May 19, 2008
Posted at 9:00 am (Pacific Time)
The Traditional Values Coalition’s May 15th response to the California Supreme Court’s marriage equality ruling contained a big surprise.
I’m not referring to their view of the decision itself, which was predictably negative. TVC characterized it as a “stunning example of the ultimate tyranny of judicial activism” that “makes the voters’ will unconstitutional” and “effectively destroyed the sanctity of marriage defined as between only a man and a woman.”
No, the surprise was in their explanation of why they believe the California justices were wrong to rule that sexual orientation is a suspect classification under California law, a decision that means the California courts will now subject any laws and policies that discriminate against sexual minorities to “strict scrutiny,” the same standard that is used to evaluate the legality of gender and racial discrimination.
According to the TVC,
….This decision is also fundamentally wrong because homosexuality has never been declared by the American Psychiatric Association, the American Psychological Association, or the National Academy of Sciences as being completely genetic, nor does it fulfill the other requirements for minority-status classification. Therefore, it is still a behavior-based lifestyle choice that should not be given the equivalent of insular and discreet minority status.
Disregard the phrase about genetics. The question of whether or not sexual orientation is innate has long been a concern of the TVC’s leader, Rev. Lou Sheldon. The truly interesting subtext here is that the TVC now accepts scientific authority — including the two APAs — as the appropriate source for factual information about sexual orientation.
What a refreshing departure from the Christian Right’s frequent attempts to distort and subvert the findings of scientific research!
Since the TVC would surely never do anything so intellectually dishonest as to selectively cite only the research findings that are consistent with their own ideological position, I guess we can now expect them to echo other assertions by the APAs that are based on scientific research about sexual orientation and sexual minorities.
Here are some good candidates for immediate TVC endorsement.
- “[T]here is no scientific evidence that parenting effectiveness is related to parental sexual orientation: lesbian and gay parents are as likely as heterosexual parents to provide supportive and healthy environments for their children.”
- “[R]esearch has shown that the adjustment, development, and psychological well-being of children is unrelated to parental sexual orientation and that the children of lesbian and gay parents are as likely as those of heterosexual parents to flourish.”
- And in its Resolution on Sexual Orientation & Marriage that same year, the APA found that “psychological research on relationships and couples provides no evidence to justify discrimination against same-sex couples.”
- For its part, the American Psychiatric Association has concluded that “altering sexual orientation is not an appropriate goal of psychiatric treatment.” Moreover, “the American Psychiatric Association opposes any psychiatric treatment, such as ‘reparative’ or ‘conversion’ therapy, which is based upon the assumption that homosexuality per se is a mental disorder, or based upon a prior assumption that the patient should change his/her homosexual orientation.”
While we await the TVC’s embrace of these and other APA declarations, a clarification is in order concerning their criticism of the California Court decision.
It’s true that the amicus brief filed by two APAs, the California Psychological Association, and the National Association of Social Workers and its California chapter correctly noted that scientific research has not determined the origins of sexual orientation. This was stated in Footnote 60 of the brief:
Although much research has examined the possible genetic, hormonal, developmental, social, and cultural influences on sexual orientation, no findings have emerged that permit scientists to conclude that sexual orientation — heterosexuality, homosexuality, or bisexuality — is determined by any particular factor or factors. The evaluation of amici is that, although some of this research may be promising in facilitating greater understanding of the development of sexual orientation, it does not permit a conclusion based in sound science at the present time as to the cause or causes of sexual orientation, whether homosexual, bisexual, or heterosexual. [bibliographic references omitted]
And here’s the text of the paragraph in the body of the brief where that footnote appeared:
As noted [above], homosexuality is neither an illness nor a disability, and the mental health professions do not regard a homosexual orientation as harmful, undesirable, or requiring intervention or prevention. Currently, there is no scientific consensus about the specific factors that cause an individual to become heterosexual, homosexual, or bisexual — including possible biological, psychological, or social effects of the parents’ sexual orientation.[60] However, the available evidence indicates that the vast majority of lesbian and gay adults were raised by heterosexual parents and the vast majority of children raised by lesbian and gay parents eventually grow up to be heterosexual.
Although the TVC correctly characterized the two APAs’ statement in the brief, the question of origins became irrelevant to sexual orientation’s status as a suspect classification under California law as of last Thursday’s ruling. I’m not a legal expert, but I think the California Supreme Court decision explains this pretty clearly in several passages. Here’s what the majority opinion said on pp. 96-98 (with legal case citations and quotations omitted and some punctuation modified).
First, the justices stated their opinion about the status of sexual orientation:
[W]e conclude that sexual orientation should be viewed as a suspect classification for purposes of the California Constitution’s equal protection clause and that statutes that treat persons differently because of their sexual orientation should be subjected to strict scrutiny under this constitutional provision.
Next, they summarized the lower court’s rationale for not using strict scrutiny:
In addressing this issue, the majority in the Court of Appeal stated: “For a statutory classification to be considered ‘suspect’ for equal protection purposes, generally three requirements must be met. The defining characteristic must (1) be based upon an immutable trait; (2) bear no relation to [a person’s] ability to perform or contribute to society; and (3) be associated with a stigma of inferiority and second class citizenship, manifested by the group’s history of legal and social disabilities. While the latter two requirements would seem to be readily satisfied in the case of gays and lesbians, the first is more controversial.” Concluding that “whether sexual orientation is immutable presents a factual question” as to which an adequate record had not been presented in the trial court, the Court of Appeal ultimately held that “[l]acking guidance from our Supreme Court or decisions from our sister Courts of Appeal,” the court would review the marriage statutes under the rational basis, rather than the strict scrutiny, standard.
Then the justices provided the very guidance that the Court of Appeal said it lacked. They explained why strict scrutiny is to be used in cases involving sexual orientation discrimination:
Past California cases fully support the Court of Appeal’s conclusion that sexual orientation is a characteristic (1) that bears no relation to a person’s ability to perform or contribute to society, and (2) that is associated with a stigma of inferiority and second-class citizenship, manifested by the group’s history of legal and social disabilities.
We disagree, however, with the Court of Appeal’s conclusion that it is appropriate to reject sexual orientation as a suspect classification, in applying the California Constitution’s equal protection clause, on the ground that there is a question as to whether this characteristic is or is not “immutable.” …[I]mmutability is not invariably required in order for a characteristic to be considered a suspect classification for equal protection purposes.
And the justices noted a parallel that must have been particularly interesting to the TVC:
California cases establish that a person’s religion is a suspect classification for equal protection purposes… and one’s religion, of course, is not immutable but is a matter over which an individual has control. Because a person’s sexual orientation is so integral an aspect of one’s identity, it is not appropriate to require a person to repudiate or change his or her sexual orientation in order to avoid discriminatory treatment.
Thus, although the TVC is correct (in my opinion) to defer to scientific authority concerning the current state of knowledge about sexual orientation’s origins, they are wrong in arguing that sexual orientation must be “completely genetic” in order to be a suspect classification under California law, and that it doesn’t “fulfill the other requirements for minority-status classification.” The California Supreme Court — whose ruling on such issues is the last word — has said otherwise.
Presumably, the TVC will soon correct this factual inaccuracy about California law on its website and in its public statements.
I’ll be watching for that, just as I’ll be eagerly waiting for the TVC to revise its past statements about sexual minorities so they are consistent with mainstream scientific opinion.
But maybe I won’t hold my breath.
Copyright © 2008 by Gregory M. Herek. All rights reserved.
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May 15, 2008
Posted at 4:48 pm (Pacific Time)
Leading up to today’s historic decision striking down state laws that prohibit same-sex couples from marrying, the California Supreme Court received 45 amicus curiae (friend of the court) briefs. The briefs were filed by diverse sources, including California cities, elected officials, law professors, and religious, business, and professional organizations.
It’s often difficult to know what impact such briefs have on judicial decision making. As a contributor to briefs filed by the American Psychological Association (APA) in other cases, I’ve sometimes wondered whether they were even read by the Court.
In today’s written opinion, however, the California Court majority characterized the briefs they’d received as “extensively researched and well-written” and acknowledged having “benefited from the considerable assistance provided by these amicus curiae briefs in analyzing the significant issues presented by this case” (Note 10, pp. 22-23).
While many of the briefs may have influenced the justices’ thinking in a variety of ways, three of them were specifically referenced by the Court.
Two of those briefs were filed by opponents of marriage equality.
- The Court responded to a passage in the brief filed by Pat Robertson’s American Center for Law & Justice, which cited the philosopher John Rawls to argue that recognizing a constitutional right to marry for same-sex couples will devalue the institution and will have detrimental effects on children. The Court responded that, elsewhere in the same work, Rawls explicitly argued that if gay and lesbian “rights and duties are consistent with orderly family life and the education of children, they are, ceteris paribus [all other things being equal], fully admissible” (Note 51, pp. 78-79).
The third amicus brief explicitly cited by the Court was filed by the American Psychological Association, American Psychiatric Association, National Association of Social Workers, and some of their California state affiliates. (In the interests of full disclosure, it’s appropriate to acknowledge that I played a role in writing this brief.)
The APA brief was quoted in reference to the Court’s decision that, while California marriage laws don’t constitute discrimination on the basis of gender or sex, they do unlawfully discriminate on the basis of sexual orientation:
In our view, the statutory provisions restricting marriage to a man and a woman cannot be understood as having merely a disparate impact on gay persons, but instead properly must be viewed as directly classifying and prescribing distinct treatment on the basis of sexual orientation. By limiting marriage to opposite-sex couples, the marriage statutes, realistically viewed, operate clearly and directly to impose different treatment on gay individuals because of their sexual orientation. By definition, gay individuals are persons who are sexually attracted to persons of the same sex and thus, if inclined to enter into a marriage relationship, would choose to marry a person of their own sex or gender.[59] A statute that limits marriage to a union of persons of opposite sexes, thereby placing marriage outside the reach of couples of the same sex, unquestionably imposes different treatment on the basis of sexual orientation (pp. 94-95).
Here’s Footnote 59:
[59] As explained in the amicus curiae brief filed by a number of leading mental health organizations, including the American Psychological Association and the American Psychiatric Association:
“Sexual orientation is commonly discussed as a characteristic of the individual, like biological sex, gender identity, or age. This perspective is incomplete because sexual orientation is always defined in relational terms and necessarily involves relationships with other individuals. Sexual acts and romantic attractions are categorized as homosexual or heterosexual according to the biological sex of the individuals involved in them, relative to each other. Indeed, it is by acting — or desiring to act — with another person that individuals express their heterosexuality, homosexuality, or bisexuality. . . .
Thus, sexual orientation is integrally linked to the intimate personal relationships that human beings form with others to meet their deeply felt needs for love, attachment, and intimacy. In addition to sexual behavior, these bonds encompass nonsexual physical affection between partners, shared goals and values, mutual support, and ongoing commitment.
Consequently, sexual orientation is not merely a personal characteristic that can be defined in isolation. Rather, one’s sexual orientation defines the universe of persons with whom one is likely to find the satisfying and fulfilling relationships that, for many individuals, comprise an essential component of personal identity.”
We made this point to explain that sexual orientation is inherently about relationships. As we documented in the brief (and as I’ve discussed in earlier posts), empirical research indicates that same-sex committed relationships don’t differ from heterosexual committed relationships in their essential psychosocial qualities, their capacity for long-term commitment, and the context they provide for rearing healthy and well-adjusted children.
Thus, the basis for according same-sex couples a legal status different from that of heterosexual couples ultimately boils down to the partners’ sexual orientation and the State’s role in stigmatizing sexual minorities.
The California justices agreed and forcefully rejected sexual orientation discrimination as unconstitutional, not only in the realm of marriage but in all areas. In fact, the Court ruled that instances of sexual orientation discrimination should be subjected to strict judicial scrutiny — the same standard that is applied in cases of racial and gender discrimination.
Of course, the story doesn’t end here. Court rulings typically don’t go into effect until 30 days after they’re issued. And opponents of marriage equality plan to ask the Court to place its decision on hold until the November election, when they hope to qualify a ballot proposition that would amend the state constitution to bar same-sex couples from legally marrying.
Today, however, many Californians — gay, lesbian, bisexual, and heterosexual — are celebrating a tremendous, long sought victory. And, no doubt, many are thinking of themselves as friends of this Court.
Copyright © 2008 by Gregory M. Herek. All rights reserved.
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August 30, 2007
Posted at 4:39 pm (Pacific Time)
“Oh, there’s nothing halfway
About the Iowa way to treat you,
When we treat you
Which we may not do at all.”
–Meredith Wilson (“Iowa Stubborn”
from The Music Man)
I’m not an attorney, but Judge Robert Hanson’s 63-page written opinion today overturning Iowa’s ban on marriage by same-sex couples struck me as a resounding victory for the six couples who brought the suit and for proponents of marriage equality.
In the days and weeks ahead, lawyers will be dissecting the opinion. And the decision will almost certainly be appealed to the Iowa Supreme Court.
In the interim, excerpts from Judge Hanson’s findings of fact (listed in his opinion under the heading “Material Facts as to Which There is No Genuine Issue”) may be of interest to readers of Beyond Homophobia.
First, some personal background on my own involvement with the case.
As one of the plaintiffs’ expert witnesses, I presented the Court with a declaration that summarized the social science data relevant to sexual orientation and same-sex relationships. When I was deposed by a lawyer from the Polk County Attorney’s office, I was impressed that he had apparently read not only my declaration but also all of my blog entries. In fact, he brought copies of several entries to the deposition and entered them into the official record as exhibits. (The plaintiffs were especially interested in my entry on December 27, 2006, Relationship Science.)
Thus, it seems appropriate to post some of of the Court’s findings of fact derived from the social science data here. They are listed below (numbers correspond to those used by Judge Hanson in his opinion):
56. …Sexual orientation is integrally linked to the intimate personal relationships that human beings form with others to meet their deeply felt needs for love, attachment and intimacy. One’s sexual orientation defines the universe of persons with whom one is likely to find the satisfying and fulfilling relationships that, for many individuals, comprise an essential component of human identity and life. The bonds formed in these relationships encompass not only sexual behavior, but also nonphysical affection between partners, shared goals and values, mutual support, and ongoing commitment.
57. Homosexuality is a normal expression of human sexuality….
59. A person’s sexual orientation is highly resistant to change.
60. Interventions aimed at changing an individual’s sexual orientation have not been demonstrated by empirical research to be effective or safe. They are considered ethically suspect, and have generated cautionary statements from virtually all of the major mental health professional associations because such interventions can be and have been harmful to the psychological well-being of those who attempt them.
63. Being gay or lesbian poses no inherent obstacle to leading a happy, healthy and productive life. Gay and lesbian persons have the capacity to form and are successful at forming lasting, committed, healthy, and mutually satisfying intimate relationships, just as heterosexual persons do, and which are equivalent to heterosexual relationships. The prevalence and durability of same-sex relationships are striking especially considering lack of access to marriage and marriage’s attendant obstacles to separation….
And here are some relevant findings based on Dr. Michael Lamb’s testimony:
72. Nothing about a parent’s sex or sexual orientation affects either that parent’s capacity to be a good parent or a child’s healthy development (“adjustment”). Lesbian and gay persons have the capacity to raise healthy and well-adjusted children.
73. There is consensus within the mainstream scientific community that parental sexual orientation has no effect on children’s adjustment. Numerous leading organizations representing mental health and child welfare professionals (e.g., the American Academy of Pediatrics, the American Psychiatric Association, the American Psychological Association, the National Association of Social Workers and the Child Welfare League of America) have issued statements confirming that lesbian and gay parents are as effective as heterosexual parents in raising well-adjusted children and that these parents and their children should not face discrimination.
Judge Hanson also found that “Plaintiffs and their families are harmed in numerous tangible and intangible (including dignitary) respects by their exclusion from the right to marry in Iowa.” He went on to list more than 20 specific instances of such harm.
After so many courts have ignored the social science data, it’s nice to see one get it right.
A copy of the written opinion is posted on the website of Lambda Legal. Lambda attorneys Camilla Taylor and Kenneth D. Upton, Jr., argued the case in collaboration with Dennis Johnson of Dorsey and Whitney in Des Moines.
Copyright © 2007 by Gregory M. Herek. All rights reserved.
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December 27, 2006
Posted at 10:33 am (Pacific Time)
An early episode of the old TV sitcom, The Many Loves of Dobie Gillis, was titled “Love Is A Science.” In it, Zelda Gilroy introduced Dobie to the concept of propinquity as a source of romantic attraction.
Propinquity refers to physical proximity. Because of their last names, Dobie and Zelda regularly experienced it, thanks to Central High School’s alphabetically arranged student seating charts.
As it happens, social scientists who study relationships have indeed found that propinquity is often a precursor to attraction. In fact, researchers have learned quite a bit about romantic relationships during the decades since Dobie and Zelda’s first on-camera meeting in 1959.
For years, that research focused on heterosexual couples. In the late 1970s, however, Dr. Anne Peplau, a respected social psychologist and relationship researcher, began to study the intimate relationships of same-sex couples with the goal of broadening scientific understanding of all close relationships.
Three decades later, Prof. Peplau is still a leading scholar in relationship science. With new challenges to state marriage laws now proceeding through the Maryland, Connecticut, and Iowa courts, the recent publication of her newest review of the scientific literature on same-sex couples is especially timely.
The article, by Dr. Peplau and her UCLA graduate student, Adam Fingerhut, appears in the 2007 volume of the Annual Review of Psychology, a widely-cited source of authoritative and analytic reviews of current research on a variety of topics.
Titled “TheClose Relationships of Lesbians and Gay Men,” the article summarizes the current state of scientific knowledge about same-sex relationships. It also highlights recent research trends and discusses how the growing body of research on same-sex couples has contributed to scientific understanding of close relationships in general.
Here are some of the main research findings discussed by Peplau and Fingerhut:
- Lesbians, gay men, and heterosexuals seek similar qualities in their romantic partners. “Regardless of sexual orientation, most individuals value affection, dependability, shared interests, and similarity of religious beliefs. Men, regardless of sexual orientation, are more likely to emphasize a partner’s physical attractiveness; women, regardless of sexual orientation, give greater emphasis to personality characteristics.”
- Traditional heterosexual marriages are organized around a gender-based division of labor and a norm of greater power and decision-making authority for the man. By contrast, same-sex couples appear to place greater value on achieving a fair distribution of household labor that is not linked to traditional roles and they often strive for power equality. However, like many heterosexual couples that espouse equality, not all same-sex couples actually achieve equal sharing of day-to-day household responsibilities or power equality.
- Heterosexual and same-sex couples display “striking similarities” in their reports of love and relationship satisfaction. “Like their heterosexual counterparts, gay and lesbian couples generally benefit when partners are similar in background, attitudes, and values” and when they both “perceive many rewards and few costs from their relationship.”
- “Among same-sex and heterosexual couples, there is wide variability in sexual frequency and a general decline in frequency as relationships continue over time. In the early stages of a relationship, gay male couples have sex more often than do other couples…. Lesbian couples report having sex less often than either heterosexual or gay male couples.”
- While having a sexually exclusive relationship tends to be associated with satisfaction in lesbian and heterosexual couples, this pattern is less common among gay male couples. Gay men are less likely than lesbians or heterosexuals to believe sexual exclusivity is important for their relationship, and are more likely to engage in sex with someone other than their partner. Gay male couples often explicitly negotiate the extent to which they will or won’t be sexually exclusive.
- “Lesbian, gay male, and heterosexual couples report a similar frequency of arguments and tend to disagree about similar topics, with finances, affection, sex, criticism, and household tasks heading the list.” The problem-solving skills of lesbian and gay couples appear to be at least as good as those of heterosexual couples. “As with heterosexual couples, happy lesbian and gay male couples are more likely than are unhappy couples to use constructive problem-solving approaches.”
- As with heterosexual couples, three main factors affect gay and lesbian partners’ psychological commitment to each other and the longevity of their relationship: (1) positive attraction forces, such as love and satisfaction, that make partners want to stay together; (2) the availability of alternatives to the current relationship, such as a more desirable partner; and (3) barriers that make it difficult for a person to leave the relationship, including investments that increase the psychological, emotional, or financial costs of ending a relationship, as well as moral or religious feelings of obligation or duty to one’s partner.
Of course, these conclusions are based on aggregate data and refer to general patterns in the population at large. Every couple — gay, lesbian, or heterosexual — is unique and doesn’t necessarily conform to all of the patterns described here.
As for Zelda and Dobie, propinquity apparently was important after all. They appeared as a married couple in the 1987 reunion movie Bring Me the Head of Dobie Gillis.
In real life, however, events took a different turn. The role of Zelda was played by Sheila James, now the Honorable Sheila James Kuehl, state senator for California’s 23rd District. When she joined the California Assembly in 1994, Sen. Kuehl became the first openly gay person elected to the California legislature. She has been a leading advocate for children, civil rights, the environment, and women’s issues.
* * * * *
Peplau and Fingerhut’s Annual Review of Psychology article has been published on-line (access is restricted to subscribers) and will be available in print in January.
Copyright © 2006 by Gregory M. Herek. All rights reserved.
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October 25, 2006
Posted at 9:27 pm (Pacific Time)
Earlier today, the New Jersey Supreme Court released its long-awaited ruling on the Garden State’s marriage laws.
The 7-member court unanimously decided that same-sex couples must be granted the same rights and responsibilities as different-sex married couples. The justices split, however, on how to remedy current inequities.
A 4-justice majority ruled that while same-sex couples have a right to all the statutory benefits and privileges conferred on heterosexual married couples, they do not have a constitutionally protected right to marry.
A 3-justice minority, led by retiring Chief Justice Poritz, dissented, arguing that anything less than marriage equality confers second-class status on same-sex couples.
On a personal note, I was honored that Chief Justice Poritz cited my 2006 American Psychologist article in a passage on pages 16-17 of her concurrence/dissent:
“Although the State has not made the argument, I note that the Appellate Division, and various amici curiae, have claimed the ‘promotion of procreation and creating the optimal environment for raising children as justifications for the limitation of marriage to members of the opposite sex.’ …. That claim retains little viability today. Recent social science studies inform us that ‘same-sex couples increasingly form the core of families in which children are conceived, born, and raised.’ Gregory N. [sic] Herek, Legal Recognition of Same-Sex Relationships in the United States: A Social Science Perspective, 61 Am. Psychol. 607, 611 (2006). It is not surprising, given that data, that the State does not advance a ‘promotion of procreation’ position to support limiting marriage to heterosexuals. Further, ‘[e]mpirical studies comparing children raised by sexual minority parents with those raised by otherwise comparable heterosexual parents have not found reliable disparities in mental health or social adjustment,’ id. at 613, suggesting that the ‘optimal environment’ position is equally weak. Without such arguments, the State is left with the ‘but that is the way it has always been’ circular reasoning….”
It will be an important step forward if other judicial and legislative bodies will similarly consider the relevant social science research, and will reject unfounded myths and stereotypes when making their decisions about sexual minority families.
The New Jersey legislature now has 6 months to grant de facto equality to same-sex couples but is not obligated to achieve this end by changing the marriage statutes. They are free to create a parallel structure along the lines of Vermont’s civil unions.
The unanimous finding that same-sex couples must be granted equal rights and opportunities certainly represents a significant victory for sexual minorities, especially in light of recent setbacks from state courts in New York and Washington. As I noted in my October 24 post, civil unions and domestic partnerships represent an important step toward eliminating social inequalities based on sexual orientation and are vastly superior to nonrecognition of same-sex committed relationships.
Nevertheless, the fact that the New Jersey court fell one vote short of granting same-sex couples the right to marry must temper any victory celebrations. To the extent that New Jersey represented one of the most likely venues for a Massachusetts-style pro-marriage ruling, the Court’s decision to require a more modest remedy raises questions about the prospects for marriage cases now in the Maryland, Iowa, Connecticut, and California courts.
Copyright © 2006 by Gregory M. Herek. All rights reserved.
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October 24, 2006
Posted at 8:01 pm (Pacific Time)
To summarize my posts of October 22 and October 23, legal recognition of same-sex couples will benefit the partners in a variety of ways. It is likely to increase their financial security and reduce the stress they experience when facing life’s traumatic events. As a consequence, the members of the couple are likely to be physically and psychologically healthier. To the extent that legal recognition enhances the well-being of parents, it will also benefit their children.
But can’t the problems and inequities experienced by same-sex couples be adequately addressed through arrangements other than marriage? Civil unions and second-parent adoptions, it might be argued, could conceivably grant all the rights and privileges now conferred by marriage without actually designating the couple as “married.”
This argument is problematic for at least three reasons.
First, marriage is recognized across borders. By contrast, same-sex couples in civil unions can’t be certain they will be treated as a couple or family outside their home state. If they face a medical emergency when they’re away from home, for example, the consequences can be nightmarish. Their mobility is thus restricted or, if they leave their home state, they are subjected to heightened uncertainty, anxiety, and stress, compared to heterosexual married couples.
It’s true that within the US, this concern about mobility currently affects married same-sex couples from Massachusetts as much as domestic partners from other states. Interstate recognition, however, is likely to come sooner for marriage than for civil unions. This is because the states already have laws on the books dealing with marriage. Thus, they’ll be able to assimilate same-sex spouses to their existing legal structures more easily than domestic partners.
Second, while marriage has profound effects on the lives of spouses, the extent to which civil unions and domestic partnerships have a comparable impact isn’t certain. Many studies have shown that heterosexual cohabiting couples don’t enjoy the same health advantages as their married counterparts. Similarly, although forming a domestic partnership or civil union probably increases a couple’s feelings of love and commitment, those institutions may not confer the same social and psychological benefits as marriage.
We don’t yet have research data to directly address this question. However, the unique status of marriage in US society is evidenced by the very fact that so much controversy surrounds the question of granting marriage rights to same-sex couples, as well as by the desire of so many lesbians, gay men, and bisexuals to marry a same-sex partner. (In a 2001 Kaiser Family Foundation poll of sexual minority adults, 74% said they would someday like to legally marry someone of the same sex.)
A third reason why civil unions and domestic partnerships aren’t equivalent to marriage is that these separate-but-ostensibly-equal institutions perpetuate and may even compound the stigma historically associated with homosexuality.
Social science research has shown that same-sex committed relationships don’t differ from heterosexual committed relationships in their essential psychological qualities, their capacity for long-term commitment, and the context they provide for rearing healthy and well-adjusted children. Once these facts are acknowledged, the rationale for according same-sex partners a different legal status from heterosexual spouses must ultimately focus on the former’s sexual orientation.
Indeed, sexual orientation is inherently about relationships, whether they are enduring, transient, or merely desired. The intimate personal connections that people form to meet their deeply felt needs for love, family, and intimacy lie at its heart.
Denying same-sex couples the label of marriage — even if they receive all other rights and privileges conferred on spouses — arguably devalues and delegitimizes those relationships. It conveys a judgment by society that committed intimate relationships with people of the same sex are inferior to heterosexual relationships, and that same-sex partners are less deserving of society’s recognition than heterosexual couples. It perpetuates power differentials whereby heterosexuals have greater access than sexual minorities to the many resources and benefits bestowed by the institution of marriage.
These elements — discrediting, denigration, powerlessness — are the crux of stigma.
Sexual stigma has many negative consequences for sexual minorities, including social ostracism, discrimination, and violence. Because of it, lesbians, gay men, and bisexuals often feel compelled to conceal their sexual orientation, which can have negative effects on their psychological and physical health. This concealment also reinforces sexual prejudice among heterosexuals. As I’ve discussed in previous posts, antigay attitudes are significantly less common among heterosexuals with a close friend or family member who is gay or lesbian.
Thus, by denying same-sex couples the right to marry legally, the State compounds and perpetuates the stigma attached to homosexuality. This stigma has negative consequences for all gay, lesbian, and bisexual people, regardless of their relationship status or desire to marry.
I don’t intend to malign civil unions and domestic partnerships, nor do I dispute their value. They represent an important step toward eliminating social inequalities based on sexual orientation and are vastly superior to nonrecognition of same-sex committed relationships. At a purely pragmatic level, more states are likely to enact laws recognizing domestic partnerships or civil unions than to permit marriages between same-sex couples, at least for the foreseeable future. Nevertheless, civil unions and domestic partnerships can’t be equated with marriage.
To summarize these three posts on marriage equality and health, marriage bestows many social and psychological benefits and protections on spouses and their children. As a consequence of being denied the right to marry, same-sex couples are more likely than different-sex couples to experience stress and thus are at greater risk for psychological and physical illness. Although data aren’t yet available to directly measure how the government’s nonrecognition affects same-sex couples, it is reasonable to conclude that being denied the right to marry has negative consequences for their well-being and ultimately creates challenges and obstacles to the success of their relationships that are not faced by heterosexual couples.
Thus, marriage equality isn’t simply a moral issue or a justice issue. It’s also a health issue.
For a more detailed discussion of these and related issues, see my 2006 paper, Legal Recognition of Same-Sex Relationships in the United States: A Social Science Perspective, published in the American Psychologist, vol. 61, pp. 607-621.
Copyright © 2006 by Gregory M. Herek. All rights reserved.
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October 23, 2006
Posted at 5:27 pm (Pacific Time)
In my previous post, I summarized research findings on the health benefits of marriage. The data show that marriage bestows many benefits and protections with important implications for physical and mental health.
What are the health consequences for same-sex couples of being denied the right to marry?
Empirical data aren’t yet available to directly assess how governmental nonrecognition affects same-sex couples. But it is reasonable to conclude that their differential treatment, vis-a-vis married heterosexuals, creates special challenges and obstacles with ultimately negative consequences for their well-being. Without legal recognition, partners in same-sex couples lack both the practical benefits of marriage and the buffers marriage provides against the psychological and social consequences of traumatic events.
For example, their financial situation is likely to be less stable than that of married couples because they don’t enjoy the many economic protections of marriage in areas such as taxation and property rights. Even when gay and lesbian employees don’t fear dismissal or harassment because of their sexual orientation, they nevertheless receive fewer job-related benefits than their married coworkers. Family leave policies, health insurance, and pension plans, for example, typically include an employee’s spouse but not a same-sex partner. And when benefits such as health insurance coverage are extended to a same-sex partner, they are taxed as income; this is typically not the case for benefits to heterosexual spouses.
Because same-sex couples lack the protections that marriage provides when a spouse dies, they must incur the considerable expense of creating legal protections for the surviving partner through wills, trusts, and contracts for joint ownership of property. And these measures don’t always protect the partner. A will can be contested by the decedent’s biological relatives, for example and, unlike a spouse, the surviving partner is likely to incur a substantial tax burden when taking sole legal possession of a home that the couple jointly owned.
The consequences of having one’s intimate relationship unacknowledged by the law are not only financial. For example, a member of a same-sex couple may be excluded from her or his partner’s medical care. She or he may be denied as basic a right as access to the partner in a hospital setting restricted to “immediate family” members, such as an emergency room or intensive care unit. When a member of a same-sex couple dies, her or his surviving partner may experience a similar negation of their relationship. She or he may not even be able to make funeral arrangements.
Such experiences of what is sometimes called disenfranchised grief may compound the considerable psychological distress experienced by the surviving partner, with potentially long-term mental health consequences.
Examples of other areas in which same-sex couples are disadvantaged relative to married couples include immigration (foreign nationals cannot secure residence or citizenship through their relationship with a US citizen of the same sex) and private communication (members of same-sex couples can be called to testify against their partner in legal proceedings).
As a consequence of these and the many other forms of differential treatment to which they are subjected, same-sex couples are exposed to more stress than married couples, especially when they encounter life’s inevitable difficulties and challenges. Because experiencing stress increases one’s likelihood of mental and physical illness, their lack of legal protection places members of same-sex couples at greater risk for health problems compared to married couples.
But is complete marriage equality necessary to alleviate these disparities? Can’t the problems and inequities experienced by same-sex couples be adequately addressed through arrangements such as civil unions and second-parent adoptions?
I’ll address that question in the final post to this series.
For a more detailed discussion of these and related issues, see my 2006 paper, Legal Recognition of Same-Sex Relationships in the United States: A Social Science Perspective, published in the American Psychologist, vol. 61, pp. 607-621.
Copyright © 2006 by Gregory M. Herek. All rights reserved.
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