Without further ado:
Any set of laws that arbitrarily discriminates against certain types of people is an unjust set of laws. It will be the position of this paper that a set of laws that recognizes heterosexual marriage but fails to grant the opportunity for a similar status to homosexual couples is a discriminatory and thus unjust set of laws. This paper will draw upon arguments and evidence presented in Stephen Macedo's Georgetown Law Journal article Homosexuality and the Conservative Mind, (1995) and arguments of my own devising. I will not try to argue for the veracity of the first statement of this paper. It is beyond the scope of what I am trying to prove to provide evidence as to why it is unjust to systematically discriminate against any group of people except when such discrimination is rendered necessary due to a trait of those people (for example it is not unjust to prevent blind people from driving or to restrict the rights of children) and serves to protect or enhance something of value. I will also not argue against the religious point of view that marriage is a sacrament, not a right because I believe that this is no longer the case in any meaningful way. Finally I will not deal with theories that marriage is a "bad" institution that should be abolished since if one takes this view justice does not require that you deal with homosexual marriage equivalents separately. Instead I will show that discrimination against homosexuals in matters pertaining to domestic partnership is indeed arbitrary and serves to protect or enhance nothing of value.
The first step towards figuring out whether homosexuals should be allowed to marry (or the equivalent) is to define marriage itself. Marriage is the legal binding of two willing people into a contract of cohabitation, shared resources and responsibility, and ritual expression of attachment. Cohabitation and ritual expression of attachment do not require legal acceptance so they can be put aside for the purposes of this argument. If these were the only two benefits that marriage provided to its participants it would not require legal status at all. The important aspects (for this paper) are the shared resources and responsibilities, and the regulation of sexual behavior.
One of the primary goals of marriage in our society is to regulate sexuality. A question that we must ask then, is what is the purpose of sexual interaction within the context of marriage? If it is merely the propagation of the species then it is clear that heterosexual sex is the only appropriate kind. This, however, is not true. Heterosexual couples spend millions of dollars a year to avoid producing children by their sexual behavior. Some even undergo major surgery to avoid pregnancy or eliminate it after it has occurred. Clearly then heterosexual activity within the context of marriage is not intended only for the purposes of procreation, and unless we make intention to procreate a prerequisite for marriage it cannot be considered a necessary goal for sexual relations within the context of marriage. Instead I submit that pleasure and intimacy are valid goals of sex within the context of marriage. This is important because, obviously, homosexual couples can not create children through sexual relations with one another and thus if children were the only point of marital sex, homosexual relations could not be valid marital relations. If, however, important goals of marital sex can be pleasure and intimacy, it is fair to say that homosexuals are capable of engaging in behaviors equivalent to those that take place within a heterosexual marriage.
Now that we have established that homosexual behaviors can be the equivalent of heterosexual ones, we must ask whether homosexual behavior and drives are any more voluntary than heterosexual behaviors or drives. If homosexuals could simply cease being homosexuals by an act of will then they would not constitute a distinct group of people, and thus laws preventing their domestic union would not necessarily be unjust by the standards I have set forth above. Homosexuality was long considered a psychological disorder similar to depression or obsessive-compulsive disorder. This is no longer the case. Sexuality is now thought to be a trait resulting from genetic and environmental factors, much like height and intelligence are. Homosexuals do not have a choice, in any meaningful sense of the word, of which gender they are attracted to. Furthermore "Homosexual conduct is not...harmful or wrong in itself."(Macedo, 295) This differentiates them from groups like polygamists whose different domestic practices are based purely on beliefs with no "natural" or genetic component. Homosexuality is fundamentally different from many other types of non-traditional sexual behavior. Stephen Macedo points out that "just why homosexuality, incest, and polygamy are all lumped together…is unclear. (Macedo, 288)" While one might argue that sexual urges like incest or pedophilia are just as uncontrollable as homosexuality banning them serves the purpose of protecting children who are incapable of making mature sexual decisions. They have no bearing on consensual homosexual activity between two adults. By establishing that homosexuality is not a choice we take another step towards establishing its parity with heterosexuality.
The answers to the questions we have posed so far are that homosexual behavior can function as the equivalent of heterosexual marital behavior and that homosexual sex is not a separate class of behavior from the heterosexual version but rather an irreplaceable equivalent for a certain portion of the population. A possible counterargument to what we have said is that the regulation of heterosexual sex is necessary because of the risk of children, not the intention. In other words that because heterosexual relationships can produce children, purposefully or not, marriage should be unique to heterosexuals because it allows them to have a structure in place which lends itself to the healthy rearing of children that might result from their sexual relationships. This argument, however, is flawed because even the possibility of the production of offspring is neither necessary nor sufficient cause for heterosexual marriage. If we were to make marriage unique to heterosexuals on these grounds we would also have to deny marriage to the sterile or elderly, which might be just but is not desirable. As Macedo says, "Once we focus on the importance of integrating sexual activity into a larger pattern of attainable goods, sterile married couples and devoted, loving, committed homosexual partners seem to fall into the same camp." (Macedo 279)
Another important aspect of marriage is that when people get married they often merge their finances, but even if they don't they still have legal claim on one another's resources. Married partners are granted access to benefits from their spouse's job, receive social security checks if their spouse passes away, and can expect financial support from an ex-spouse even after they dissolve the union. Likewise married partners have legal responsibilities for one another when dealing with issues like medical conditions and the possibility of psychiatric commitment. These issues are relevant for everyone, including homosexuals. There is nothing inherent in homosexuals that should keep them from having the same rights and protections that heterosexuals enjoy in these matters. Homosexuals are just as capable and desirous of love and commitment. Indeed because homosexuals are often treated as having less of a claim on their partners than their heterosexual counterparts it is even more important that they be given full legal standing. Failing to allow homosexuals to transmit the rights and privileges of marriage to their partners opens up opportunities for a family that is angry with one of their homosexual members to take revenge upon that member when s/he is ill or deceased by refusing to adhere to their wishes. A homosexual marriage equivalent would do much to protect against this.
Recognizing the union between heterosexual couples while failing to do so for homosexuals is clearly unjust. There are no differences between heterosexual and homosexual couples sufficient to justify the practice of offering the right to the one group and not the other. It is arbitrary. Stephen Macedo points out that "the justifiable point of conferring social benefits on marriage...is to encourage people to lead better lives than they otherwise would have." And asks, "Why not try to make the lot of homosexuals as good and noble as it can be?" (Macedo 290) Why indeed. Homosexuals are not responsible for their preferences, stand to derive the same benefits and advantages from marriage or the equivalent that heterosexuals derive, and are capable of the same types of connections as heterosexual couples are. "Extending marriage to gay and lesbian couples would broaden, but not necessarily dilute, society's support for marriage and long-term interpersonal commitment" (Macedo 289) and so restricting them from doing so does not protect anything of value. Restricting them from marriage does, however, prevent them from receiving the benefits, both material and not, that it provides and thus failing to provide a marriage equivalent for them damages them purely on the basis of a single, uncontrollable trait: sexuality. This is unjust. Justice does not demand that the option they be given be identical to marriage in every way, but failing to provide a reasonable equivalent is discriminatory and wrong. Once upon a time interracial marriages were illegal, but those laws were deemed unjust and antiquated and therefore were dissolved. It's time to do the same with the passive process of denying homosexuals the right to a marriage equivalent.
This is an excellent essay.
Notice several elements of this paper that begin to appear in paragraph 1. The second sentence offers a clear statement of the thesis of the essay, and the writer never loses sight of that thesis from the beginning of the essay to the end. In fact, every sentence in the paper contributes in some way to the argument. The rest of the paragraph identifies some of the writer's key premises and explains the scope of the paper, largely by identifying questions the writer will not address. So the reader knows what the writer's assumptions are and knows what to expect from the paper, as well as what not to expect. The writer wisely places some topics out of bounds by identifying them as beyond the scope of this paper.
The second paragraph identifies what, in the writer's view, the key elements of marriage are, at least for the purpose of this argument, and offers a plausible reason for leaving some other elements-cohabitation and ritual expression of attachment-to one side.
Paragraphs 3-5 discuss one of the two key elements of marriage, namely, the regulation of sexuality. The writer produces arguments to support the conclusion that homosexuality does not differ in kind from heterosexuality, at least not in a way that would justify confining the benefits of marriage or marriage-like, legally recognized partnerships to homosexuals.
Paragraph 6 discusses the other major element of marriage, the sharing of resources and responsibilities. Again, the author argues that there is no good reason to deny the benefits of a partnership in which these matters are shared to homosexuals, if they are allowed to heterosexuals.
Paragraph 7 summarizes the writer's case and, near the end, offers an analogy with interracial marriage to strengthen that case
This paper is not flawless. One could disagree with some of the writer's judgments. For example, some people might argue that legal recognition is essential for, or at least important to, the ritual expression of attachment that is sometimes believed to be an important aspect of marriage (para. 2). Although the writing is very clear, it would benefit from a few more well-placed commas, and a few sentences could be improved by rewriting. Overall, however, the argument is clear, the assumptions and judgments are reasonable, and the argument is developed in a rigorous, logical way.