1 Marriage and the State Lesson Plan Student Objectives Understand the role of the state in regulating the institution of marriage and the rights and responsibilities of married people. Learn about the ancient roots of the institution of marriage and how marriage is understood in different religious traditions. Explore the tensions between social customs and institutions and democratic decisionmaking. Analyze the reasons for supporting and opposing the legalization of same-sex (gay and lesbian) marriage. Identify areas of agreement and disagreement with other students. Decide, individually and as a group, whether our democracy should permit same-sex couples to marry just as heterosexual couples are allowed to do. Reflect on the value of deliberation when deciding issues in a democracy. Question for Deliberation Should our democracy permit same-sex couples (gay and lesbian) to marry? Materials Lesson Procedures Handout 1 Deliberation Guide Handout 2 Deliberation Activities Handout 3 Student Reflection on Deliberation Reading Selected Resources Deliberation Question with Arguments (optional use if students have difficulty extracting the arguments or time is limited) 2009 Constitutional Rights Foundation Chicago. All Constitutional Rights Foundation Chicago materials and publications are protected by copyright. However, we hereby grant to all recipients a license to reproduce all material contained herein for distribution to students, other school site personnel, and district administrators.
2 Marriage and the State In 2001, The Netherlands became the first country in the world to legalize samesex (homosexual) marriage. Prior to that law, only couples consisting of a man and a woman could marry. After the law passed, Anne-Marie Thus and Helene Fassen became the first same-sex couple in the world to be officially married. We re totally ordinary, says Thus. In the next few years, other countries passed similar laws Belgium in 2003, and Spain and Canada in Today, seven countries and five U.S. states recognize same-sex marriage for gay and lesbian couples. The Dutch marriage law and others like it have sparked controversy. Many opponents of same-sex marriage insist that it will lead to destruction of the institution of marriage. These opponents question the limits of democratic decision-making in overturning long-standing social customs and institutions. Defining and Regulating Marriage Marriage can have both a civil (secular) and a religious element (Andryszewski, 2008). The state offers civil marriage, which is regulated by the government. A civil marriage grants the legal rights of marriage to a couple. A religious marriage ceremony also includes two additional dimensions. The couple vows fidelity to God and their faith tradition. In turn, the couple asks for and receives sanction from God and the community of believers for their marriage. Religious institutions such as churches, synagogues, and mosques have their own rules for whom they will or will not allow to marry Constitutional Rights Foundation Chicago. All Constitutional Rights Foundation Chicago materials and publications are protected by copyright. However, we hereby grant to all recipients a license to reproduce all material contained herein for distribution to students, other school site personnel, and district administrators.
3 Most democracies today restrict marriage to heterosexual couples. For example, The Family Code of the Russian Federation, enacted in 1996, clearly requires the voluntary consent of the man and the woman in marriage. The Family Code of Lithuania defines marriage as one man and one woman and prohibits same sex marriage. Indeed, marriage terms indicating a heterosexual (male and female) relationship are the norm. In the English common law, the tradition that forms the basis and context for the American legal system, marriage could occur only with the consent of both parties. While having more than one spouse (polygamy) was practiced in other cultures Moses in the Hebrew Bible had two wives and the Prophet Muhammad in the Qur an had four marriage in the English legal tradition was unmistakably between one man and one woman ( Marriage: An Overview, Legal Information Institute). In most democracies, the national government typically regulates marriage. Marriages in the United States fall under each state government s lawmaking authority. State governments set certain rules about marriage, including minimum age requirements for marriage and prohibitions on marriages between certain close relatives, such as a parent, brother or sister, or aunt or uncle. All states also limit marriage to monogamy, or two people. As of this writing, every state except Connecticut, Iowa, Massachusetts, New Hampshire, and Vermont restricts marriage to one man and one woman. Traditionally, states must honor marriage licenses issued by other states. However, in 1994, the national government passed a law called the Defense of Marriage Act (DOMA), which allows states to ignore licenses issued to same-sex couples in other states. Deliberating in a Democracy 2009 Constitutional Rights Foundation Chicago. 2
4 Marriage: Responsibilities, Benefits, and Rights Some important responsibilities go with marriage. Married people share responsibility for rearing their children and sending them to school; if they fail to take care of their children, the state can remove their children from their home. They must take care of and pay for any property they own. Married couples receive some tax breaks; conversely, if one person cheats on taxes, the spouse is not legally liable, but the couple s assets (what they have) may be severely affected. Divorced individuals must take steps to provide economically, if necessary, for their former partners. Getting married brings with it a great many benefits that cover virtually every aspect of a person s life. In the United States and in Europe, married people can automatically hold joint property and inherit the property of a loved one who dies without a will. They are protected (in most cases) from testifying against each other in court. Spouses are entitled to collect health benefits, unemployment benefits, veterans benefits, and death benefits if their spouse is injured or dies. Married people automatically have the right to visit a spouse or a child in hospital, and to take family leave for extended illness or the birth of a child. Any children born to them are assumed to be theirs. Some democratic nations and localities have offered civil unions. A civil union is a secular marriage-like relationship regulated by the government. It allows couples to have some of the rights that married couples have. In 2006, for example, the Czech Republic passed a law that allowed same-sex couples to have a type of civil union called a registered partnership. The partners in this relationship have inheritance rights, the right to appeal court judgments on behalf of each other, and the privilege not to testify in court against each other, among other rights. Significantly, registered partnerships, like Deliberating in a Democracy 2009 Constitutional Rights Foundation Chicago. 3
5 other civil unions, do not allow the couples to adopt children, unless they dissolve the partnership and one of the partners adopts as a single parent. Marriage: Law and Tradition Many who view marriage as a purely secular or legal relationship as well as those whose religious beliefs recognize same-sex marriage believe marriage rights should belong to gay and lesbian couples who wish to marry. They believe the government should not discriminate against same-sex couples by denying those rights. Those who view marriage as a primarily religious relationship often believe that government should not extend marital rights to couples in a way that would reject the teachings of their religious tradition. They argue that redefining marriage offends the fundamental values of millions of people and contradicts the long-standing representation of a family by a mother, father, and child or children. In traditional Christianity, Islam, and Judaism, marriage is understood as a heterosexual institution. Orthodox Christianity and the Catholic Church explicitly forbid same-sex partnerships of any kind. Islamic law, as well, only recognizes the validity of marriage between a man and a woman. Today, however, certain Protestant Christian and Jewish denominations have called for civil recognition of same-sex marriages, and their clergy have performed weddings for gay and lesbian couples. A few historically Catholic countries also have broken with tradition. Spain legalized same-sex marriage in 2005, and Slovenia legalized same-sex registered partnerships in Some parts of historically Catholic Latin America have legalized civil unions. Since 2003, for example, residents of Buenos Aires, the capital of Argentina, can have same-sex civil unions. And since 2007, residents of Mexico City, the capital of Mexico, may do so as well. Deliberating in a Democracy 2009 Constitutional Rights Foundation Chicago. 4
6 The predominantly Muslim country of Albania has seen change in marriage laws. In July 2009, Prime Minister Sali Berisha proposed a measure in the parliament to give same-sex couples the same rights as heterosexual couples. Albanian opponents, including Muslims, Catholics, and Orthodox Christians, condemn Berisha's proposition as sinful, but also as politically corrupt. According to U.S. Supreme Court Justice Antonin Scalia, a democratic tradition allows the majority in a society to set moral standards. Scalia has written that to criminalize same-sex relations is well within the range of traditional democratic action, and warned against the invention of a brand-new constitutional right by a Court that is impatient of democratic change (Lawrence v. Texas, 2003). The brand new right he mentioned was legalized same-sex relationships, including marriage. Significantly, the U.S. Supreme Court rejected religious freedom as a defense when it outlawed polygamy (Reynolds v. United States, 1878) Advocates of the rights of same-sex couples to marry, on the other hand, find support for redefining marriage in legal traditions and democratic principles. The UN International Covenant on Civil and Political Rights, for example, states in Article 23 that The right of men and women of marriageable age to marry and to found a family shall be recognized. When Spain legalized same sex marriage, Spanish Prime Minister Jose Luis Rodriguez Zapatero said that Parliament was expanding the opportunities for happiness of our neighbors, our colleagues, our friends and our relatives and building a more decent society" ( Spain Legalizes Same-Sex Marriage, 2005). While marriage has been presumed to be heterosexual in English and American law, that legal tradition also includes the democratic principles of equal protection and due process, which the courts Deliberating in a Democracy 2009 Constitutional Rights Foundation Chicago. 5
7 have in some cases applied to marriage. For example, in 1967 the U.S. Supreme Court ruled that the Constitution prohibited states from denying marriage licenses to interracial couples (Loving v. Virginia, 1967). Marriage and Children Founding a family remains a special area of concern for people who oppose samesex marriage. Opponents of same-sex marriage contend that the tradition of heterosexual marriage has always fundamentally been about procreation. Children need both mothers and fathers, states Robert H. Knight, who helped draft the federal Defense of Marriage Act in the United States, and marriage is society s way of obtaining them. Supporters of same-sex marriage counter that marriage certainly includes the right to found a family but is not exclusively centered on that right. They point to legitimate marriages without children. Married couples traditionally find companionship and love, as well as rights to property. They also obtain rights to adopt children. Therefore, a heterosexual couple who cannot procreate is similarly situated to a same-sex couple with regard to adopting children. Also, assuming that children need both mothers and fathers, the case for traditional marriage is not strengthened by high divorce rates of heterosexual couples. Statistical evidence has shown that as many as 41 percent and perhaps 50 percent of heterosexual marriages in the United States end in divorce (New York Times, 2005). Supporters say allowing same-sex marriages would enable the establishment of more, not fewer, families. And children's best interests would be protected. The executive director of Amnesty International Ireland has argued, Because a same-sex couple is denied access to civil marriage, any adopted child parented by a same-sex couple will not Deliberating in a Democracy 2009 Constitutional Rights Foundation Chicago. 6
8 have the same rights, entitlements and protections afforded to a child adopted by a heterosexual couple. Similarly, the Massachusetts Supreme Judicial Court held in its decision to legalize same-sex marriage in 2003 that the government s goals in promoting procreation and ensuring good homes for child-rearing were not promoted by a ban on same-sex marriage (Goodridge v. Department of Public Health, 2003). Law and Democratic Change In democracies that recognize same-sex marriage, society must make significant adjustments to laws and policies. Opponents of same-sex marriage argue that those adjustments would place too great a burden on traditional heterosexual marriages. Opponents also point out that public opinion is still firmly against legalizing same-sex marriage. In the United States, about 40 percent of citizens support making same-sex marriages legal (Gallup, May 2009). About 44 percent of European Union citizens feel the same way (Eurobarometer, 2006). This tension exists also with respect to children. Less than a third of EU citizens, for example, feel that same-sex couples should have rights to adopt children. In contrast, a 2003 survey in the United States showed that 60 percent of adoption agencies accept applications from homosexual men and women, with more and more agencies seeking training in working with those parents. It s ironic and interesting, says Harvard University historian Nancy Cott, that same-sex marriage advocates and conservatives of the family-values school both agree on the value of marriage and how crucial it is as a social institution ( The Future of Marriage, Harvard Magazine, November-December 2004). Deliberating in a Democracy 2009 Constitutional Rights Foundation Chicago. 7
9 Marriage and the State Selected Resources 60 th Anniversary of the Declaration of Human Rights, Albanian gays welcome PM's same-sex marriage plan, American Psychological Association, APA Policy Statement: Sexual Orientation, Parents and Children, Andryszewski, Tricia. Same-Sex Marriage: Moral Wrong or Civil Right? (Twenty First Century Books, 2008). Child Welfare League of America, Position Statement on Parenting of Children by Lesbian, Gay and Bisexual Adults, Cosgrove-Mather, Bootie. Global View of Gay Marriage, CBS News, 4 March 2004, Czech Registered Partnership Law, Eskridge, William N. and Darren R. Spedale. Gay Marriage: For Better or Worse? What We ve Learned from the Evidence (Cambridge, UK: Oxford University Press, 2007), ction&ots=hd2ytmegth&sig=wie2dvu8iodcu2u9zqqxp1w4be#v=onepage&q=netherlands%20%20gay%20marriage%20%20reaction&f=false. Gays denied right to adopt, Prague Post, 8 July 2009, Green, Jennifer. Spain Legalizes Same-Sex Marriage, Washington Post, July 1, 2005, Hodder, Fraser Harbour. The Future of Marriage. Harvard Magazine, November-December 2004 pp Hull, Katherine E. Same-sex Marriage: The Cultural Politics of Love and Law, (Cambridge, UK: Cambridge University Press, 2006), ction&ots=z1tgj4uf_w&sig=gty94p34d0ytlva6wzgttdk8ias#v=onepage&q=netherlands&f=false. Hurley, Dan. Divorce Rate: It s Not As High As You Think, New York Times, 19 April 2005, ILGA, Mexico City Embraces Gay Unions, BBC News, 17 March 2007, National Family Policy Concept," adopted by SEIMAS (Lithuanian Parliament), 2008, (Lithuanian). The Pew Forum on Religion and Public Life: Issues: Gay Marriage, Public opinion and same-sex unions, Russian Civil Code, Slovenia to legalize soon same-sex marriage: minister, Agence France Presse, July 2, 2009, Sunstein, Cass R. The Right to Marry, University of Chicago Law Review (Public Law and Legal Theory Working Paper No. 76, October 2004). Brief of Amici Curiae American Center for Law & Justice, at 8 9, In Re Marriage Cases, 43 Cal. 4 th 757 (2008) Constitutional Rights Foundation Chicago. All Constitutional Rights Foundation Chicago materials and publications are protected by copyright. However, we hereby grant to all recipients a license to reproduce all material contained herein for distribution to students, other school site personnel, and district administrators.
10 Deliberation Question Marriage and the State Deliberation Question with Arguments Should our democracy permit same-sex couples (gay and lesbian) to marry? YES Arguments to Support the Deliberation Question 1. Marriage offers benefits that should be open to every member of democratic society. Married people can automatically hold and can inherit joint property, collect government benefits, visit their spouse or child in hospital, and take family leave for extended illness or the birth of a child. Gay and lesbian couples deserve to enjoy these rights and privileges just as heterosexual couples do. Government should not discriminate against same-sex couples by denying these rights. 2. While marriage certainly includes the right to found a family, it is not the only reason people get married. People marry for love and companionship, and they marry for economic reasons. There are also plenty of legitimate marriages without children, as well as singleparent families or blended families with a parent and children from two different marriages. All of these families are legitimate, as long as there is love and respect in the home qualities that both heterosexual and same-sex parents can provide. 3. The basic rights of people who are gay or lesbian should not be subject to a religious veto. Religious traditions in a democracy deserve respect, but they are not the foundation of democratic laws. Slavery was once accepted by Christians, Jews, and Muslims, but today all three traditions condemn slavery. Religious traditions also are not monolithic. Certain Protestant Christian and Jewish denominations have called for civil recognition of same-sex marriages, and their clergy have performed weddings for gay and lesbian couples. Religious practices, like democratic norms, evolve over time. 4. Allowing gays and lesbians to marry would create more, not fewer, families. And children's best interests would be protected. Our democracy s desire to encourage people to have children in good homes is by recognizing same-sex marriage, not banning it Constitutional Rights Foundation Chicago. All Constitutional Rights Foundation Chicago materials and publications are protected by copyright. However, we hereby grant to all recipients a license to reproduce all material contained herein for distribution to students, other school site personnel, and district administrators.
11 Deliberation Question Marriage and the State Deliberation Question with Arguments Should our democracy permit same-sex couples (gay and lesbian) to marry? NO Arguments to Oppose the Deliberation Question 1. All democracies have laws limiting who can marry. There are minimum age requirements and prohibitions against marrying close relatives. Most western democracies also limit marriage to two people. Moreover, democratic tradition allows the majority to the set moral standards for a society. In both European countries and the United States, a majority of the public is firmly against legalizing same-sex marriage. Our democracy can reasonably limit marriage to one man and one woman. 2. To permit gay and lesbian couples to marry will overturn centuries of custom and tradition. Marriage in both American and European law system has been unmistakably understood as between one man and one woman. By contrast, the calls for change to this tradition are very recent. Rushing to make such a change will cause great disruptions. Our democracy can wait a few generations to see whether such a radical change is really necessary. 3. The understanding of marriage as a relationship between one man and one woman is central to many religious traditions. Marriage is thus a sacred as well as a legal institution. Our democracy should not extend marital rights to couples in a way that would reject the teachings of these religious traditions and offend the values of millions of people. 4. Marriage has always fundamentally been about procreation. Marriage is the accepted way to create and raise children. Gay and lesbian partners cannot naturally procreate, nor can they simulate the long-standing representation of a family by a mother, a father, and a child or children Constitutional Rights Foundation Chicago. All Constitutional Rights Foundation Chicago materials and publications are protected by copyright. However, we hereby grant to all recipients a license to reproduce all material contained herein for distribution to students, other school site personnel, and district administrators.
12 Step One: Introduction Lesson Procedures Introduce the lesson and the Student Objectives on the Lesson Plan. Distribute and discuss Handout 1 Deliberation Guide. Review the Rules of Deliberation and post them in a prominent position in the classroom. Emphasize that the class will deliberate and then debrief the experience. Step Two: Reading Distribute a copy of the Reading to each student. Have students read the article carefully and underline facts and ideas they think are important and/or interesting (ideally for homework). Step Three: Grouping and Reading Discussion Divide the class into groups of four or five students. Group members should share important facts and interesting ideas with each other to develop a common understanding of the article. They can record these facts and ideas on Handout 2 Deliberation Activities (Review the Reading). Step Four: Introducing the Deliberation Question Each Reading addresses a Deliberation Question. Read aloud and/or post the Deliberation Question and ask students to write the Deliberation Question in the space provided on Handout 2. Remind students of the Rules for Deliberation on Handout 1. Step Five: Learning the Reasons Divide each group into two teams, Team A and Team B. Explain that each team is responsible for selecting the most compelling reasons for its position, which you will assign. Both teams should reread the Reading. Team A will find the most compelling reasons to support the Deliberation Question. Team B will find the most compelling reasons to oppose the Deliberation Question. To ensure maximum participation, ask everyone on the team to prepare to present at least one reason. Note: Team A and Team B do not communicate while learning the reasons. If students need help identifying the arguments or time is limited, use the Deliberation Question with Arguments handouts. Ask students to identify the most compelling arguments and add any additional ones they may remember from the reading. Step Six: Presenting the Most Compelling Reasons Tell students that each team will present the most compelling reasons to support or oppose the Deliberation Question. In preparation for the next step, Reversing Positions, have each team listen carefully for the most compelling reasons. 2005, 2006, 2007 Constitutional Rights Foundation Chicago. All Constitutional Rights Foundation Chicago materials and publications are protected by copyright. However, we hereby grant to all recipients a license to reproduce all material contained herein for distribution to students, other school site personnel, and district administrators.
13 Team A will explain their reasons for supporting the Deliberation Question. If Team B does not understand something, they should ask questions but NOT argue. Team B will explain their reasons for opposing the Deliberation Question. If Team A does not understand something, they should ask questions, but NOT argue. Note: The teams may not believe in or agree with their reasons but should be as convincing as possible when presenting them to others. Step Seven: Reversing Positions Explain that, to demonstrate that each side understands the opposing arguments, each team will select the other team s most compelling reasons. Team B will explain to Team A what Team A s most compelling reasons were for supporting the Deliberation Question. Team A will explain to Team B what Team B s most compelling reasons were for opposing the Deliberation Question. Step Eight: Deliberating the Question Explain that students will now drop their roles and deliberate the question as a group. Remind the class of the question. In deliberating, students can (1) use what they have learned about the issue and (2) offer their personal experiences as they formulate opinions regarding the issue. After deliberating, have students find areas of agreement in their group. Then ask students, as individuals, to express to the group their personal position on the issue and write it down (see My Personal Position on Handout 2). Note: Individual students do NOT have to agree with the group. Step Nine: Debriefing the Deliberation Reconvene the entire class. Distribute Handout 3 Student Reflection on Deliberation as a guide. Ask students to discuss the following questions: What were the most compelling reasons for each side? What were the areas of agreement? What questions do you still have? Where can you get more information? What are some reasons why deliberating this issue is important in a democracy? What might you or your class do to address this problem? Options include teaching others about what they have learned; writing to elected officials, NGOs, or businesses; and conducting additional research. Consider having students prepare personal reflections on the Deliberation Question through written, visual, or audio essays. Personal opinions can be posted on the web. Step Ten: Student Poll/Student Reflection Ask students: Do you agree, disagree, or are you still undecided about the Deliberation Question? Record the responses and have a student post the results on under the partnerships and/or the polls. Have students complete Handout , 2006, 2007 Constitutional Rights Foundation Chicago.
14 Handout 1 Deliberation Guide What Is Deliberation? Deliberation (meaningful discussion) is the focused exchange of ideas and the analysis of arguments with the aim of making a decision. Why Are We Deliberating? Citizens must be able and willing to express and exchange ideas among themselves, with community leaders, and with their representatives in government. Citizens and public officials in a democracy need skills and opportunities to engage in civil public discussion of controversial issues in order to make informed policy decisions. Deliberation requires keeping an open mind, as this skill enables citizens to reconsider a decision based on new information or changing circumstances. What Are the Rules for Deliberation? Read the material carefully. Focus on the deliberation question. Listen carefully to what others are saying. Check for understanding. Analyze what others say. Speak and encourage others to speak. Refer to the reading to support your ideas. Use relevant background knowledge, including life experiences, in a logical way. Use your heart and mind to express ideas and opinions. Remain engaged and respectful when controversy arises. Focus on ideas, not personalities. 2005, 2006, 2007 Constitutional Rights Foundation Chicago. All Constitutional Rights Foundation Chicago materials and publications are protected by copyright. However, we hereby grant to all recipients a license to reproduce all material contained herein for distribution to students, other school site personnel, and district administrators.
15 Handout 2 Deliberation Activities Review the Reading Determine the most important facts and/or interesting ideas and write them below. 1) 2) 3) Deliberation Question Learning the Reasons Reasons to Support the Deliberation Question (Team A) Reasons to Oppose the Deliberation Question (Team B) My Personal Position On a separate sheet of paper, write down reasons to support your opinion. You may suggest another course of action than the policy proposed in the question or add your own ideas to address the underlying problem. 2005, 2006, 2007 Constitutional Rights Foundation Chicago. All Constitutional Rights Foundation Chicago materials and publications are protected by copyright. However, we hereby grant to all recipients a license to reproduce all material contained herein for distribution to students, other school site personnel, and district administrators.
16 Name: Date: Teacher: Handout 3 Student Reflection on Deliberation Large Group Discussion: What We Learned What were the most compelling reasons for each side? Side A: Side B: What were the areas of agreement? What questions do you still have? Where can you get more information? What are some reasons why deliberating this issue is important in a democracy? What might you and/or your class do to address this problem? Individual Reflection: What I Learned Which number best describes your understanding of the focus issue? [circle one] NO DEEPER MUCH DEEPER UNDERSTANDING UNDERSTANDING What new insights did you gain? What did you do well in the deliberation? What do you need to work on to improve your personal deliberation skills? What did someone else in your group do or say that was particularly helpful? Is there anything the group should work on to improve the group deliberation? 2005, 2006, 2007 Constitutional Rights Foundation Chicago. All Constitutional Rights Foundation Chicago materials and publications are protected by copyright. However, we hereby grant to all recipients a license to reproduce all material contained herein for distribution to students, other school site personnel, and district administrators.
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