get married. Marriage is a chance for two people to express their love and commitment to each other and to the public. It also provides an opportunity for the couple's family to take part in their commitment to each other and provides a legal bond that offers many benefits to both partners.

I thought it was very interesting that Eskridge provided evidence of past same-sex relationships. I think that one of the main arguments that people make against gay and lesbian couples is that their relationships are unnatural and that they only reflect a recent trend in behavior. However, I think that the evidence provided by Eskridge proves that same-sex relationships existed in many previous societies and that means that it is neither a recent trend nor is it unnatural.

I also found the constitutionality argument to be very interesting. Eskridge argues that denying citizens the freedom to marry a person of the same sex is at odds with the Fourteenth Amendment of the Constitution. Eskridge draws upon two main cases to support this argument. The first one is Loving v. Virginia, which recognized that the state should not deny citizens the right to marry based on racial classifications. I think that this case is a good one to use because race and sexual orientation are both classifications that have been protected by the courts, so it makes sense to use it as a comparison. The second case that Eskridge uses is the Zablocki v. Redhail case, which said that the state should not impose restrictions on the freedom of personal choice in matters of marriage and family life." This is an excellent case to use for this argument because what bigger restriction can the state impose on marriage than restricting who can marry each other.

One of the aspects of Eskridge's book that I disagreed with was his statement that allowing same-sex marriage will "civilize" gay men and lesbians. You point out that he was probably using that term in order to add weight to his case and that the term was clearly directed at his intended audience who needed convincing of the validity of same-sex marriages, but I still feel that he should not have used the term. I feel that, if anything, his use of this term probably weakened his argument by implying that gay men and lesbians actually need to be civilized. Like you said, a more effective argument would have been to say that those who oppose same-sex marriage are the one's who need civilizing.

The one statement that you made that I disagree with is when you said, "abolishing legal marriage would perhaps make only those who are truly committed devote themselves to each other, and would also eradicate the legal discrimination against same-sex partners." I don't think that getting rid of legal marriage would solve any problems; especially the legal discrimination that gay and lesbian couples face. Our society needs to become more accepting of gay and lesbian couples and allowing same-sex marriages would be a great way to start this acceptance.  

Melissa Lynott Illinois State University Normal, Illinois 61761 malynot@ilstu.edu

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Date: Wed, 23 May 2001 16:19:18 -0500
From: Margaret Carney <mmcarne@ILSTU.EDU>
Subject: The Case for Same Sex Marriage: Margaret Carney

Margaret Carney Eskridge William N. Jr: The Case for Same-Sex Marriage  

The establishment of marriage is a social and political institution that was created as an organizational tool for society. For many individuals, the establishment of marriage symbolizes love and devotion. While individuals that are more skeptical argue that marriage is simply a meaningless piece of paper that is merely a formality of society. However, what about the thousands of couples who are in romantic love with someone of their own sex? The institution of marriage is an unattainable union for gay and lesbian couples. The right to marry the person you love is denied to you if you are in love with someone of the same sex.
Eskridge provides the reader with the arguments opposing same-sex marriage and then shatters the arguments proving that all opposing arguments stem from homophobia. Eskridge begins with the example of two Hawaiian women, Dancel and Baehrs, a lesbian couple who were fighting for the right to be joined in marriage. The two women brought their case before the Hawaiian Supreme Court and, unfortunately, were denied the right to be married. The couple was told that although the policy was discrimination, it was 'permissible' (Eskridge, 5). As Eskridge begins to define his arguments, he makes it clear that denying people the right to marry whom they wish is clearly discrimination. And that discrimination creates second-class citizens. Eskridge is vehemently against this discrimination and inequality and emphasizes that the state does not need to accept and approve the same-sex marriage lifestyle, they simply need to recognize them as joined citizens.

Unfortunately, the states have a history with denying couples the right to be wed. Prior to denying the same-sex community the right to marriage, the states denied couples of different races to be legally joined. In the case of Loving v. Virginia, the courts ruled that the state should not deny individuals that right to marry based on racial classifications. Another court case, Zablocki v. Redhail, the court found that the state should not impose restrictions on the "freedom of personal choice in the matters of marriage and family life" (Eskridge, 128). The Fourteenth Amendment's equal protection clause was used in Loving v. Virginia and was allowed due to the fact that the courts were denying a marriage based solely on the racial classifications of the couple. Eskridge argues that the courts are denying marriage to same-sex couples based solely the sex of the couples, which is a violation of the Fourteenth Amendment.

Eskridge begins to dissect the common arguments against same-sex marriage, and starts with the argument that marriage is traditionally between a man and a woman. Eskridge argues that same-sex relationships are not a modern innovation. He thoroughly depicts the evidence of same-sex marriages evident in medieval Europe, classic Greece, and imperial Rome. Eskridge specifically cites examples of Roman emperors who engaged in homosexual relationships. Eskridge also reveals how same-sex marriages were present in this country long before opposition to the union came about. Many Native American cultures recognized group members who deviated from their traditional gender roles, and upheld same-sex marriages involving them. Homosexual relationships are not a new phenomenon, and historically, same-sex relationships have been acknowledged and even accepted. However, today society denies same-sex couples their rights to be joined as if homosexuality is a new concept.

Eskridge introduces the reader to the gay and lesbian community's opinions by attempting to detail their opposition to marriage. Many same-sex couples firmly believe that the institution of marriage is outdated and is "rotten" (Eskridge, 75). The 'marriage is rotten' argument states that marriage includes hierarchies that create subordination and inequality in relationships. Many same-sex couples believe that you do not have to be 'married' to be joined and to have a commitment to one another that allows both partners to be equal. Eskridge attempts to refute this argument from the gay and lesbian communities, but catches himself in his own words instead. Eskridge attempts to argue that the women's movement fought for the equal rights of women and that marriage can not remove that right from women. However, he initially stated that "marriage is a socially and politically created institution that has perpetuated discrimination of women." He appears to be contradicting himself here, perhaps he was simply struggling to find an opposition to the gay and lesbian community argument that marriage is rotten.

The most interesting argument that Eskridge presents is that concerning the benefits that gay and lesbian couples are denied. Although the act of marriage is romantic and sacred, the tangible benefits that occur with marriage are monetarily and legally beneficial to the couple. However, due to the discrimination against same-sex marriages, same-sex couples are denied these legal and monetary benefits. Some states offer same-sex couples domestic partnership policies, however, Eskridge views these as unequal and discriminatory. Married couples incur various legal rights and benefits that same-sex unions are denied, even through domestic partnerships. For example, if a husband were to die, the wife has the legal right to decide the funeral services, how to distribute his remains and belongings, and receive the money from his life insurance policy. Eskridge argues that denying same-sex partners these same rights is discrimination, and although the domestic partnership policies are intended to provide same-sex unions with a few of these legal benefits, heterosexual couples automatically receive them when they are joined in marriage. Same-sex couples are also required to prove commitment to each other through proof of co-habitation and evidence of a long-term relationship. Because heterosexual couples are not required to provide such proof, Eskridge argues that the same-sex couples are again discriminated against. Due to the discrepancies between the regulations for same-sex couples to be joined and for heterosexual couples to be joined, the same-sex couples are being treated as second class citizens, and they will continually be seen as lower class if the state continues to treat them in such a discriminatory fashion. Eskridge provides the reader with the core arguments that today's society uses to oppose same-sex marriage. Many individuals continue to feel that marriage is sacred when shared between a man and woman exclusively. Eskridge illustrates how translucent this argument is by providing evidence of marriages involving transsexuals, transvestites, and hermaphrodites. This difference between sex and gender indicates that states have recognized same-sex marriages. The argument that marriage is fundamentally linked to procreation is a vital argument presented by those who oppose same-sex marriage. Eskridge argues that if one of the sole reasons that states allow heterosexual marriages is for procreation, what about the heterosexual couples who are unable to bear children? What about the couples who choose to not have a family due to personal choice? As a married individual, I found this argument to be most compelling, as my spouse and I have chosen to not have children. What would heterosexual couples do if the states began demanding that only heterosexual couples who agree to procreate could be legally married? The heterosexual community would be outraged that they would be denied the right to marry the love of their life, just as the same-sex community has the right to be outraged.

The most offensive argument presented by those who oppose same-sex marriage focuses on the slippery slope phenomenon. The slippery slope concept is that once the states begin to recognize same-sex marriages, it will lead to polygamy, child marriage, incest, and other taboo encounters. This argument is perverse and is ludicrous. This argument simply illustrates that those who oppose same-sex marriages have very homophobic views, and truly believe that homosexual individuals are child molesters and perverts. Allowing individuals of the same sex to marry the person of their choice, regardless of gender, does will lead to a world of chaos.

Eskridge provides a well-documented and well-argued case in favor of same-sex marriages. He presents the arguments against same-sex marriages and then thoroughly dissects them showing their true core of society's homophobia. The most vital argument that Eskridge stresses is that allowing same-sex marriages to occur does not mean that the states are encouraging or accepting the homosexual lifestyle, they are simply recognizing the same-sex community as equals and as a joined couple. Although I do not believe that the state and the courts should have any input on people's personal choices such as whom to love and whom to marry, they have taken it upon themselves to fully discriminate against same-sex marriages. Allowing same-sex couples to marry would not be a seal of approval on homosexual lifestyle, but it would end the discrimination that same-sex couples face. The courts allow murders, rapists, child molesters, and serial killers the right to marry, and even to bear children. If these individuals are granted the personal freedom of choosing their life mate, why discriminate and deny couples based solely on their sexual preference?

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