Darrell Thimoleon

Gender & Sexuality Essay

Note: This essay about the Defense of Marriage Act was written before its controversial
Section 3 was found unconstitutional by the Unites States Supreme Court.

For several decades, the meaning of the term marriage has been a subject of
controversy. This word is a one that has been defined by many different groups, each one having
its own belief system regarding the intentions and purposes for marriage. Because there are so
many different belief systems, it is difficult to give a general definition for this word that
effectively suits all purposes. However, the Encyclopedia of Sex and Gender defines marriage as
an unusually pervasive social institution that confers social status by joining social actors
together in sexual and procreative partnerships. (Wilson, Liz) Based on this definition, marriage
can involve just about any two parties: a man and many women, a woman and many men,
multiple men and women, same sex persons, and of course, the most common married group in
the United States, the male-female couple. However, the United States Government only
recognizes one type of marriage. Under the Defense of Marriage Act (DOMA), the United States
Government defines marriage 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. This definition is not fair to Americans in this case, to Lesbian, Gay,
Bisexual, and Transgender (LGBT) persons who do not fall under that category but wish to be
married. Therefore, the United States Government should recognize more types of marriages
under DOMA, starting with same sex marriages. In this essay I will demonstrate that the lack of
recognition of gay marriages under DOMA is not only unfair to LGBT Americans, it is
unconstitutional due to the 14th Amendment to the United States Constitution. I will also explain
how same sex marriages will provide many benefits, rights, and responsibilities for LGBT people

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Gender & Sexuality Essay

of which they previously did not have access to, and how recognized gay marriages will further
support the adopted children of the already existing same sex families.
On July 9, 1868, the United States Congress ratified the 14th Amendment to the United
States Constitution. Within its five clauses, there is one clause, part of Section 1, which is of
interest when discussing the legality of same sex marriages: the Equal Protection clause. The
Equal Protection clause reads
No State shall make or enforce any law which shall abridge the privileges or immunities
of citizens of the United States; nor shall any State deprive any person of life, liberty, or
property, without due process of law; nor deny to any person within its jurisdiction the
equal protection of the laws."
The 14th Amendment was one of the amendments that were enacted during the Reconstruction
Era after the Civil War. It was written with the intention to provide equal rights for blacks.
However, in the Supreme Court case Plessy v. Ferguson of 1896, the Supreme Court decided
that, in support of separate but equal ideology, it was constitutional to allow states to segregate
facilities such as schools, transportation, and housing because it did not violate the Equal
Protection Clause of the 14th Amendment. Segregation of blacks and whites remained legal until
1954 during Brown v. Board of Education when, as a result of a civil rights campaign led by the
National Association or the Advancement of Colored People, the Supreme Court decided that
separate but equal educational facilities were in fact unconstitutional. Later, segregation of
whites and blacks in any situation was found unconstitutional through many other cases (Gayle
v. Browder, Civil Rights Act of 1964, etc.). This is all relevant to this case because same sex
marriages, domestic partnerships, and civil unions are similar to the effects of segregation. It is
implied that the unions between LGBT persons are different, separate types of unions from the

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Gender & Sexuality Essay

unions between heterosexuals, but are still equal to them. In the next section, I will explain
how this is not so.
The difference between heterosexual marriages and same sex marriages is that
heterosexual marriages are recognized by the Defense of Marriage Act, and the latter is not. One
may wonder why it matters that same sex marriage is not recognized by DOMA. Even though
marriage started as a social institution, there are now a great many legal provisions involved.
According to a 2004 report by the United States General Accounting Office, there are a total
of 1,138 federal statutory provisions classified to the United States Code in which marital status
is a factor in determining or receiving benefits, rights, and privileges. These types of benefits,
rights, and privileges are federal provisions that involve but are not limited to: Social Security,
tax, immigration, employee benefits, and health coverage. For example, a widowed or divorced
spouse has the right to their late or ex- spouses benefits, such as their Social Security pension or
survivor benefits. However, since DOMA only recognizes heterosexual marriages, LGBT
persons have no right to these benefits. Even though some states in America allow gay
marriages, the federal government would not recognize their marriages for these provisions. This
is where same sex marriages are separate but not equal.
For further understanding of the previous section, here is an analogy: Two men, both
firefighters, are called to a very deadly fire. They saved a lot of lives, but not every life could be
saved not even theirs. Both firefighters have families that they are leaving behind: a spouse and
children. The difference is, one man is heterosexual and one is homosexual. Because the
heterosexual male died in the line of duty, his spouse is awarded $100,000, and she also receives
other benefits due to her spouses death. With this award, she can keep up with mortgage
payments or rent and utilities, buy groceries, and take care of the many needs that children have,

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Gender & Sexuality Essay

even while the income that her spouse provided is no longer available. This will give her time to
adjust as the familys head of household. The male spouse of the homosexual firefighter does not
collect any benefits due to his husbands death, because such is not allowed due to DOMA. In
order to be able to provide for his children that he now has to raise alone, he will have to find a
job that pays well enough to do so, if he doesnt have one already. This can worsen an already
difficult time for his family. Unless, that is, the 14th Amendment allows him to collect benefits,
just as the heterosexual spouse would. Because the 14th Amendment calls for equal protection of
the law, the homosexual spouse should be awarded benefits as a result of his husbands death.
This is just as if both firefighters were heterosexual, but one firefighter was White and the other
was Black. The Black firefighters spouse would receive benefits as a result of her husbands
death due to equal protection of the law. By this standard, it should be the same for same sex
marriages.
In the section above, I used an analogy that involved children. It is worth mentioning that
even though same sex couples cannot procreate together, they can adopt children. Women
couples even have the option of going to a sperm bank to conceive. According to an article by
the Human Rights Campaign, Recent data shows that at least 1 million children are being raised
by same sex couples in the United States. However, married or unmarried, the parents of these
children are excluded from many of the legal benefits of marriage since DOMA does not
recognize same sex marriages. Benefits such as earned income tax credit, the ability to file taxes
as the head of household, and the child tax credit that could be used to support the child are not
applicable to same sex families. Also, while same sex couples may be the caretakers of adopted
children, its not always possible for both parents to be their legal parent. Sometimes only one
parent is the legal parent. If the legal parent of the child dies, the partner of the legal parent does

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Gender & Sexuality Essay

not automatically get to keep the child. This is a problem because in the eyes of the child, the
partner of the legal parent is also their parent. A death in this type of family can become a lot
harder if a child with two parents suddenly has no parent at all.
Since this is a topic of controversy, there are many people who do not agree with this
argument. Supporters of the Defense of Marriage Act do not wish to see same sex marriages
awarded the same benefits of heterosexual marriages. Their most common argument is that
homosexuality itself is wrong. Some are part of the religious Right, where the general
consensus is that marriage is only a union between a man and woman in the eyes of God. They
believe homosexuality is morally wrong and the United States Government has no business
involving itself in aiding homosexuals in their pursuit of equal rights. Some believe that
homosexual partners should not be given the right to adopt children, as it may cause the child or
children to be more homosexually aware and one day identify as homosexuals. While it is true
that many marriages are unions between men and women in the eyes of God, let us not forget
that this is but one type of marriage. There are many kinds of marriages, and same sex marriage
is just one. People have a right to choose the type of marriage in which they wish to participate
in. As for the morality of homosexuality, that is strictly opinion. An opinion like this should not
so heavily weigh on whether or not homosexuals should gain equality when American livelihood
is at stake. Also, the United States Government has every reason to aid homosexuals in their
pursuit of equality. American homosexuals are still American citizens, and the government
should aid them in every way it aids everyone else, due to the Equal Protection Clause of the 14th
Amendment as stated in the sections above. In the case of same sex adoption, the Gale
Encyclopedia of Psychology reports There is general agreement that children who are adopted
and raised in families do better than children raised in institutions or raised with birth parents

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Gender & Sexuality Essay

who are neglectful or abusive. (Arcus, Doreen) The adoption process itself is a very thorough
and successful child placement process. If same sex parents were given the privilege to adopt
children, we should trust that they were completely vetted and rightfully awarded such a
privilege. Besides, according to an excerpt from the Encyclopedia of Contemporary American
Social Issues, children of same sex couples have just about the same chances of identifying as
LGBT as children of heterosexual couples do. (Jones, Jeffrey)
In this essay, I have argued that the Defense of Marriage Act is unconstitutional due to the
14th Amendment to the United States Constitution by comparing DOMA to the separate but
equal segregation ideology that has been found unconstitutional by the Supreme Court in many
of their cases; I have demonstrated that same sex couples have just as much right to seek the
many benefits of being married as heterosexuals already enjoy; and I have explained why
marriage will benefit the children of the many families headed by same sex couples. Not only do
same sex couples deserve the right to be married, they deserve the right to be recognized as
married couples within this government. The Defense of Marriage Act is not fair to same sex
couples and it should be either replaced or amended so that same sex couples have the right to be
married and recognized by the US Government just as heterosexuals do. It is the just thing to do,
especially because the United States Constitution supports it. LBGT people should be able to
enjoy the rights, benefits, and responsibilities of being married, not to mention the ability to
profess what love they have for their partner in front of the people they love at the highest
possible level available to the human race.

Darrell Thimoleon

Gender & Sexuality Essay

Works Cited

Wilson, Liz. "Marriage." Encyclopedia of Sex and Gender. Ed. Fedwa Malti-Douglas. Vol. 3.
Detroit: Macmillan Reference USA, 2007. 947-954. Gale Virtual Reference Library.
Web. 3 Mar. 2013.
Arcus, Doreen. "Adoption." The Gale Encyclopedia of Psychology. Ed. Bonnie Strickland. 2nd
ed. Detroit: Gale, 2001. 15-19. Gale Virtual Reference Library. Web. 3 Mar. 2013.
"An Overview of Federal Rights and Protections Granted to Married Couples." Human Rights
Campaign. THE HUMAN RIGHTS CAMPAIGN, n.d. Web. 03 Mar. 2013.
Jones, Jeffrey. "Gay Parent Adoption." Encyclopedia of Contemporary American Social Issues.
Ed. Michael Shally-Jensen. Vol. 3: Family and Society. Santa Barbara, CA: ABC-CLIO,
2011. 995-1002. Gale Virtual Reference Library. Web. 2 Mar. 2013.
United States. United States Congress. General Accounting Office. Defense of Marriage Act:
Update to Prior Report. N.p.: Dayna K. Shah, 2004. General Accounting Office. Web. 3
Mar. 2013.
United States. United States Congress. Defense of Marriage Act. N.p.: n.p., n.d. U.S.
Government Printing Office. Web. 3 Mar. 2013.
United States. Fourteenth Amendment to the United States Constitution. Philadelphia:
Constitutional Convention, 1787. National Archives and Records Administration. Web. 3
Mar. 2013.