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Unformatted text preview: 11/29/11% Soc%120:%Marriage%and%the%Family%
Lecture%23:%Gay%Marriage% Prof.%Elwert% % % % I%thank%Prof.%C.%McDonald%for%permission%to%adapt%some%of%her%slides% Preview% Gay%Marriage% Rights%conferred%by%marriage% Legal%landscape% Public%opinion% The%Future?%Who%knows...% NormaPve%posiPons% HRC%vs%FRC% Legal%vs%funcPonal%definiPons%of%the%family% Allison%D.%v%Virginia%M.% 1% 11/29/11% What's%At%Stake?%
brings about strong interests that cut across domains Gay%marriage%debate%is%complex%&%acrimonious% No%consensus%among%parPcipants%about%what s%at% stake% confers rights, privileges, and also obliga-ons and gays/lesbians are saying they want the Material%concerns?% same given to marriage Moral%concerns?% sinful in the Chris-an sense and morally wrong from more perspec-ves symbolism of marriage as the transi-on from adulthood and adulthood Symbolic%concerns?%achievement in the family realm We ll%start%with%material%concerns%and%revisit% why should it others%later.%%
be una\ainable for them? Rights%&%Benefits%Conferred%by%Marriage%
marriage features in a Marital%status%factors%into%>1000%federal%statutes%(GAO)% lot of legal rights Several%hundred%benefits%(exact%number%in%dispute)%accrue%to% married%individuals,%including:% Spousal%Medicare%and%Social%Security%Benefits% Tax%benefits%lower tax bills for MOST Americans spouse gePng health insurance Access%to%employer%health%insurance% through spouse's employer discrimina-on on the basis of sexual orienta-on AnP^discriminaPon%statutes% Housing% hospitals require that decisions be ImmigraPon%privileges% can't get work permit aQer immigra-on if with gay partner made by kin about the elderly but gay Inheritance% married people are not legally VisitaPon,%decision^making,%and%custody%for%the%infirm% related--> can't make medical VisitaPon,%decision^making,%and%custody%for%children%
decisions or visit the sick 2 ways to get S S: 1) individual-->work for wages and get social security taxes 2) spousal--> get social security taxes even if never worked at all Alison' case 2% 11/29/11% Legal%ObligaPons%Entailed%in%Marriage% Legal%responsibiliPes%of%family%members,%especially% to%dependents% Care%and%Nurture% Financial%Support% Decision^making%in%health%care,%educaPon,%upbringing% Physical%housing,%clothing,%and%feeding% Is%Marriage%Necessary%For%Rights?% Marriage%is%a%fast%way%to%acquire%rights% Confers%all%marital%rights%and%obligaPons%at%once% Difficult%for%gay%and%lesbian%couples%
Federal Defense of Marriage Act 1996: gives states the right not the recognize gay marriages formed in other states Few%states%allow%gay%marriage% Other%states%need%not%recognize%these%marriages% Federal%Defense%of%Marriage%Act%1996%permits%states%to%not% recognize%gay%marriages%formed%in%other%states;%defines%marriage% as%legal%union%between%man%and%woman%on%federal%level% But%many%of%these%rights%could%be%acquired%by%other%means% Marriage%vs%civil%unions%vs%piecemeal%conferral% 3% 11/29/11% Legal%Landscape%(in%flux!)%
1) sea of blue--> contains all the states that have all the Defense of Marriage Act (don't allow gay marriage) 2) 6 states all gay marriage (New England, Iowa) *cases pending in other states* Current as of Dec 15 2009 Wisconsin allows a civil union as long as it is not equivalent to gay marriage
legal push to prevent gay marriage is recent (last 15 years) because there was no previous laws passing gay marriage 1998 only a single state had a law that explicitly banned gay marriage (Arkansas) 12 additional states prohibit gay marriage by law (not constitution) (as of summer 2011) 4% 11/29/11% Europeans in large don't believe it is a huge deal Other%Countries% representa-ve surveys 1988--> over 70% opposed and only 10% favored gay marriage survey that asked opinion of gay marriage opinion has reversed on the na-onal level--> slightly more favor than oppose but can argue its s-ll a -e Graph shows results from various polls, including the General Social Survey Source: Nate Silver @ NYTimes, April 20, 2011 5% 11/29/11% "think tanks" depending on their age clear cohort replacement pa\ern in opinion of gay marriage--> older genera-ons are far more opposed to gay marriage than younger genera-ons increasing support for gay marriage is in a part of func-on of Democrats changing their mind kinds of people that consider themselves independent has changed 6% 11/29/11% Conven-onal stereotypes about Catholics opposing gay marriage is not true because they favor it more those without a religion most likely to be in favor of gay marriage Blacks are overwhelming vo-ng for Democrats but that doesn't mean that the average black fulfills stereotype of favoring gay marriage Americans in all groups have more favorable groups of gran-ng Civil Union status than gran-ng Gay Marriage status--> includes all categories 7% 11/29/11%
*************************** 1) true in every state that this cohort pa\ern of favoring or opposing gay marriage holds true--> the older you are the more likely you are to be opposed of gay marriage 2) regional landscape ma\ers--> least in favor of marriage is typically Southern states What's%Next?% PredicPng%the%future%is%difficult%% Public%opinion:%Clear%long%term%trend%toward%greater% approval%of%gay%marriage;%clear%cohort%replacement%scenario% Comparable%pace%to%acceptance%of%interracial%marriage%(which% was%legalized%by%Supreme%Court%when%majority%of%country%was% sPll%against%it)% LegislaPon:%Strong%trend%toward%potent%legal%barriers%(29% state%consPtuPonal%bans%to%date,%12%more%states%restrict% marriage%to%man+woman%by%law)% strong and fast trend to puPng up strong, legal barriers Supreme%Court%decision?% Repeal%of%Federal%Defense%of%Marriage%Act?% 8% 11/29/11% U.S.--Canada Comparison Canada: Gay marriage federally recognized (2005) United States: Federal Defense of Marriage Act (DOMA) limits marriage to "one man and one woman" (1996) States can allow gay marriage, but such marriages won't be recognized on the federal level
The next few slides excerpt Smith (2005) Public Opinion isn't Everything Public opinion in Canada is more strongly opposed to gay marriage than pubic opinion in U.S., and yet gay marriage is legal in Canada
just to hope for significant switch in public opinion may not do the trick 9% 11/29/11% Different Framing of Public Discourse Canada: Gay marriage framed as civil rights issue Equal protection argument U.S.: Gay marriage framed as moral issue (with criminal overtones until 2003) Focus not only on marriage per se, but on morality of being gay/lesbian Until Lawrence decision 2003, gay sex criminalized in some states Difficult to make an equal protection argument when marital status is easily conflated with criminal behavior can't make a civil rights argument about criminal behavior Different Institutional Contexts Canada: Federal matter, strong executive power U.S.: Federal and state laws; fragmented decision making facilitates challenges 10% 11/29/11% Different Stakes
all material already out of the way Canada: By 2005, gay marriage was largely symbolic. Gov. had previously conferred many material rights, banned discrimination, permitted adoption by same-sex couples, recognized same-sex relationships U.S.: In most states, gay marriage would confer these rights and protections in the first place => higher stakes. Common%Pro%&%Con%Arguments % Next few slides: list of common arguments pro and con gay marriage (from advocacy organizations) Mix of factual and normative claims Ask: are factual claims empirically supported? Ask: are normative claims logically coherent and consistent with accepted principles? Ask: what are the underlying deeper issues? 11% 11/29/11% Pro Gay Marriage Arguments
can be civil unions but does not mean we have to label it gay marriage The equality argument: too many important more rights are tied to marriage - to deny access to played those rights on the basis of sexual preference is discrimination. The symbolic argument: Gay marriage less most fully tests the dedication of people who played are not gay to full equality for gay people (Stoddard 1989)
draws on the no-on of marriage as a capstone experience (marker of pres-ge & status) which is not available to gays and lesbians gay marriage is the same as interracial marriage argument--> but people oppose as say that it was s-ll heterosexuals gePng married Pro Gay Marriage Arguments Civil unions are a separate but equal and second-class solution: does not allow access to are a few the 1,100 federal benefits accorded marriage. 100 Aside from the many rights accorded to married people, marriage is a privileged status in American society and should be open to all.
Source: Human Rights Campaign an LBGT rights advocacy group 12% 11/29/11% Anti Gay Marriage Arguments Marriage is not a creation of the law, but of God, and is divinely limited to heterosexual unions Homosexuality is a sin and should not be validated through the right to marry Marriage is only for heterosexual procreation Children of Lesbians are less likely to be chaste Children of gays and lesbians will be stigmatized Gay marriage endangers heterosexual marriage a bedrock of human society about childrearing Anti Gay Marriage Arguments Slippery slope #1: It will lead to polygamy. Slippery Slope #2: Allowing homosexuals to marry, would lead any people with close ties to apply for the right to marriage benefits. Slippery Slope #3: Gay marriage will increase the divorce rate, since gay relationships are inherently unstable.
Source: Family Research Council (esp. P. Spriggs) a conservative advocacy group 13% 11/29/11% Deeper Issues Marriage as a legal framework confers rights and obligations first on couples. But marital status also implicates other relationships, e.g. parenting Family law attempts to regulate social relationships. But many groupings that think of themselves as families are not recognized as families by the law. E.g. 8-10 million children live in gay or lesbian households, ~13% of all U.S. children (CDC 2004) Tension between formal legal and function definitions of the family (Minow 1991) Formal%Legal%DefiniPon%of%the%Family% How%does%one%become%part%of%someone s% family?% Birth% Marriage% AdopPon% % This%is%the%formal%legal%definiPon%of%the%family% used%in%most%family%courts.% 14% 11/29/11% FuncPonal %DefiniPon%of%the%Family% Minow%(1991)%advocates%that%courts%move%to% a% funcPonal %legal%definiPon%of%the%family:% Meaning%that%non^nuclear%family%relaPonships% that%share%the%essenPal%characterisPcs%of% tradiPonal %families%be%recognized%as% de%facto % families.% Share%affect%and%resources% Consider%each%other%family%members% Present%themselves%as%family%members%to%community% How%might%this%work%in%pracPce?% Key%terms: %
Formal%Legal% De%Jure% NormaPve% Parental%Rights% Doctrine% FuncPonal%Legal% De%Facto% RealisPc% Best%Interests%of%the% Child% 15% 11/29/11% Example:%Alison'D.'v.'Virginia'M.' At%issue:%%VisitaPon%rights%for%child%X%%age%7.% Facts%of%the%case%are%not%in%dispute:% RelaPonship%began%in%1977%and%began%cohabiPng%in%1978% Decided%to%have%a%child%in%1980%%agreed%that%Virginia%would%be% arPficially%inseminated% Baby%boy%born%in%1981,%given%Alison s%last%name%as%his%middle% name%and%Virginia s%last%name%as%his%surname% This%arrangement%conPnued%unPl%1986,%when%Virginia%bought% out%Alison s%interest%in%the%house%and%began%to%restrict%Alison s% access%to%the%child% In%1987,%Alison%moved%to%Ireland%for%career%purposes,%but% conPnued%aqempts%to%maintain%contact%with%the%child% Virginia%terminated%all%contact,%returning%all%girs%and%leqers.% The%Case% Alison%seeks%visitaPon%rights%under%DomesPc%RelaPons%Law%of% New%York% This%statute%provides%that% Either%parent%may%apply%to%the% court%to%have%a%minor%child%brought%before%the%court%and%the% court%may%award%the%natural%guardianship,%custody%or% visitaPon%to%either%parent%as%the%case%may%require %[abridged]% Case%hinges%on%whether%Alison%is%a% parent % 16% 11/29/11% Virginia s%Case% Formal%Legal:% Virginia%is%the%biological%mother% She%is%a%fit%mother% Alison%is%not%a%parent%under%the%law% Opening%parenthood%rights%to%someone%like%Alison% is%a% slippery%slope % The%court%should%uphold%the%sacred%foundaPon%of% the%family%as%limited%to%birth,%marriage,%and% adopPon.% Alison s%Case:% FuncPonal%:% Best%interests%of%the%child% Alison%is%a% de%facto %parent%to%the%child% The%court%is%denying%visitaPon%based%on%standards%Alison% could%not%meet% The%court%should%consider%whether%or%not%Alison%has% Func3oned'as'a'parent% The%court%has%an%interest%in%preserving%the%stability%of% parent%child%relaPonships,%no%maqer%how%they%were% formed.% 17% 11/29/11% Appellate%Court%Vote:% Are%you%in%favor%of:% Alison s%right%to%visit%the%child?% Virginia s%right%to%prevent%her%from%doing%so?% Broader%QuesPons:% Would%you%have%voted%differently%if:% Virginia%were%suing%Alison%for%child%support?% If%Alison%were%a%man%(e.g.%an%inferPle%cohabiPng% partner)?% What%if%he%were%the%child s%step^father?% Should%children%be%allowed%more%than%two%legally% recognized%parents?%%% Should%there%be%different%degrees%of%parenthood?%% If%so,%how%do%we%determine%who%gets%what%rights?% 18% 11/29/11% More%To%Think%About% The%following%scenario%is%based%on%real%cases:% A%married%woman%bears%the%child%of%another%man%from%an%adulterous%affair% She%deceives%her%husband%into%believing%that%he%is%the%biological%father%of% the%child% The%husband%treats%the%child%as%his%own%in%good%faith.%He%is%a%good%father.% When%the%child%is%10%years%old,%the%husband%discovers%the%decepPon%and% divorces%the%wife% Have%to%pay%child%support?% Be%granted%visitaPon%rights%against%the%objecPons%of%his%ex^wife?% Be%eligible%for%sole%custody%if%he%wants%to%conPnue%living%with%the%child?% So%you%think%the%husband%should%% Obviously,%this%isn t%a%same^sex%case.%But%it%raises%very%similar% quesPons%about%legal%vs%funcPonal%family%definiPons.%% 19% ...
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