Committed Relationships and Public Policy

The formation of a loving, committed relationship is a goal of the vast majority of adult citizens. While we will not reiterate a history of civil marriage, the U.S. Supreme Court has confirmed its importance in modern American society. In writing the majority opinion in Loving v. Virginia [388 US 1 (1967)] striking down laws prohibiting interracial marriages, Chief Justice Earl Warren wrote, “The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men…. Marriage is one of the ‘basic civil rights of man,’ fundamental to our very existence and survival.”

The opportunity to express love for another adult person and to form a chosen committed relationship is fundamental to the health and well-being of an individual and to the expression of full citizenship. Policies regarding civil marriage have recognized this as an important function of government—to recognize and support the chosen adult committed relationships of its citizens. However, policies recognizing civil marriage have not treated all chosen adult committed relationships as equal. In its role as gatekeeper to civil marriage (by definition), the government actively discriminates against classes of citizens, specifically creating a privileged class (heterosexual couples who are eligible for the rights that accompany marriage) and an un-privileged class (same-sex couples who are ineligible for the rights that accompany marriage).

The issue of civil marriage for same-sex couples is rooted in both civil liberties and civil rights (see Strand 1998 for a discussion of support for civil liberties and civil rights for gays and lesbians). Current civil marriage laws in the U.S. infringe upon an individual's freedom of expression, specifically the liberty or freedom to choose a spouse, by limiting choices to persons of the other sex. Current civil marriage laws also infringe upon the equality of citizens (i.e., their civil rights), by treating similarly situated citizens differently.

The federal Defense of Marriage Act (DOMA) explicitly denies federal government recognition of any civil marriages for same-sex couples independent of the various states' decisions to recognize or not recognize civil marriages of same-sex couples. To this end, DOMA establishes a baseline of discrimination against gays, lesbians, and same-sex partnered individuals across the entire country. Even when a particular state chooses to recognize civil marriage for same-sex couples and to extend all the rights, privileges, and responsibilities associated with civil marriage within that state, the U.S. government will not extend federal level rights, privileges, and responsibilities to same-sex couples, including, for example, spousal Social Security and tax benefits. Hence, married same-sex couples that live in Massachusetts still experience discrimination since their marriages are not recognized by the federal government or by other state governments.

Public Debate and Majority Tyranny

The public debate over civil marriage for same-sex couples has largely taken place in the context of proposed federal and state laws and constitutional amendments. The vast majority of these proposals have the effect of institutionalizing the status of civil marriage as only recognizing the contract between “one man and one woman.” Following the procedures for amending state constitutions has brought such actions to voters in 17 states to date (plus one referendum on a state statute). The corresponding public debate has placed the right of same-sex couples to marry within the public arena for popular debate. These recent elections and accompanying debates have exacerbated the problem of stigmatization for same-sex couples.

The civil rights of minorities in the United States are routinely voted upon by representatives, adjudicated by the judiciary, and have been placed on ballots for public votes. Seventy-five percent of these ballot measures have resulted in a vote of non-support for the civil rights of minority groups (Gamble 1997). Barbara S. Gamble (1997) collected information about civil rights initiatives appearing on state and local ballots between 1959 and 1993. Of the 74 measures she cataloged, 43 pertained to the rights of gays and lesbians (between 1977 and 1993). Thirty-four of the 43 measures passed and 30 had what she termed “tyrannical outcomes,” where “the majority voted to repeal existing civil rights legislation, pass new restrictive laws, or prohibit the passage of new legislative protections” (Gamble 1997, 254).

Donovan, Wenzel, and Bowler (2000) found that direct citizen initiatives have been successfully used by opponents of gay and lesbian rights to reverse recent governmental actions (by a court, legislature, or executive). They also note, based on their previous research (Wenzel, Donovan, and Bowler 1998), the importance of elite opinion in influencing voters' opinions on gays and lesbians. These findings included a significant negative effect of Republican party leaders on Republican party voters (who became less tolerant), especially in states with anti-gay initiatives on the ballot.

Tyrannical outcomes have continued in the most recent election cycle for gays, lesbians, and same-sex couples. Thirteen marriage-related state constitutional amendments were placed on the ballots by majority groups in 2004 (Arkansas, Georgia, Kentucky, Louisiana, Michigan, Mississippi, Missouri, Montana, North Dakota, Ohio, Oklahoma, Oregon, and Utah). All of the amendments restrict recognition of civil marriage by the state to “one man and one woman” (and some go much further by forbidding any legal recognition of same-sex relationships). All passed, by an average of 71% of the vote. They joined the four previously passed state constitutional amendments (Alaska, Hawaii, Nebraska, and Nevada) and one state statute passed by referendum (California). These public referenda have legitimized injustice and institutionalized prejudice through majority tyranny (see The Federalist Papers, Hamilton, Madison, and Jay 1961).

The public debate over civil marriage for same-sex couples appears in newspapers and newsmagazines, on television and talk radio, and in other popular media sources. The public debate is typically a standoff between two entrenched sides: one side demanding the right to marry for same-sex couples, and the other opposing marriage for same-sex couples and demanding legislation specifically forbidding recognition. Opponents of the recognition of civil marriage for same-sex couples often rely on negative stereotypes and fundamentalist religious dogma in their appeals (e.g., Gordon, Tadlock, and Popp 2004; cf. McCorkle and Most 1997; Witt and McCorkle 1997; Russell 2000). Among other characterizations, the negative attributions include labeling homosexuality as “immoral and perverse,” and portraying gays and lesbians as a threat to children and families (Wiethoff 2002).

This framework for public debate places those who are already stigmatized in a position of defending themselves against further cultural devaluation and degradation. Proponents are effectively forced to counter negative attributions, and even while making a positive case they often must repeat the opponents' negative characterizations. Those who support the rights of the stigmatized minority risk being stigmatized by association and publicly scrutinized in relation to their privileged status. These two outcomes of the public debate increase private and public stress, consequently diminishing the civility of the society that engages in this type of discourse (e.g., Whillock and Slayden 1995; Ray 1996).

Although extreme rhetoric and “name-calling” has originated on both sides of the debate, the psychological consequences for privileged citizens are different than the consequences for minority citizens. A privileged citizen retains state and societal support and approval. Minority citizens are subjected to intense scrutiny and must prove their good citizenship and even their humanity (see Crocker 1999).

The public debate surrounding these amendments and legislative action creates divisions in the larger society, in communities, and in families (Russell 2004). Russell argues “[when] a particular group is the subject of political debate, group members often exhibit a variety of negative outcomes including anxiety, depression, alienation, fear, and anger” (2004). Within the context of majority tyranny, supporters of the minority become fearful and silenced. Self-identified minority citizens become alienated from the political process and their communities. And citizens experience dissonance as they disagree with neighbors and family members (Russell and Richards 2003). In short, the well-being and social integrity of all citizens is compromised.

Minority Stress

Minority stress for members of same-sex couples is associated with their self-identification as a same-sex loving person and to their public identification as a “homosexual,” “gay,” “lesbian,” or “bisexual” individual. Minority stress for gays, lesbians, and members of same-sex couples, is a chronic psychological strain resulting from experiences and expectations of prejudice, decisions about disclosure of sexual identity, and the internalization of homophobia or homonegativity (Meyer 2003). Chronic stress in the form of minority stress is a contributing factor to mental and physical health challenges and problems. Chronic stress presents itself most identifiably through elevated rates of anxiety, depression, substance abuse, and eating disorders. Self-identified gay men, lesbians, and bisexuals are at risk for these and other risk behaviors and negative health outcomes (Meyer 2003; Cochran 2001).

The external factors influencing minority stress are associated with experiences with prejudice and discrimination. Experiences with discrimination, especially experiences with hate speech and hate crimes, contribute to long-term stress and negative health. In a sample of self-identified lesbians and gay men (Herek, Gillis, and Cogan 1999), 20% of lesbians and 25% of gay men reported life-time incidents of criminal victimization related to their sexual identity. Additionally, 56% of respondents in the sample reported verbal harassment related to their sexual identity in the past year alone. These incidents have a negative impact on long-term psychological health and physical well-being (Herek, Gillis, and Cogan 1999; Cochran 2001; Meyer 2003).

All same-sex partnered individuals experience explicit discrimination via government policy, e.g., eligibility to enter into civil marriage, eligibility of a partner's children for Social Security survivor benefits, or the taxation of domestic partner benefits. Most experience additional discrimination via private policies, e.g., employer policies on health care benefits for partners or eligibility for “family” memberships and discounts. The direct experiences of discrimination by an individual, combined with the experiences of other similarly situated individuals (whether friends, acquaintances, or persons in the news), creates an expectation of future discrimination and prejudice. These experiences and expectations lead to a constant or near-constant awareness of the vulnerability of a same-sex relationship due to factors beyond the control of the individual (Kuehlwein and Gottschalk 2000).

Discrimination in civil marriage rights exacerbates the negative effects of chronic minority stress. The protections offered by civil marriage help to provide security and support for the continuation of long-term relationships, especially during crisis periods. Lacking access to the securities and support of civil marriage, same-sex couples are vulnerable to the negation of their relationship by governmental and non-governmental institutions (e.g., a hospital may not recognize the relationship of same-sex partners and refuse access by one partner to another during a medical emergency; Riggle and Rostosky 2005). This lack of institutional support and recognition, along with possible familial rejections (Dudley et al. 2005), increases couples' vulnerability to relational stress and individual stressors that affect relational health (Otis, Riggle, Rostosky, and Hamrin forthcoming; Kuehlwein and Gottschalk 2000).

Civil marriage for same-sex couples is necessary, though not sufficient, to alleviate the stigmatization associated with gay, lesbian, or same-sex partnered identity. Just as the end of laws forbidding interracial marriages (with Loving v. Virginia in 1967) did not end the stigmatization of those marriages based on racial prejudice, changes in marriage policy today will not end stigmatization and prejudice based on sexual identity. However, the Supreme Court, on behalf of the federal government, did send an important message to governments and citizens that “classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment [surely] deprive all the State's citizens of liberty without due process of law” [Loving et ux v. Virginia 388 U.S. 1 (1967)]. By declaring such, the principle of equality was upheld and applied, making public prejudice unacceptable and even private prejudice less acceptable.