Legality Of Same Sex Marriages! Essay, Research Paper

INTRODUCTION

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

provocative issues. 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 may be obvious. Marriage is much more

than a commitment to love one another. Aside from societal

and religious conventions, marriage entails legally imposed

financial responsibility and legally authorized financial

benefits. Marriage instantly provides a automatic legal

succession of a deceased spouse’s property, as well as

pension and law, as well as promise in the eyes of the Lord,

and their 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 homosexual relationship?

Marriage laws have changed throughout the years. In

Western law, wives are now equal rather than subordinate

partners; interracial marriage is now widely accepted, both

in the statue and in society; and marital failure itself,

rather than the fault of one partner, may be grounds in some

states for a divorce. Societal changes have been felt in

marriages over the past twenty-five years as divorce rates

have increased. Proposals to legalize same-sex marriages 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 some same-sex couples.

For example, with in 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 that

homosexual marriages are given.

In the Netherlands, the Parliament is considered

domestic partnership status for same-sex couples, all the

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 a

conjugal visits from same-sex partners. An overwhelming

majority of European nations have granted partial legal

status to homosexual relationships.

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 countries,

three states, five state agencies, and two federal agencies

extended some benefits to, or registered for official

purposes, same-sex 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, willis 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 the same-sex marriage

have won a major judicial victory that could lead to the

judicial legalization of the same-sex marriage or to

legislation authorizing same-sex domestic partnership in

that state. In 1993, the Hawaii Supreme Court, in Baehr vs.

Lewin, vacated a state circuit court judgment dismissing

same-sex discrimination under the state constitution’s Equal

Protection Clause and Equal Rights Amendment.

The above 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 the time, it used terms of gender that the

Hawaii marriage license law is unconstitutional, as it

prohibits same-sex marriage and allows state officials to

deny marriage licenses to same-sex couples in 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 up held the homosexuality 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 parent’s constitutional

rights be the fourteenth amendment and that they could be

recognized as a marriage. The court found that the state if

Hawaii’s constitution expressly discriminated against

homosexuals and that because of Hawaii’s anti-discrimination

law they must revaluate 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 tights for gay and lesbian

people. 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 (in the general public) that

homosexuals should have marriage rights. And still the

courts voted for Baehr. The judiciary has its own mind on

how to interpret the constitution, which is obviously very

different than most of American popular beliefs. 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 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.

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 principals 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 of the United

States. The full faith and credit clause of the United

States 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 statuary scheme and is performed by a legal

designated official, and because a marriage is an act by the

state;

2) A marriage certificate is a “record” with a outlined

legal effect, a showing that a marriage has been validly

contracted , that the spouses meet the qualifications of the

marriage statues, and they have duly entered matrimony.

Public records of lesser consequence, such as birth

certificates and automobile full faith and credit;

3) Celebrating a marriage is a “judicial proceeding” where

judges, court clerks, or justices of the peace perform the

act of marriage. It would seem evident that if heterosexual

couples use Article IV as a safety net and guarantee for

their wedlock then that same right should be given to

homosexual couples.

This Article has often been cited as a reference point

for interracial marriages in the south when those states do

not want to recognize the legitimacy of that union by

another state . As this is used for that lifestyle, there

is no logical reason it should be denied to perhaps millions

of homosexual couples in the name of the “normal” people who

actively seek to define their definition of all. It is

these “normal” people who create the definition of surplus

repression and social domination. Yet as they cling to the

Constitution for their freedoms they deny those same

freedoms to not “normal” people because they would lose

their social domination. Therefore it would seem they are

afraid to change because of all the “hype” about

homosexuals. People do not except that the world does

change.

Excuses were seldom used to get a divorce by using the

full faith and credit clause. Both partners in the marriage

do not agree in the reality of there marriage. He then goes

to Reno, Nevada, buys a house and gets a job for six weeks.

After that six weeks when he can declare himself a legal

resident he applies for a singular marriage void and because

of Nevada law allows one side to void their marriage if

they, are a resident of Nevada their marriage is now void.

The man now moves back to his home state, and upon doing so

this state must now recognize the legitimacy that Nevada has

voided out of the marriage. Even if the wife does not

consent, the new state cannot do anything about its

Legislation enacted by President Clinton from Senator Don

Nickles of Nevada called the Defense of Marriage Act (DOMA)

has allowed individual states to react differently to any

intrusion of marriage that they feel is not proper. DOMA

states “marriage means only a legal union between one man

and one woman as husband and wife.” “Supports of DOOM also

claim clear constitutional warrant, and that congress is

exercising its own authority under Article IV to proscribe

the manner in which the public acts, records, and judicial

proceedings of every state, shall be proven.”

However it could seem that by allowing individual

states to alter and change what the meaning of marriage is,

it could create a disaster if heterosexuals want to wed.

The underlying principle in DOMA is that states now

have the right to redefine what they feel is or is not

appropriate behavior and shall be considered legal or

illegal in their state. It is also apparent that the

signing of DOMA by President Clinton was more of a

presidential campaign gesture then an actual change in

policy. While he has considerably shifted from his platform

in 1992. This move was specifically designed to change his

image among more conservative

voters. It is also was apparent that this move was because

a majority of conservative Americans still voted for Bob

Dole in the 1996 Presidential election. Clinton thought

that if he had changed his mind then maybe he could get some

more votes from the conservatives, who he thought would vote

for him with the new signing of the DOMA.

Clinton, now that he has been reelected, partially

under the front of a more moderate administration. Clinton

should rethink on the policy of the social change and

whether he wants to go out as the President that denied

hundreds of thousands of homosexuals the opportunity for

equal rights.

In 1967 the Supreme Court announced that “marriage is

one of the most basic civil rights of man….essential to

the pursuit of happiness.” having the highest court on the

land make such a profound statement about something which

current politicians think they can regulate like phone or

TV’s as something short of appalling. For who is to say

what happiness can be created form wed lock but the people

that are in the act itself, per couple, household and

gender. The Uniform Marriage and Divorce Act proclaim that

“All marriages contracted….outside this State that were

valid at the time of the contract or subsequently validated

by the laws of the place in which they were

contracted….are valid in this State.” This Act has been

enacted in seventeen states and could be the foundation for

full faith and credit if homosexual marriages were to take

place in other states.

However as much as the right wing conservatives wish to

pursue an aggressive anti-gay lifestyle agenda the DOMA act

has been widely criticized as intensely unconstitutional.

It is bias and discriminatory toward homosexuals and

therefore against the United States Constitution and once

again the fourteenth amendment proclaiming all citizens

equal. Fearing that the state may have to recognize

same-sex marriages from Hawaii and Alaska, because of the

controversy over DOMA the state legislatures of Arizona,

South Dakota, Utah, Oklahoma, Kansas, Idaho, and Georgia,

have made preemptive strikes and enacted state legislation

which bars recognition of same-sex marriages. Several other

state legislatures, including Alabama, Arkansas, California,

Delaware, Louisiana, New Mexico, Kentucky, Maine, South

Carolina, and Wisconsin, have attempted to enact similar

legislation, but failed. After Hawaiian marriages are

brought to these states for enforcement, these laws will

lead each state into a potential separate constitutional

challenge of its same-sex marriage ban.

Those cases should be the new foundation for a sweeping

change in popular American politics and thought and will

perhaps pave the road for increased awareness of this human

rights issue. Leaving aside, as government should,

objections that may be held by particular religions, the

cases that are with same-sex marriages are not good for

people because they are not use to hearing about it, and

don’t want to hear about it. At the same time, it is an

argument for legalizing homosexual marriages through

politics as in Denmark, rather than by court order, as may

happen in Hawaii.