LEGISLATION GAY MARRIAGE

Should Legislation Provide Gay Couples the Right to Marry?



Should Legislation Provide Gay Couples the Right to Marry?

Introduction

Defense of Marriage Act implicates simultaneously at least five important and controversial public policy issues. Recognizing those issues are separate, albeit related, and analyzing them independently is important for analytical and intellectual integrity. It also serves to avoid confusion by preventing distinctive legal concepts from bleeding together in argument in a way that obfuscates issues and understandings that would be clear if viewed independently. First, the substantive marriage policy issue attracts most of the attention: Should same-sex marriage be legal? Certainly, that is a very important policy question, but that is not a principal issue in Defense of Marriage Act. Section Two of Defense of Marriage Act does not speak to the definition of marriage at all but addresses the conflict-of-laws issue of interstate marriage recognition.9 Section Three of Defense of Marriage Act does address the definition of marriage in federal law, but since the federal government does not have any constitutional authority to directly regulate domestic relations, including marriage and marital status,10 and because family laws are overwhelmingly enacted by and are a major component of the policy and jurisprudence of the states, Section Three is not about marriage qua marriage. Rather, it is about extending eligibility for federal programs and benefits to certain groups of persons.

Discussion & Analyses

Although the connection between threat and sexuality is apparent in these arguments, it has yet to be examined empirically. Hypotheses The identification of threat as a factor associated with negative views of sexual minorities raises important theoretical and substantive issues. First, although the models utilize individual and group threat, they are not always precise about distinguishing when each threat is relevant. 8 This lack of specificity leads to the second problem, of whether both threats may be applicable simultaneously (Whitehead, 2011). These issues are important because in order to effectively combat heterosexism we must first know the factors with which it is associated. Very different strategies are needed if people oppose legalizing gay marriage because they fear some harm to themselves versus if their opposition stems from fear of harm to heterosexuals in general.

For example, some conflict-of-laws scholars have noted the apparent desire of some courts to circumvent various in-state or otherwise applicable unpopular legal policies such as guest statutes, spousal immunity, and married women's disabilities. This explains some of the creative development of conflict-of-laws rules, analysis, escape devices, and reforms—adoption of governmental interest analysis, for example.13 So, it should come as no surprise enterprising advocates and legislative-minded judges today might try to stretch or bend established conflict-of-laws and federalism doctrines in order to promote a substantive policy they prefer, such as same-sex marriage (Cloud, 2008). Indeed, critics of Defense of Marriage Act assert—plausibly, but erroneously—that is what Congress and the President did in enacting large majority of cases in which courts adopted the new learning [interest analysis in choice of law] dealt with guest statutes (or their functional equivalent, intrafamily immunity) and ...