1. THE RACIAL ANALOGY

Third, same-sex marriage would help civilize America. A civilized polity assures equality for all its citizens. Without full access to the institutions of civic life, gays and lesbians cannot be full participants in the American experience. Gays and lesbians love their country, and have contributed in every way to its flourishing.

In the last fifteen years constitutional issues regarding the rights of gays, lesbians and same-sex couples have emerged on a global scale. The pace of recognition of their fundamental rights, both at judicial and legislative level, has dramatically increased across different jurisdictions, reflecting a growing consensus toward sexual orientation equality. This book considers a wide-range of decisions by constitutional and international courts, from the decriminalization of sexual acts to the recognition of same-sex marriage and parental rights for same-sex couples. It discusses analogies and differences in judicial arguments and rationales in such cases, focusing in particular on human dignity, privacy, liberty, equality and non-discrimination. It argues that courts operate as major exporters of models and principles and that judicial cross-fertilization also helps courts in increasing the acceptability of gays' and lesbians' rights in public opinions and politics. Courts discuss changes in the social perception of marriage and family at national and international levels and at the same time confirm and reinforce them, forging the legal debate over sexual orientation equality. Furthermore, by promoting the political reception of the achievements of foreign gay movements in their own jurisdictions, courts play an essential role in breaking the political stalemate.

This book discusses the context for and arguments in favor of same-sex marriage in the United States.

A compelling and timely vision for gay reparations in the United States In the last two decades many nations have adopted "gay reparations," or policies intended to make amends for a history of discrimination, stigmatization, and violence on the basis of sexual orientation and gender identity. Far from being a homogenous or uniform phenomenon, gay reparations encompass a small constellation of approaches including a formal apology to the LGBT community for past wrongdoing, financial compensation for victims of anti-LGBT laws and actions, and the erection of monuments to the memory of those who suffered because of structural homophobia. The United States, however, has been reluctant to embrace gay reparations, making the country something of an outlier among Western democracies. Beyond making the case for gay reparations in the United States, this book explores a wide range of questions provoked by the rise of the gay reparations movement. Among these questions, three stand out for what they reveal about the puzzling and complex nature of this new front in the struggle for LGBT equality. Why, after centuries of attempts to marginalize, dehumanize, and even eradicate LGBT people, are governments coming around to confront this dark and painful historical legacy? How do we make sense of the diversity of gay reparations being implemented by governments around the world? And, finally, what would an American policy of gay reparations look like? Omar G. Encarnación draws upon the rich history of reparations to confront the legacies of genocide, slavery, and political repression and argue that gay reparations are a moral obligation intended to restore dignity to those whose human rights have been violated because of their sexual orientation and gender identity. Reparations are also necessary to close painful chapters of anti-LGBT discrimination and violence and to remind future generations of past struggles for LGBT equality. To this end, he traces America's dark and painful LGBT history--from colonial-era laws criminalizing homosexual conduct, to a postwar ban on homosexuals working in the federal bureaucracy, to the government's support of the junk-science underpinning the practice of "gay conversion" therapy promoted by the Christian Right. The book also examines how other Western democracies notorious for their repression of homosexuals--specifically Spain, Britain, and Germany--have implemented gay reparations. These foreign experiences reveal potential pathways for gay reparations in the United States. More importantly, they show that while there is no universal approach to gay reparations it is never too late for countries to seek to right past wrongs.

Richard D. Mohr adopts a humanistic and philosophical approach to assessing public policy issues affecting homosexuals. His nuanced case for legal and social acceptance applies widely held ethical principles to various issues, including same-sex marriage, AIDS, and gays in the military. Mohr examines the nature of prejudices and other cultural forces that work against lesbian and gay causes and considers the role that sexuality plays in national rituals. In his support of same-sex marriage, Mohr defines matrimony as the development and maintenance of intimacy through which people meet their basic needs and carry out their everyday living, and he contends that this definition applies equally to homosexual and heterosexual couples. By drawing on culturally, legally, and ethically based arguments, Mohr moves away from tired political rhetoric and reveals the important ways in which the struggle for gay rights and acceptance relates to mainstream American society, history, and political life.

Part of the Queer Ideas series, edited by Michael Bronski QUEER IDEAS-a new series of LGBT hardcovers that address important intellectual questions facing the movement. The debate over marriage equality for same-sex couples rages across the country. Beyond (Straight and Gay) Marriage boldly moves the discussion forward by focusing on the larger, more fundamental issue of marriage and the law. The root problem, asserts law professor and LGBT rights activist Nancy Polikoff, is that marriage is a bright dividing line between those relationships that legally matter and those that don't. A woman married to a man for nine months is entitled to Social Security survivor's benefits when he dies; a woman living for nineteen years with a man or woman to whom she is not married receives nothing. Polikoff reframes the debate by arguing that all family relationships and households need the economic stability and emotional peace of mind that now extend only to married couples. Unmarried couples of any sexual orientation, single-parent households, extended family units, and myriad other familial configurations need recognition and protection to meet the concerns they all share: building and sustaining economic and emotional interdependence, and nurturing the next generation. Couples should have the choice to marry based on the spiritual, cultural, or religious meaning of marriage in their lives, asserts Polikoff. While marriage equality for same-sex couples is a civil rights victory, she contends that no one should have to marry in order to reap specific and unique legal results. A persuasive argument that married couples should not receive special rights denied to other families, Polikoff shows how the law can value all families, and why it must. "A much-needed intervention in the contemporary debate about marriage and family. Polikoff's argument is provocative, illuminating, and original." -John D'Emilio, author of Lost Prophet: The Life and Times of Bayard Rustin "Polikoff mobilizes an impressive array of legal history and contemporary court cases to show how marriage, whether same-sex or heterosexual, has ceased to be the only place where people incur long-term obligations. She argues vigorously that our society needs to find new ways of determining when legally-enforceable responsibilities and entitlements have accrued in interpersonal relationships." -Stephanie Coontz, author, Marriage, A History: How Love Conquered Marriage "This book really matters. It is brilliant and thoughtful, not simply about a set of laws, but as a manifesto to transform the way we understand, recognize and respect the reality of our diverse and complex family compositions. Polikoff grounds her arguments in the 35 year history of social change activism in this country to construct a passionate and nuanced argument for expanding our same sex marriage activism to include all of the ways people love, form families and build community." -Amber Hollibaugh, Senior Strategist, National Gay and Lesbian Task Force, and author of My Dangerous Desires: A Queer Girl Dreaming her Way Home "Passionate but completely grounded in reality, Polikoff challenges LGBT rights advocates to see beyond gay equality arguments and question the fundamental fairness of limiting family recognition based on marriage, gay or straight. It is a powerful call for social justice." -Nan D. Hunter, founder of the American Civil Liberties Union Lesbian Gay Bisexual Transgender Project and Professor of Law, Brooklyn Law School "A provocative and perspicuous intervention in one of the most devilish recent debates in U.S. law and politicshellip;In a principled yet pragmatic analysis, Polikoff mounts a compelling case against the continued grip of 'conjugalism'on our family law and policy. Beyond (Straight and Gay) Marriage challenges us