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Overview of Same Sex Marriage in the U.S.: The Struggle for Civil Rights and Equality

Rita A. Webb, ACSW, DCSW

Introduction

The landmark decision by the Massachusetts Supreme Judicial Court to legalize gay and lesbian marriage has brought extensive media coverage and discussion of same sex marriage. The complexities surrounding same sex marriage are multifaceted and include a broad range of areas such as: legislation; institutional, social, and religious views; personal beliefs and biases; civil rights, ethics, and values.

The National Association of Social Workers (NASW) has policies and a code of ethics that address and provide guidance to the social work profession on lesbian, gay and bisexual issues. Currently, the same sex marriage issue is at the forefront of the equal rights discussion and debate throughout the country. For social workers, as advocates, practitioners, educators, and administrators there is an essential need to have a grasp of the social work polices, practices, and ethical concerns on same-sex marriage.

NASW’s Delegate Assembly, a member-elected body of social work representatives, approved the policy statement on Lesbian, Gay, and Bisexual Issues, which recognizes the equal rights of all people. NASW through its policy statements and the NASW Code of Ethics strives to “establish and protect the equal rights of all people without regard to sexual orientation.” (Social Work Speaks) For social workers, advocacy for the protection of the civil rights of lesbian, gays, and bisexuals is core to the professions’ view of equal rights.

This practice update addresses complex issues of same sex marriage in the context of the quest for equality, civil rights, and ethical practice.

Equality and Civil Rights for Same Sex Couples

Discriminatory practices regarding the institution of marriage have been practiced over the course of history.

  • In 1883, Sir Francis Galton began the “Eugenics” movement in England to “purify” the human gene pool. The eugenics movement took off in the United States and justified the institutionalization, sterilization, prohibition of marriage, and prevention of immigration of people with disabilities.
  • African American marriages were not recognized in all states until after the Civil War.
  • In 1927, the U.S. Supreme Court in Buck vs. Bell ( 274 U.S. 200 (1927)), legalized forced sterilization of people with disabilities to prevent them from having children.
  • Laws in at least four states ( North Carolina, Nevada, Arizona, and Oregon) prohibited sexual relations between American Indians and whites.
  • Currently, more than 30 states either prohibit or restrict marriage between people with developmental disabilities.

African-Americans, American Indians, the disabled, and same sex couples have been denied the right to choose a marital partner irrespective to race, sexual orientation, or disability. These groups have had to take their issues to court in order to defend and define their civil and marital rights.

In the landmark 1967 decision (Loving v. Virginia, 388 U.S. 1 (1967), the U.S. Supreme Court, ruled that all states must recognize inter-racial marriage. In spite of the changes for African-Americans, American Indians, and inter-racial marriages, same sex couple marriages remain in February 2004, unrecognized in all states except Massachusetts. Recently, the Massachusetts Supreme Court ruled that same sex couples have the right to a recognized state marriage (Goodridge v. Department of Public Health).

Implications

The obstacles to same sex marriage are far reaching and often have a negative impact on the individual, the couple, and their families. According to the 2000 Census, same sex couples raise more than one million children. These families are more likely to be denied important legal protections and financial benefits such as:

  • child custody
  • recognized decision-making
  • family medical leave
  • family healthcare coverage
  • healthcare
  • inheritance
  • social security benefits
  • survivor benefits
  • taxes

Access to numerous federal and state benefits, rights and privileges such as social security, taxes, inheritance, medical decisions, and many others remain unavailable to same sex couples.

Synopsis of Significant Federal and State Legislation

In 1996, President Clinton signed federal legislation for the Defense of Marriage Act (DOMA). This federal legislation is significant because it defines marriage. DOMA defines marriage as “only a legal union between one man and one woman as husband and wife, and spouse refers only to a person of the opposite sex who is a husband or a wife." To date, there are thirty-seven states that have enacted the Defense of Marriage Act and ban same sex marriage.

Domestic Unions

The introduction of DOMA initiated both disagreement and endorsement in how states and the federal government view same sex marriages. DOMA does not recognize any domestic union other than marriage between a man and a woman. In an effort to achieve a level of equality, some states have granted limited recognition of same sex domestic unions. Several states and municipalities recognize the following categories for same sex couples:

  • marriage ( Massachusetts only)
  • civil unions
  • domestic partnerships
  • reciprocal beneficiary relationships

Massachusetts is the only state to recognize marriages for same sex couples, while Vermont recognizes civil unions and Hawaii has a reciprocal beneficiary. Other state municipalities including Arizona, California, Maine, Minnesota, New York, Oregon, Washington, and the District of Columbia, recognize domestic partnerships. Recognition of domestic partnerships is increasing.

In Massachusetts , the state Supreme Court decision ruled a ban on same sex marriage violates the state’s constitution. Further comment by the court maintains that a civil rights violation exists, if the right to marry does not include the right to marry the person of one’s choice.

In 2000, the state of Vermont legally recognized same sex partners by granting civil unions. Vermont residents who enter a civil union are eligible for many state benefits available to married couples. However, there remain limitations to Vermont ’s civil unions, Massachusetts same sex marriage laws, and Hawaii ’s reciprocal beneficiary relationships in the following respect

  • Neither Massachusetts' same sex marriages, Vermont's civil union’s nor Hawaii's reciprocal beneficiary relationships are recognized in other states.
  • The federal government’s DOMA law does not recognize civil unions, same sex marriages, and reciprocal beneficiary relationships, therefore, none of these groups benefit from federal laws and protections.

Ethical Practice

Undeniably, same sex couples in committed relationships, are not afforded basic benefits, rights and protections granted heterosexual couples under state and federal laws. Even though, same sex couples live in relationships that are based on basic principles of strong and loving commitment to another, responsibility, and a right to enter into a marriage with their partner of choice, they continue to be denied the human rights, legal and economic stability provided by the recognized institution of marriage.

Because of the differences and attitudes towards same sex marriages, social workers will be challenged in their advocacy and practice around this issue. However, embedded in social work values and practice is a Code of Ethics which will provide ethical and practical guidance.

Conclusion

The controversy continues on same sex marriages. However, both proponents and opponents recognize in the decision rendered by the Massachusetts Supreme Court ruling on gay marriage, the changes and challenges that have broad ramifications for society on how the institution of marriage will be seen as more inclusive than the narrow definition used under the DOMA federal legislation.

Social workers have opportunities to advocate for lesbian, gay, and bisexual, issues in their professional and community settings. Reportedly, when a straight person knows “someone who is gay or lesbian, he or she is much more likely to support civil rights for gay people.” (Behavioral Health Management). Therefore, social workers with their knowledge, skills, and ethical professional values can counter misinformation about same sex couples and their families through education, advocacy, and communication.

References

  • Barber, M. (2003). Lesbian and gay issues are mental health issues. Behavioral Health Management, 23(6), 8-9.
  • Buck v. Bell , 274 U.S. 200 (1927)
  • Cunningham.D. (2003, July). Why withdraw the lane appeal.
  • Defense of Marriage Act. Public Law 104-199, 110 Stat. 2419 (1996)
  • Encyclopedia of North American Indians. Frederick E. Hoxie, editor. Intermarriage with non-indians . Houghton Mifflin Company 1996. USA . 
  • Goodridge v. Department of Public Health, Massachusetts Supreme Court, Suffix County SJC-08860, November 18, 2003.
  • Loving v. Virginia, 388 U.S. 1 (1967)
  • National Association of Social Workers (2003). NASW code of ethics. Washington, DC
  • National Association of Social Workers (2003). Social work speaks, 6th edition: NASW policy statements. Washington , DC : NASW, 224-235.

Resources

  • Defense of Marriage Act. Public Law 104-199, 110 Stat. 2419 (1996)
  • NASW code of ethics. Washington , DC : Author
  • Social Work Speaks, 6th edition: NASW policy statements. National Association of Social Workers
  • Stoesen, Lyn. (2004, January) Gay marriage rights upheld. NASW News. Vol. 49, No. 1. pp.6.