Legality of sameSex Marriages Essay

This essay has a total of 2778 words and 15 pages.

Legality of sameSex Marriages

Legality of Same-Sex Marriages
The proposed legalization of same-sex marriage is one of the
most significant issues in contemporary American family law.
Presently, it is one of the most vigorously advocated reforms
discussed in law reviews, one of the most explosive political
questions facing lawmakers, and one of the most provocative issues
emerging before American courts. If same-sex marriage is legalized, it
could be one of the most revolutionary policy decisions in the history
of American family law. The potential consequences, positive or
negative, for children, parents, same-sex couples, families, social
structure public health, and the status of women are enormous. Given
the importance of the issue, the value of comprehensive debate of the
reasons for and against legalizing same-sex marriage should be
obvious. Marriage is much more than merely a commitment to love one
another. Aside from societal and religious conventions, marriage
entails legally imposed financial responsibility and legally
authorized financial benefits. Marriage provides automatic legal
protections for the spouse, including medical visitation,
succession of a deceased spouse's property, as well as pension and
other rights. When two adults desire to "contract" in the eyes of the
law, as well a perhaps promise in the eyes of the Lord and their
friends and family, to be responsible for the obligations of marriage
as well as to enjoy its benefits, should the law prohibit their
request merely because they are of the same gender? I intend to prove
that because of Article IV of the United States Constitution, there is
no reason why the federal government nor any state government should
restrict marriage to a predefined heterosexual relationship.

Marriage has changed throughout the years. In Western law,
wives are now equal rather than subordinate partners; interracial
marriage is now widely accepted, both in statute and in society; and
marital failure itself, rather than the fault of one partner, may be
grounds for a divorce. Societal change have been felt in marriages
over the past 25 years as divorce rates have increased and have been
integrated into even upper class families. Proposals to legalize
same-sex marriage or to enact broad domestic partnership laws are
currently being promoted by gay and lesbian activists, especially in
Europe and North America. The trend in western European nations during
the past decade has been to increase legal aid to homosexual relations
and has included marriage benefits to some same-sex couples. For
example, within the past six years, three Scandinavian countries have
enacted domestic partnership laws allowing same-sex couples in which
at least one partner is a citizen of the specified country therefore
allowing many benefits that heterosexual marriages are given. In the
Netherlands, the Parliament is considering domestic partnership status
for same-sex couples, all major political parties favor recognizing
same-sex relations, and more than a dozen towns have already done so.
Finland provides governmental social benefits to same-sex partners.
Belgium allows gay prisoners the right to have conjugal visits from
same-sex partners. An overwhelming majority of European nations have
granted partial legal status to homosexual relationships. The European
Parliament also has passed a resolution calling for equal rights for
gays and lesbians.

In the United States, efforts to legalize same-sex domestic
partnership have had some, limited success. The Lambda Legal Defense
and Education Fund, Inc. reported that by mid-1995, thirty-six
municipalities, eight counties, three states, five state agencies, and
two federal agencies extended some benefits to, or registered for some
official purposes, same-sex domestic partnerships. In 1994, the
California legislature passed a domestic partnership bill that
provided official state registration of same-sex couples and provided
limited marital rights and privileges relating to hospital visitation,
wills and estates, and powers of attorney. While California's Governor
Wilson eventually vetoed the bill, its passage by the legislature
represented a notable political achievement for advocates of same-sex
marriage. The most significant prospects for legalizing same-sex
marriage in the near future are in Hawaii, where advocates of same-sex
marriage have won a major judicial victory that could lead to the
judicial legalization of same-sex marriage or to legislation
authorizing same-sex domestic partnership in that state. In 1993, the
Hawaii Supreme Court, in Baehr v. Lewin, vacated a state circuit court
judgment dismissing same-sex marriage claims and ruled that Hawaii's
marriage law allowing heterosexual, but not homosexual, couples to
obtain marriage licenses constitutes sex discrimination under the
state constitution's Equal Protection Clause and Equal Rights

The case began in 1991 when three same-sex couples who had
been denied marriage licenses by the Hawaii Department of Health
brought suit in state court against the director of the department.
Hawaii law required couples wishing to marry to obtain a marriage
license. While the marriage license law did not explicitly prohibit
same-sex marriage at that time, it used terms of gender that clearly
indicated that only heterosexual couples could marry. The coupl sought
a judicial decision that the Hawaii marriage license law is
unconstitutional, as it prohibits same-sex marriage and allows state
officials ro deny marriage licenses to same-sex couples on account of
the heterosexuality requirement. Baehr and her attorney sought their
objectives entirely through state law, not only by filing in state
rather than federal court, but also by alleging exclusively violations
of state law--the Hawaii Constitution. The state moved for judgment on
the pleadings and for dismissal of the complaint for failure to state
a claim; the state's motion was granted in October, 1991. Thus, the
circuit court upheld the heterosexuality marriage requirement as a
matter of law and dismissed the plaintiffs' challenges to it.

Yet recently the Circuit Court of Hawaii decided that Hawaii
had violated Baehr and her partner's constitutional rights by the
fourteenth amendment and that they could be recognized as a marriage.
The court found that the state of Hawaii's constitution expressly
discriminated against homosexuals and that because of Hawaii's
anti-discrimination law they must re evaluate the situation. After the
ruling the state immediately asked for a stay of judgment, until the
appeal had been convened, therefore putting off any marriage between
Baehr and her partner for at least a year.

By far Baehr is the most positive step toward actual marriage
rights for gay and lesbian people. Currently there is a high tolerance
for homosexuals throughout the United States and currently in Hawaii.
Judges do not need the popularity of the people on the Federal or
circuit court level to make new precedent. There is no clear majority
that homosexuals should have marriage rights in the general public,
and yet the courts voted for Baehr. The judiciary has its own mind on
how to interpret the constitution which is obviously very different
then most of American popular belief. This is the principal reason
that these judges are not elected by the people, so they do not have
to bow to people pressure. The constitutional rights argument for
same-sex marriage affirms that there is a fundamental constitutional
right to marry, or a broader right of privacy or of intimate
association. The essence of this right is the private, intimate
association of consenting adults who want to share their lives and
commitment with each other and that same-sex couples have just as much
intimacy and need for marital privacy as heterosexual couples; and
that laws allowing heterosexual, but not same-sex, couples to marry
infringe upon and discriminate against this fundamental right.

Just as the Supreme Court compelled states to allow
interracial marriage by recognizing the claimed right as part of the
fundamental constitutional right to marry, of privacy and of intimate
association so should states be compelled now to recognize the
fundamental right of homosexuals to do the same. If Baehr ultimately
leads to the legalization of same-sex marriage or broad, marriage like
domestic partnership in Hawaii, the impact of that legalization will
be felt widely. Marriage recognition principles derived from
choice-of-law and full-faith-and-credit rules probably would be
invoked to recognize same-sex Hawaiian marriages as valid in other
states. The impact of Hawaii's decision will immediately impact
marriage laws in all of the United States. The full faith and credit
clause of the U.S. Constitution provides that full faith and credit
shall be given to the "public acts, records, and judicial proceedings
of every other state."

Marriage qualifies for recognition under each section:

1) creation of marriage is "public act" because it occurs pursuant to
a statutory scheme and is performed by a legally designated official,
and because a marriage is an act by the state;

2) a marriage certificate is a "record" with a outlined legal effect,
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