Every human society adheres to a certain norm on what ought to be done, by who, when, and how. These are the acceptable behaviors practiced as expected by the society from people within such a society. When actions from individuals in such a society tend to go against the stipulated norms, then such behaviors are deemed to be socially malpractices in that specific society
Generally, several practices are considered malpractices in society. For instance the issue of same-sex marriage/relationships i.e. gay marriages and homosexuality (sodomy and lesbianism), abortion, domestic violence, and drug abuse. Debates over the issue of the same sex have been on the increase, with the society being divided between those advocating for the practice, and those strongly opposing it as social malpractice. This paper will be aimed at discussing the social issue of same-sex relationships/ marriages, in the light of different academic and/or professional articles, as well as the presentation of a detailed critique on each article over the issue independently.
Same-sex marriage- articles opposing/criticizing
Marriage is the main social component that brings forth a family, the paramount unit of society. Without marriages, pro-creation in society would be negatively affected, as it’s through marriage, where procreation and other social decisions are made effectively. Marriages as prescribed by many scholarly articles were made to be heterosexual, i.e. between a man and a woman. However, it is a human right to choose who to be his or her marriage partner. Same-sex marriage is an option or a choice which some people usually make. Same-sex marriage/ relationships include lesbian and gay couples, which are generally considered outcasts in the general human society.
According to Duncan & Stewart (2005, 255) in their article “Marriage & the betrayal of Perez and loving, gays and lesbianism can never be social and civil rights amongst all individuals in the society. In a case held IN March 2005 in San Francisco California, a trial judge held that the California voters recently maintained and reaffirmed that marriage is a social union between a man and a woman. The reaffirmation restricted couples of the same sex from marrying. Holding on the decisions of the case the court relied heavily on what came to be known as same-sex marriage discourse from the analogy of love argument commonly labeled Perez/ loving of 1948. However, the constitutions of the state guaranteed equality when it comes to choosing a marriage partner.
Same-sex relationships and marriages have been receiving much criticism from the general society, in spite of being proposed by various minority groups in society. In arguments against same-sex marriages, Duncan & Stewart (2005, 255) believes that the gay and lesbian community are socially unacceptable. Arguments revolving around the subject of Perez/loved by the two authors indicate that same-sex marriage is a betrayal of the vital social institution, marriage, or the union of a man and a woman. The article further criticized gay and lesbian marriage relationships on the point that they don’t impart the socializing and educative functions of the marriage of shaping identities, aspirations, perceptions, and conduct of men and women. The article critics the political motives of legalizing same-sex marriage as in the analogy of Perez/ loving argument, which is betrayed in the highest degree possible
The article opposed the movements of gay/lesbians for the legalization of their marriage rights. The relationship is equated to that of a white supremacist in changing the institution, with the aim of achieving sociopolitical purposes which are not related to marriage, and altering the core constitutive meaning of the union of a man and woman to that of two persons Duncan & Stewart (2005, pp. 260-261).
In this article, Stewart (2004, p. 11) is concerned about the influence the judicial systems and units impart on the meaning of civil marriage. According to his research on various cases involving the issues of same-sex marriages, such as Vermont’s case between Baker and state and Massachusetts’ case between Goodridge and the department of public health, civil marriage has been altered in its meaning. The redefinition of marriage by the judicial and legislative powers involved in deciding the above-mentioned cases, from the point of man and woman union to the union of two people, has led to the article’s criticism of same-sex marriage (Stewart, 2004, p. 25).
The social issue of equality jurisprudence in the context of same-sex marriage has been homogeneous particularly in American and Canadian judicial practices being centered on equality guarantees with regard to marrying couples.
The meaning of procreation according to Stewarts is quite crucial in any marriage union, as it is the issue of gender roles in a marriage relationship. The plausibility of the redefinitions of marriage adversely affects the institutions as it has been known historically. Procreation and childbearing were the paramount issues in the institution of marriage. These two issues lacks in a gay/ lesbian relationship.
Stewart (2004, p.11) directs his critique to the legal definition of the union of any two persons as a civil marriage. In his point of view, the same-sex marriage terminology conveys an erroneous sense of a legally accepted marriage different from the actual marriage union between a man and a woman. Stewart (2004, p.46) goes on to criticize some legislatures which have gone further to create statutory frameworks which provide for a legally recognized marriage status to same-sex couples.
He criticized a number of jurisdictions that encompassed civil union (alternative name for legally accepted same-sex marriages) in all legal matters pertaining to legal elements of a marriage between a man and a woman. Criticism was more on jurisdictions that recognized same-sex couples as a civil union. Stewart observed that trend was increasingly on the increase. The use of the term marriage was creating an intense social, cultural, political, and legal conflict in the society (Stewart, 2004, pp. 11-13).
Since 2001, when the Netherlands legislated the first redefinition of marriage to include couples of the same sex, various governments have treaded on that path. In 1992 in South Africa during the end of the Apartheid regime, the new constitutional model dominated the debate of sexual orientation, and in 1993, the interim constitution prohibited discrimination on the basis of sexual orientation. The provision was carried forward to the permanent constitution in the year 1996. Stewart forwarded his criticism on South Africa’s constitutional court which stroke down constitutional laws aimed at discriminating against same-sex couples i.e. gays and lesbians in 2003(Stewart, 2004, p. 16).
Stewart’s criticism towards a constitutional redefinition of marriage into a civil union, encompassing gay and lesbian relationships sheds light on marriage as a social institution of procreation and childbearing which is different from any civil union, as legislated by several constitutions. The court’s reasoning and judgments have been criticized in regard to the marriage purposes of the marriage of childbearing and rearing as well as procreation, in the name of guaranteeing equality and social rights, and freedom of persons across the society (Stewart, 2004, p. 132).
Macleod’s article discusses and criticizes the act of same-sex marriage with regards to social morality, and the influence it imparts to human dignity. In the search for morality neutrality, Macleod maintains that acts involved in same-sex relationships and marriages such as sodomy demean human dignity. He asserts that laws and statutes should be made to regulate the sexual conduct between individuals. Macleod maintains that the marriage institution has several moral values.
The article morally claimed that conjugal marriage (i.e. between couples of the opposite sex) is a basic good to human beings, which is a rational and natural object of choice characterized by several societal benefits such as procreation. This moral claim never appeared among US Supreme Judicial Court (SJC) decisions and reasoning, and has been ignored blindly (Macleod 2008, p.9). The SJC was in favor of same-sex couples in striving to strike a morally neutral stand in bringing equality between all sexual relationships in society. The SJC point of argument against discrimination against same-sex partnerships was that a marriage is aimed at a stable relationship. Stability in a relationship regardless of the sex of the partners was the court’s moral value of judgment. In its reasoning, the court never reasoned about the propagation of human beings’ race, which is basically through procreation, and that same-sex relationship cannot enable this function (Macleod 2008, p.9).
According to Macleod, the Connecticut high court joined California and Massachusetts struck down conjugal marriages as well as civil union schemes in the state, on October 10, 2008. The states created same-sex marriage institutions and removed conjugal marriage (between one man and one woman) from its traditional privilege in state law (Macleod 2008, p.5).
In a point of critique, the three high courts in California, Massachusetts, and Connecticut strongly rejected domestic partnerships and civil unions which granted same-sex couples the responsibilities and rights of marriage. In questioning this move the courts turned out to search for a neutral foundation in the basis of morals for same-sex marriages. The courts dismissed the state’s conception on the meaning as well as purposes of the marriage institution. The three courts were all committed to the moral conceptions of a marriage (Macleod 2008, p.1).
Macleod reaffirmed the requirement in the Massachusetts marriage law which acquisition of a marriage license is a prerequisite for the applicant to be a member form the opposite sex. The law further condemned same-sex marriage by maintaining that a marriage union in which the members of the partner could not exercise a conjugal union is disregarded as void. On this stand, the Massachusetts law made approval of conjugal marriage union while distinguishing it from other relationships such as same-sex marriages (Macleod 2008, p.5).
In his criticism, Macleod despised the US SJC (Supreme Judicial Court)’s view that couples in same-sex marriages are equally capable of satisfying the foundational and fundamental elements of a marriage. Same-sex marriages are criticized for not being consistent with the meaning of as well as the purposes of marriage, but only relational stability.
Duncan (2006, p.29) observed that marriage is a social matter which is primarily regulated by the state, and it has not been a surprise for cases being brought in courts challenging marriage laws. The strategy of avoiding reviews on constitutional and federal claims on or for same-sex marriages has been predominant.
Cases with regards to marriage issues have been presented before courts where the plaintiffs advanced claims that constitutions mandated redefinition of marriage, in reliance of federal constitutional claims. For instance in the case of a same-sex couple who challenged the refusal of a Minnesota court clerk to issue them with a marriage license. The couple alleged that the clerk violated the federal constitution (Duncan, 2006, p.29)
In the case of Griswold v. Connecticut, the US Supreme Court ruled that the marriage statute not at any point impinges the choice on procreation. According to the Supreme Court, a clear distinction exists between that marital restriction on the basis of race and differences in sex. Advocates for same-sex marriage feel being restricted from their conjugal rights (Duncan, 2006, p.44).
In another case decided in the Kentucky Court of Appeal, the Kentucky marriage statute was criticized by the plaintiff for violating rights and freedom of association. In its ruling, the court maintained that there was no constitutional issue involved in the matter. The strategy of avoidance by courts and judges in matters pertaining to same-sex issues has worked quite well in denouncing gay and lesbian relationships, particularly in the US.
The article tries to critique the redefinition of marriage through the successful efforts by courts and federal constitutional statutes on the issue of same-sex issues. Plaintiffs proposing the practice argue on the basis of a constitutional right for civil unions, whereby gay and lesbian couples are fighting for equal freedom in participation in marriage affairs as their counterpart couples, i.e. man and woman unions. The avoidance strategy has successfully critiqued the practice by cutting out legislative branches as well as the public in favor of the judicial creation and enactment of the law with regards to marriage (Duncan, 2006, p.45).
Another critique by the article comes into the limelight clearly, through the assumption that the law is not fixed in meaning, it only means what the court through the judges is willing to claim it means. In this point of view, the court can decide to go against the constitutional statutes in denouncing same-sex marriage and disregarding gay and lesbian relationships and marriages. The judges in making a decision in cases in the cases explored in the article are paramount in discrediting the claims by several advocates and plaintiffs of same-sex marriages. The judges have significantly played a key role in critiquing the practice in the general society despite the statutes provided for by the constitutional statutes in the light of civil unions between persons (Duncan, 2006, p.46).
The strategy of avoidance attempts to critique federalism as an “inflated version of forum shopping,” Duncan (2004, p. 45), specifically in regards to the issues revolving around the issue of same-sex marriages. Different constitutional documents of different states may have different arguments on the redefinition of marriage. The results of the decisions made by judges are a must to be subject to the stipulations by the constitution of a state, or that of the federal government.
- Duncan, William C. “Avoidance Strategy: Same-Sex Marriage Litigation and the Federal Courts.” Campbell Law Review. 29:29-46 (2006).
- MacLeod, Adam J. “The Search for Moral Neutrality in Same-Sex Marriage Decisions.” BYU Journal of Public Law. 23:1-59 (2008).
- Stewart, Monte Neil and William C. Duncan. “Marriage and the Betrayal of Perez and Loving.” BYU Law Review. 3:555-595 (2005).
- Stewart, Monte Neil. “Judicial Redefinition of Marriage.” Canadian Journal of Family Law. 21:11-132 (2004)