The Unchanged Reality of Same-Sex Marriage Before Legalization in the United States
Many people believe that before same-sex marriage was legalized in the United States, there was a complete ban on same-sex unions. However, the reality is more complex and nuanced. Same-sex marriage did not need to be 'legalized' as it was already not illegal; it simply wasn't recognized under the law. This article explores what would have happened if same-sex couples attempted to marry before the legalization of same-sex marriage in the United States.
Legal Recognition vs. Legalization
It is a common misconception that before the legalization of same-sex marriage, same-sex couples were entirely prohibited from getting married. In reality, same-sex marriage did not need to be 'legalized' because it was not illegal in the strict sense. The issue was not one of legality, but rather of recognition and legal standing.
Same-sex couples could have all the necessary ceremonies and legal documents in place, but these would not hold legal weight. Any challenge by a blood relative could easily invalidate these documents. Moreover, it is worth noting that the police would not have arrested anyone at the wedding ceremony. Legal recognition of same-sex marriage was not something that needed to be 'legalized'; it was simply not recognized in the legal systems of many states and the federal government.
What Actually Happened: Marriage Licenses and Legal Recognition
Same-sex couples could apply for marriage licenses, but these applications would be ignored and their marriage would not be recognized by any legal authority. Essentially, there was no legal standing for these unions. The term "legalization" of same-sex marriage often implies that it was previously illegal, which is not accurate. Same-sex marriage was never unlawful, but it simply needed recognition under the law.
Legal Workarounds and Partnership
However, there were legal ways same-sex couples could address this issue without needing the approval or recognition of the government. For example, two people could form a partnership where they are co-owners of real property, each other's wills could pass on personal belongings to their partners, they could have medical directives and living trusts naming one another as power of attorney and guardians of estates, and they could share bank accounts. In many ways, such arrangements would be just as legally binding as any state-sanctioned marriage, as they would ensure mutual rights and benefits.
Decriminalization and Equal Protection
When homosexuality was decriminalized, it marked a significant legal milestone. Same-sex couples then fell under the Equal Protection Clause of the 14th Amendment, which is often cited as the basis for legal recognition of same-sex marriage. However, it was not just the decriminalization of homosexuality that led to legal recognition but the broader application of equal protection principles.
Despite aligning with the ruling, I personally believe that the government should not be in the business of marrying people. Whether they are of the same sex or opposite sex, marriage should be a matter between consenting adults and their chosen partners, rather than a government function.
Conclusion
In conclusion, the labeling of same-sex marriage as 'legalized' is a misnomer in many states and for a long time. It was always legal to marry a person of the same sex, it just wasn't recognized. The legal recognition of same-sex marriage is a significant step forward in the strive for equal rights, but it does not change the fundamental nature of marriage itself.