Commitment Conundrum: Clearing Up the Confusion on Marriage Equality

by: Jamie Royce

Every queermo has heard the various arguments surround marriage equality so many times that we can recite them better than Gaga lyrics. (This could, potentially, be used as an argument for marriage equality. Because we were born this way, right?)

Anyway, most of the arguments against marriage equality are rooted in religious doctrine and preserving religious freedom. Opponents worry legalizing “same-sex marriage” will force their church to marry homosexuals and all hell will break loose, fire and brimstone and all that. Or that whole thing about Adam and Steve being just plain unnatural. Whatever.

Marriage is a very complicated touchstone of American society, intertwining legal rights and responsibilities with religion and morality. So, here is a very simplified explanation of the very complex issue of marriages, civil unions and domestic partnerships.

Religious and legal marriage

No one knows exactly where marriage came from. The custom pre-dates reliable recorded history, and almost every cataloged culture has some sort of ritual binding two people together of the opposite sex who usually procreate together. While the ceremonies themselves and the reasons for marriage differ by society and time period, they are usually performed in some sort of spiritual context. There are historical examples of polygamy—and less so, same-sex and group marriage—but they are rare.

In America, most religious institutions continue this tradition, and only practice marriage rituals for two people of the opposite sex. Religious marriage is spiritually binding, but not necessarily legally binding.

Marriage governed by the state is a consensual and contractual union between two people. The vows must be administered by a state-recognized officiate, like a judge. All parties must sign the marriage certificate and file it with the state.

A religious marriage is also a legal marriage if the officiate is recognized by the state (Remember the, “By the power vested in me by the state of _____, I now pronounce you husband and wife” part of wedding ceremonies?). All parties must also sign a marriage certificate and file it with the state.

A few religious groups or officials, like some Episcopal bishops, perform same-sex marriage rituals, but they are only also legally binding if the state recognizes the union.

Marital status is a determining factor for many rights, benefits and privileges. Thanks to the Defense of Marriage Act, the federal government recognizes marriage as a legal union between one male and one female, but allows states to decide if they want to marry same-sex couples or recognize these unions made in other states. DOMA prohibits same-sex couples from receiving family insurance benefits for employees of the federal government, collecting survivor’s benefits from Social Security and filing federal joint tax returns, among other things.  

State court decisions, ballot initiatives, constitutional amendments and legislation have all been used to legalize and outlaw marriage equality. Most states have some sort of statute defining marriage as a union between one man and one woman, or a partnership between two people whose sexes are legally male and legally female. Currently, same-sex marriage is legal in six states—Massachusetts, Connecticut, Iowa, Vermont, New Hampshire and New York—as well as D.C. Most of these jurisdictions use a gender-neutral marriage licenses.

Civil unions and domestic partnerships

Civil unions and domestic partnerships are consensual and contractual unions between two people, usually created as a “separate, but equal” solution to the marriage equality debate. They generally afford partners the same legal rights as married couples in the state. Any two consenting adults, regardless of sex, may enter into a civil union or domestic partnership, including heterosexual couples.

Nine states offer civil unions or domestic partnerships—California, Delaware, Hawaii, Illinois, Nevada, New Jersey, Oregon, Rhode Island and Washington—as well as D.C. Three states—Colorado, Maine and Wisconsin—afford some spousal rights to same-sex couples, but they are not equivalent to marriage.

A few municipalities recognize civil unions on the local level or have some sort of domestic partnership registry, but they are usually ceremonial and are not legally equivalent to marriage. Some businesses, as well as local and state governments, extend employee benefits normally offered to married heterosexual couples, like health insurance, to domestic partners and same-sex couples.

Read more on the laws governing your state.


Civil unions and same-sex marriages are a legal gray area. Often legislation governing these partnerships is written vaguely, so it is open to interpretation by judges. And these laws are fairly recent, so there isn’t too much case law on the subject.

Because civil unions and same-sex marriages are performed on the state level, the relationship is only legally binding in that state or another state that recognizes the relationship. That means a if a same-sex couple is legally wed in one state, they would still have to create separate contractual agreements when buying property or adopting a child if the couple moves to a state that doesn’t recognize same-sex marriage. If a couple would like to end a partnership, it must be terminated in a state that recognizes the relationship.

The law is especially problematic around transgender people and marriage, with complications usually boiling down to what legally determines sex. In one example, a post-operative female-to-male transgender man, whose birth certificate was amended to male, was denied an Ohio marriage license with a cisgender female because of the state’s same-sex marriage ban. Upon appeal, the court dismissed his amended birth certificate, ruling he was not a legally a man because Webster’s New College Dictionary defines male as “the sex that has organs to produce spermatozoa for fertilizing ova,” and so “it cannot be argued that the term ‘male’… includes a female-to-male post-operative transsexual.”

Criticism of marriage

Regardless of gender or sex, the current marriage paradigm in the United States is a legal partnership between two people. Polyamorous couples can only have one legally recognized partner, meaning a married partner enjoys the legal benefits. Other partners, who may be bonded together spiritually, have no legal rights and would not receive, for example, health benefits or spousal support.

From perpetuating oppression of women to high divorce rates, there are a myriad of arguments against the institution of marriage. And Against Equality, a group focused on critiquing mainstream gay and lesbian politics, argues same-sex marriage “increases economic inequality by perpetuating a system which deems married beings more worthy of the basics like health care and economic rights.”

Jamie Royce is a fierce fancy femme and mobile media machine, working as a freelance writer, reporter, editor and photojournalist. She also blogs at Stuff Queer People Need To Know.

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