Same-Sex Marriage: Substance vs. Symbols


Last year I gave a presentation about same-sex marriage for one of my college classes. A few months later something amazing happened. The Federal Government finally came to its senses and changed a few laws to be more favorable to LGBT couples. However, as you will see below, we still have a long way to go on the road to equality.

On June 26, 2013, the U.S. Supreme Court issued its decision in United States v. Windsor and struck down the section of the DOMA policy (federal Defense of Marriage Act) that defined marriage as a “union between a man and a woman.”

What does this mean? It means the legal definition of marriage is no longer only applies to the marriage of a man and a woman. How fucking cool is that?

What doesn’t the outcome of this case mean, you ask? It means that the Federal rights only apply in the few states that recognize same-sex marriages and civil unions. We will discuss the distinction between marriage and civil unions later, but first I would like to talk about what Windsor has done LGBT couples.

Benefits LGBT Couples Receive Since United States v. Windsor

  • Social Security Benefits
  • Spousal survivor benefit
  • Spousal retirement benefit, and
  • Lump-sum death benefit
  • Tax Benefits
  • Filing joint income tax returns with the IRS
  • Creating a “family partnership”
  • Estate Tax and Estate Planning Benefits
  • Estate and gift tax exemption
  • State Tax “Portability”
  • Life estate trusts, and
  • Veteran and Military Benefits
  • Health insurance for spouses
  • Wages, worker’s compensation, health insurance, and retirement plan benefits for the surviving spouse of a deceased federal worker, and
  • Immigration Benefits

Detailed information on the above is available on the Nolo website.

Substance Not Symbols

A few years ago I heard a phrase that has really defined for me the issue of same-sex marriage.

Substance, not symbols.

LGBT couples have won one of many battles, but not the war. Heterosexual couples still receive, without question, thousands of legal rights and protections at both State and Federal levels. These legal rights and protections are substance, not symbols.

What Is Equality?

Should the federal government of the United States (U.S.) only guarantee your definition of equality, or should it guarantee the equal rights every human being?

Here is a quote that I hope you all know:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.

In 1776 that line was included in U.S. Declaration of Independence.

Keeping that in mind, I would like you to read another quote:

It takes no compromise to give people their rights…it takes no money to respect the individual. It takes no political deal to give people freedom. It takes no survey to remove repression.

This quote is by Harvey Milk who in 1977 became the first openly gay candidate elected to political office in California after winning a seat on the San Francisco Board of Supervisors. He successfully campaigned to defeat Proposition 6, a bill that would have made it legal to fire any openly or known gay or lesbian teacher in the California Public School system (emphasis mine). In 1978, Dan White, a former member of the Board, assassinated Milk, along with the mayor of San Francisco, George Moscone.

Out of this highly publicized tragedy, thousands of formally “closeted” men and women came forward to show their support for Milk, and continued to campaign for equality. Milk was posthumously awarded the Presidential Medal of Freedom in 2009.

The quest for equality in the LGBT community has been an ongoing struggle in the U.S., a country proud of its freedom for all people.

A Brief History Lesson

In the 1950s, Senator Joseph McCarthy used his political power and influence to incite fear and paranoia in Americans about homosexuality. McCarthy forced hundreds of government workers to resign or be fired under the threat of revealing to the public their sexual affiliation (emphasis mine). He claimed that homosexuals were a national security risk, and that they would trade U.S. national secrets to the Communists to keep their own sexuality hidden. He always had an offbeat sense of humor, the li’l stinker.

In the 1970s, Anita Bryant, a well-known pop singer and former beauty queen, came forward as a face for oppose homosexuality. She led the “Save Our Children” campaign, citing her belief in Christianity as the reasoning behind calling homosexuals “child molesters” and even blaming them for the drought that was going on at the time in California (emphasis mine). Such a nice woman, I bet she was fun to get drunk with.

HIV/AIDS and Pop Culture

Amidst the hate and in spite of the opponents, the first National March on Washington for Lesbian and Gay Rights took place in Washington, DC in 1979.

In 1981, the AIDS Epidemic slowly gained recognition throughout America. In our pop culture obsessed society, it is no surprise that the average American did not really believe AIDS could affect them until celebrities began dying from complications from the AIDS virus.

ImageAbove is a photo of actor Rock Hudson, the very definition of a “man’s man”. He died in 1985 from AIDS-related complications. His sexual preference was one of many similar Hollywood best-kept secrets, however, after his death an article published in the widely circulated magazine “People“, millions of his fans became aware of his homosexuality, and how AIDS ended his life. Many of those closest to him publicly showed their support for Rock Hudson, in life and after his death.

ImageIn 1991, Earvin “Magic” Johnson  (pictured above), a world-famous NBA basketball player, publicly announced his HIV positive status, shocking the world of sports, and his fans. Magic Johnson used his influence to help combat the stigmas associated with HIV and AIDS, namely, that only drug-users and homosexuals could contract the disease. He founded the Magic Johnson Foundation which provides services to people by providing education about these diseases, free HIV/AIDS testing, grant funding, and scholarship programs. Magic Johnson receives daily treatments for his HIV, these treatments are vital in keeping him strong and healthy. To date, these treatments have kept his HIV infection from becoming full-fledged AIDS.

ImageAlso in 1991, Freddie Mercury (pictured above), lead singer of Queen, say for all to hear to confirm rumors the press had made about his obvious health decline. He released the following statement:

Following the enormous conjecture in the press over the last two weeks, I wish to confirm that I have been tested HIV positive and have AIDS. I felt it correct to keep this information private to date to protect the privacy of those around me. However, the time has come now for my friends and fans around the world to know the truth and I hope that everyone will join with me, my doctors, and all those worldwide in the fight against this terrible disease. My privacy has always been very special to me and I am famous for my lack of interviews. Please understand this policy will continue.

Approximately 24 hours after this statement was release, Freddie Mercury passed away due to complications from AIDS.

When the American public began to see AIDS affecting well-known public figures, they began to realize that AIDS was not a punishment for homosexual behavior, but instead AIDS is a virus that can infect anyone without bias. This shift in thinking helped push forward research to find treatment for the disease.

In 1988, The Centers for Disease Control made history by mailing the pamphlet, “Understanding AIDS,” to every home in America.  That same year The First Annual Coming Out Day was celebrated on October 11, an event that is celebrated to this day, not only in the U.S., but in nine other countries as well.

LGBT in the U.S. Military

In spite of some major achievements, one major setback in the fight for equality for LGBT citizens in the U.S. occurred in 1993, when the “Don’t Ask, Don’t Tell” (DADT) policy was instituted for the U.S. military, forbidding “out” homosexuals to serve in the military. Here is a happy little excerpt for those of you unfamiliar with this policy (emphasis mine):

(13) The prohibition against homosexual conduct is a longstanding element of military law that continues to be necessary in the unique circumstances of military service. (14) The armed forces must keep up personnel policies that exclude persons whose presence in the armed forces would create an unacceptable risk to the armed forces’ high standards of morale, good order and discipline, and unit cohesion that are the essence of military capability. (15) The presence in the armed forces of persons who demonstrate a propensity or intent to engage in homosexual acts would create an unacceptable risk to the high standards of morale, good order and discipline, and unit cohesion that are the essence of military capability. (emphasis mine)

DADT policy made it impossible for homosexuals to serve in the military unless they kept their sexuality completely hidden from their peers and superiors. Although DADT technically allowed homosexuals to serve in the military, records show that the military discharged over 13,000 troops from the military, citing DADT as the specific reason. The DADT policy outlined in no uncertain terms what constitutes cause for discharge:

(b) Policy. – A member of the armed forces shall be separated from the armed forces under regulations prescribed by the Secretary of Defense if one or more of the following findings is made and approved in accordance with procedures set forth in such regulations: (1) That the member has engaged in, attempted to engage in, or solicited another to engage in a homosexual act or acts unless there are further findings, made and approved in accordance with procedures set forth in such regulations, that the member has demonstrated that – (A) such conduct is a departure from the member’s usual and customary behavior; (B) such conduct, under all the circumstances, is unlikely to recur; (C) such conduct was not accomplished by use of force, coercion, or intimidation; (D) under the particular circumstances of the case, the member’s continued presence in the armed forces is consistent with the interests of the armed forces in proper discipline, good order, and morale; and (E) the member does not have a propensity or intent to engage in homosexual acts. (2) That the member has stated that he or she is a homosexual or bisexual, or words to that effect, unless there is a further finding, made and approved in accordance with procedures set forth in the regulations, that the member has demonstrated that he or she is not a person who engages in, attempts to engage in, has a propensity to engage in, or intends to engage in homosexual acts. (3) That the member has married or attempted to marry a person known to be of the same biological sex.

If anyone can tell me how they survived being LGBT in the military during DADT I would love to hear your story (seriously). Fortunately, in 2011, we as a nation decided to overturn this ridiculous policy. Shockingly enough, the world did not end and the military did not implode as a result.


Marriage Before United States v. Windsor: Federal and State Rights and Protections

It is estimated that there are at least 1,138 benefits, rights and protections now provided based on marital status in Federal law. A few of these are:

  • “Marriage” defined as a union between a man and a woman
  • Social Security Benefits
  • Survivor Benefits
  • Joint parenting/adoption
  • Status as next-of-kin for hospital visits and medical decisions
  • Inheritance of jointly owned real estate
  • Portability

Now let’s take a look at those same rights as applied to Civil Unions:

  • No Federal benefits
  • Joint parenting/adoption – States that allow same-sex marriage may allow couples to co-parent, which includes legal rights to treat and care for a child. However, even this “right” is still a gray area in many of these states, and there are many examples of same-sex couples barred from making decisions about legal or medical issues with regards to a child.
  • Status as next-of-kin for hospital visits and medical decisions – same-sex couples are encouraged to legally adopt the child of their partner and carry the required papers to prove to hospital staff that they are indeed legal parents. Even still, many are barred entry to hospital rooms on the basis of not being considered immediate family members.
  • Inheritance of jointly owned real estate – same-sex couples have been disinherited by the biological families of the deceased on the basis of the invalidity of the relationship.
  • Portability – civil unions are only recognized in eight states. They are not considered valid in the other 42 states.

Where Are We Now?

Oooooooh lookit graphs and charts:



Now What?

Here are some excellent resources from Freedom to Marry about how you can take action:

Help build a Majority for Marriage: Sign your name to the Freedom to Marry pledge supporting marriage rights for all Americans.


Freedom to Marry. Take Action. n.d. 1 10 2013. <;.

Gay & Lesbian Advocates & Defenders. “Civil Marriage v. Civil Unions.” 1 2013. <‎>.

Human Rights Campaign: Fact Sheet. “AFTER DOMA: What It Means For You.” n.d. 27 9 2013. <;.

Obama, President Barack. “Statement by the President on the Repeal of Don’t Ask, Don’t Tell.” 20 9 2011. Human Rights Campaign. <;. “Timeline of Same-Sex Marriage Bans and Legalizations by Effective Date of Laws.” n.d. Gay Marriage. 29 9 2013. <;.

Reeve, Elspeth and Bump, Philip. A Map Showing the Country’s Sudden Move Towards Marriage Equality. 11 4 2013. <;.

Sears, James. “LGBT Timeline (from the 60’s to the 90’s) .” n.d. James Madison University. 27 9 2013. <;.

The Defense of Marriage Act. No. 28 USC § 1738C; 1 USC § 7. 104th United States Congress. 21 9 1996.

We Are California. You Gotta Give Them Hope! n.d. 1 10 2013.

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