As many of you know, proposition 8 was passed somewhat recently. As a result of the passage of this proposition, California’s Constitution has been amended to read as follows: “Only marriage between a man and a woman is valid or recognized in California”. I would like to revisit the goals and intentions, the legal history and the positions of those opposed and in favor of this amendment. It is my hope that this blog may serve as a reminder to Californian’s of the discrimination we have fostered upon our fellow citizens. I hope, through education, I may change the views of those who voted to discriminate against others on the basis of sexual orientation. If at some point in the future, I hope we are given the opportunity to reverse this terrible decision.
Argument In Support Of Proposition 8
Proponents of Proposition 8 include, but are not limited to the following individuals: Dennis Hollingsworth, “Protect Marriage”; Gail J. Knight, wife of the late Peter Knight, author of Proposition 22; Martin F. Gutierrez; Hak-Shing; William Tam; and Mark A. Jansson, c/o Andrew Pugno. (Voter guide, 2008) The primary interest groups in support of Proposition 8 include, but are not limited to “Protect Marriage”, “Focus on the Family”, and the “Allied Defense Fund”.
According to Frank Pastore, founder of “Protect Marriage”, those in favor of an amendment to the state constitution to ban same sex marriage cite five primary reasons for their views. It is interesting to note that these reasons are also listed in the “Argument in Favor” listed in the State Voter guide of 2008. First, advocates claim that same sex is unnecessary because under California Family Code, section 297.5, Registered Domestic Partners have the same rights, protections and benefits as married couples. Second, Gay and Lesbian individuals lack commitment and monogamy in their relationships and therefore are not capable of entering into the sanctity of marriage. Third, Gay and Lesbian individuals are more likely to be pedophiles. Fourth, same sex couples are ineffective parents for the following reasons: children raised by Gay and Lesbian couples will become homosexual, lack a role model of the gender opposite their parents;, and will be excessively ridiculed by schoolmate bullies due to the sexual orientation of their parents. Fifth, California Education Code, section 51890, requires that children be taught about marriage. If gay marriage is not overturned, teachers will be required to inform children that no difference exists between gay and heterosexual marriage.
Opponents of same sex marriage also use the slippery slope argument to support their opinion that same sex marriage, leads to bestiality and polygamy. (“Protect Marriage”, 2008)
Argument Against Proposition 8
Those individuals opposed to a ban on same-sex marriage include but are not limited to the following individuals: Ellyne Bell, Sacramento City Schools; Rachael Salcido, Associate Professor of Law; and Delaine Eastin, Former California State Superintendent. The primary interest groups opposed to Proposition 8 include but are not limited to “Equality California”, “American Civil Liberties Union”, “Human Rights Campaign”, “LAMBDA Legal”, and “Pacific Gas and Electric”.
Those opposed to proposition 8 cited five primary reasons for their views. It is interesting to note that just as the arguments presented by those in favor of proposition 8 were mirrored in the State Secretary Voters Guide, the arguments presented by those in opposition to proposition 8 are also mirrored in the voter guide of 2008. First, Proposition 8 discriminates against Gay and Lesbian citizens as it is a violation of their constitutional right to marriage. Second, the “California Domestic Partner Rights and Responsibilities Act” does not provide the same rights and benefits as those enjoyed by married heterosexual couples. Third, Gay and Lesbian couples are equally capable of maintaining committed relationships. Fourth, Gay and Lesbian couples are equally as capable of effective parenting as heterosexual couples. Fifth, Education Code, section 51890 does not require that children be taught about marriage.
A REVIEW OF THE LEGAL AND SOCIAL SCIENCE LITERATURE
Following is a review of the legal and social science literature that addresses each of the arguments made by both those in favor of and those in opposition to Proposition 8.
A Review of the “Defense of Marriage Act” and the “California Domestic Partner Rights and Responsibilities Act”
Do Registered Domestic Partners enjoy the same rights and benefits as married individuals?
On September 21, 1996, the United States Congress passed, the “Defense of Marriage Act”, also known as DOMA. According to DOMA, “the word ‘marriage’ is defined as only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.” Under DOMA, “any federal benefit available to spouses, such as tax benefits, is not available to domestic partners.” According to the “California Domestic Partner Rights and Responsibilities Act” of 2003, domestic partnership “does not create a ‘marriage’ by another name, or grant registered domestic partners a status equivalent to married persons.”
Lesbian and Gay Parenting
Are gay and lesbian individuals prone to pedophiliac behavior?
Studies show that sexual orientation has no bearing on pedophiliac behavior and that Gay and Lesbian individuals are no more likely to engage in sexual acts with children than are heterosexual individuals(Strasser, 1997).
Does sexual orientation have an impact on commitment levels and parenting skills?
Studies show that sexual orientation has no bearing on commitment levels of an individual. (McCann et. al, 2005) In one case study, eighty percent of gay fathers were in committed relationships at the time they became parents(Mallon, 2004.
Do children raised by Gay and Lesbian parents become homosexual?
According to Tasker, studies show that the majority of children raised by gay and lesbian parents grow up to be heterosexual. Furthermore, these children are more comfortable with their sexual orientation than are their heterosexual counterparts who were raised by heterosexual parents. Evidence also shows that heterosexual biological parents often raise homosexual individuals(Tasker et.al, 1997).
Do children raised by Gay and Lesbian parents lack role models of the opposite sex?
Research shows that children raised by Gay and Lesbian families have regular contact with extended family members, who provide role models of the opposite gender (Weston,1997).
Are children raised by Gay and Lesbian parents teased excessively by schoolmates?
Studies show that children raised in same sex households received no more teasing from schoolmates than did their heterosexual counterparts. Tasker et. al, 1997)
A Critical Analysis of Educational Code, 51890 - 51891
California Education Codes, sections 51890 through 51891, read as follows: “comprehensive health education programs [are] designed to ensure that pupils receive instruction to aid the in making decisions in matters of personal, family, and community health.” There is no mention of the word or concept of “Marriage” stated in this code.
The Slippery Slope Argument
Opponents of same sex marriage claim that such a union will lead to bestiality and polygamy. (“Protect Marriage”, 2008) Same sex marriage became legal in Massachusetts on May 17, 2004 and is also legal in twenty-eight other nations, including Belgium, Spain, Canada, South Africa, the Netherlands, Denmark, Finland, Germany, Iceland, New Zealand, Norway, Sweden, the United Kingdom, and Uruguay. Some protections for same sex marriage exist in Andorra, Austria, Brazil, Colombia, Croatia, Czech Republic, France, Hungary, Israel, Luxembourg, Portugal, Slovenia, and Switzerland. In the United States, Massachusetts became the first state to legalize same sex marriage on May 14, 2004. Neither Massachusetts nor these countries have made any reports of bestiality or polygamy resulting from the sanctioning of same sex marriage(Lambda Legal, 2008).
The Sharon Kowalski Case
The dispute over the guardianship of Sharon Kowalski is an excellent example of the legal challenges facing same sex partners in their efforts to assert health care and personal responsibility rights for their partners. On November 13, 1983, Sharon Kowalski was involved in an automobile accident that left her physically disabled. Shortly after the accident, Sharon’s parent’s learned of their daughter’s relationship with Karen Thompson, Sharon’s lesbian partner of four years. Sharon’s parents refused to recognize this relationship, and Dennis Kowalski, Sharon’s father, assumed control of his daughter’s guardianship. Mr. Kowalski also refused Thompson’s requests to take full responsibility for Sharon’s care. In an effort to dissolve the relationship between his daughter and Karen Thompson, Dennis Kowalski made several unsuccessful attempts to place great geographical barriers between the couple. For a period of almost ten years, Karen Thompson litigated for guardianship rights of her partner, Sharon Kowalski. In the landmark 1991 decision, Guardianship of Sharon Kowalski, Ward, the Minnesota Appellate Court granted Karen Thompson’s petition for full guardianship of her life partner, Sharon Kowalski.
CONCLUSION
I did not support Proposition 8 as it violates the constitutional rights of Gay and Lesbian individuals. The arguments in favor of a ban on same-sex marriage have no basis in fact.
Social workers, parents, and teachers can play a vital role in eliminating discrimination. Through education, both children and adults can and should be taught acceptance and tolerance for individual differences. In the past, discrimination and lack of tolerance has led to violence as evidenced by Hitler’s anti Semitic views that were expressed during World War II.
In our history, other American citizens have been discriminated against. For example, the constitutional rights of African American citizens were violated in the 1896 United States Supreme Court decision, Plessey v. Ferguson, wherein the constitutional rights of African American citizens were considered to be “Separate but Equal.” Just as Plessy v. Ferguson violated the constitutional rights of African Americans, so have the constitutional rights of Lesbian and Gay citizens been violated through the passage of proposition 22, which has attempted to deny homosexual citizens the privilege of marriage that is enjoyed by heterosexual citizens. The passage of Proposition 8 would again place Gay and Lesbian citizens in the category of “Separate but Equal”. It is interesting to note that Plessy v. Ferguson was reversed in the United States Supreme Court decision of 1954, Brown v. Board of Education, wherein the court decided that the rights of African American citizens could not be separate if they were to be equal to those of Caucasian citizens. Similar to the rights of same sex individuals to marry is the right of marriage between individuals of differing ethnic backgrounds. In the 1967 U.S. Supreme Court landmark decision of Loving v. Virginia, “the fourteenth amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. Under our Constitution, the freedom to marry or not marry, a person of another race resides with the individual and cannot be infringed by the State.” (p. 12).
The citizens of this country should not have the right to make decisions based upon individual differences. As American Citizens, we are the purveyors of Freedom and Justice for All, at least according to our constitution. But the reality is, as evidenced by the passage of proposition 8, we only want freedom, justice, and equal rights for some individuals and not others. Our founding fathers fought for our rights, and these rights were not intended to be used to discriminate against others. Our founding fathers would be horrified at our decision, we have not let “Freedom Ring!”
REFERENCES
Bailey, J.M. & Dawood, K. (1998). Behavioural genetics, sexual orientation, and the family. In C.J. Patterson & A.R. D’Augelli (Eds.), Lesbian, gay, and bisexual identities in families: Psychological perspectives, (pp.3 - 16). New York: Oxford University Press.
Brown v. Board of Education, (1954) 347 U.S. 483.
California Domestic Partner Rights and Responsibilities Act of 2003 codified at California Family Code sec. 297.
California Education Code, section 51890-51891.
California Secretary of State, State Analyst. (n.d.). 2000 Voter Guide. Retrieved July 3, 2008, from http://primary2000.sos.ca.gov/VoterGuide/Propositons/22text.htm
Federal Defense of Marriage Act of 1996. Pub. L. 104-199 sec.2, 100 Stat. 2419 (Sep. 21, 1996), codified at 28 usc 1738c.
Golombok, S., Tasker, F. & Murray, C. (1997). Children raised in fatherless families from infancy: Family relationships and the socio-emotional development of children and of lesbian and single heterosexual mothers. Journal of Child Psychology and Psychiatry, 38, 783-791.
Hemmelgarn, S. (2008, July 31). Prop. 8 backers, foes file suit over ballot language. Bay Area Reporter, 38 (31). Retrieved July 31, 2008, from http://www.ebar.com/news/article.php?sec=news&article=3196
In Re Guardianship of Sharon Kowalski, Ward, (1991) Minnesota Court of Appeals 478 N.W.2d 790
Lambda Legal. (n.d.). Twenty-eight other nations protect same sex marriage. Retrieved July 17, 2008 from http://www.opposingviews.com/shoule-marriage-for-same-sex-couples-be-legal
Lockyer v. City and County of San Francisco, (2008) 43 Cal. 4th 757; 76 Cal. Rptr. 3d 683; 2008 Cal. LEXIS 5247
Loving v. Virginia, (1967) 388 U.S.1, 12.
Mallon, G.P. (2004). Gay men choosing parenthood. New York: Columbia University Press.
McCann, D. & Delmonte, H. (2005). Lesbian and gay parenting: Babes in arms or babes in the woods?. Sexual and Relationship Therapy, 20, (3), 334 – 337.
Pastore, F. (May 28, 2008). Protect Marriage. Same-sex marriage: Giant leap in the wrong direction. Retrieved July 18, 2008 from www.protectmarriage.com/why.php
Patterson, C.J. (1992). Children of lesbian and gay parents. Child Development, 63,
1025 - 1042.
Plessy v. Ferguson, (1896) 163 U.S. 537; 16 S. Ct. 1138; 41 L. Ed. 256; 1896 U.S. LEXIS 3390
Proposition 22, Limit On Marriage, codified as California Family Code, section 308.5
Same sex marriage timeline. (2008, May 18). San Francisco Chronicle, p. A6.
Strasser, M. (1997). Fit to be tied: On custody discretion and sexual orientation. American University Law Review, 46, (3), 841 – 895.
Tasker, F. & Golombok, S. (1998). The role of co-mothers in planned lesbian-led families. Journal of Lesbian Studies, 2, 49 - 68.
Weston, K. (1991). Families we choose: Lesbians, gays kinship. New York: Columbia University Press.
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