Constitutionality Of Same Sex Marriage Essay, Research Paper

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 Amendment.

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,

showing that a marriage has been validly contracted, that the spouses

meet the qualifications of the marriage statutes, and they have duly

entered matrimony. Public records of lesser consequence, such as birth

certificates and automobile titles have been accorded 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 homosexuals that want the opportunity

to get married. The obstacles being out in front of homosexual couples

is in the name of the "normal" people that actively seek to define their

definition to all. It is these "normal" people that are 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 and

could be changed. Therefore it would seem they are afraid to change, and

have not accepted that the world does change.

Unfortunately the full faith and credit clause has rarely been used as

anything more then an excuse to get a quick divorce. A man wants a

divorce yet his wife does not or will not void their 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 Nevada law allows one side to

void their marriage is 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

the marriage. Even if the wife does not consent, the new state cannot do

anything about it. That is what usually full faith and credit is used

under.

Legislation enacted by President Clinton from Senator Don Nickles of

Oklahoma 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." "Supporters of DOMA

also claim clear constitutional warrant, and that Congress is exercising

its own authority under Article IV to prescribe the manner in which the

public acts, records, and judicial proceedings of every other state,

shall be proved." However it would seem that by allowing individual

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

create a disaster if even 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 allowed 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 shifted considerably from his

platform in 1992 this move was specifically designed to change his image

among more conservative voters. It is also apparent that this move did

not work because a majority of conservative Americans still voted for

Bob Dole in the 1996 Presidential election. Clinton, now that he has

been re elected, partially under the front of a more moderate

administration, should seriously rethink its policy on social change and

whether he wants to go out as the President that denied hundred of

thousands of people 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 is something short of appalling. For who is to say what

happiness can be created from wedlock 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 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 there fore against the United States Constitution

and once again the fourteenth amendment proclaiming all citizens equal.

Fearing that the state may have to recognize same-gender marriages

from Hawaii, 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-gender 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-gender

marriage ban. Those cases could 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 case against same-gender marriage is simply

that people are unaccustomed to it. Bigotry and prejudice still exist in

our evolving society, and traditionally people fear what is strange and

unfamiliar to them. One may argue that change should not be pushed along

hastily. At the same time, it is an argument for legalizing homosexual

marriage through consensual politics as in Denmark, rather than by court

order, as may happen in Hawaii.

"Gay marriages should be allowed, state judge rules," The Wall Street

Journal, Dec. 4, 1996, 1996

"Hawaii judge ends gay marriage ban," New York Times, Dec. 4,

1996

"Hawaii ruling lifts ban on marriage of same-sex couples" Los Angeles

Times, Page 1A, 1996 Dec. 4, 1996

"Announcing same-sex unions," The Boston Globe, Page 15A, Dec. 2,

1996

Bonauto, "Advising non-traditional families: A general introduction,"

OCT B. B.J. 10, September-October 1996,

Cox, Barbara "Same sex marriage and choice of law", 1994 Wisconsin Law

Review,

Gibson, "To love, honor, and build a life: A case for same-gender

marriage," 23-SUM Hum. Rts. 22, Summer 1996,

Reidinger, Paul, American Bar Association Journal, Oct 1996

Stoddard, Thomas, "Gay marriages: Make them legal", Current Issues and

Enduring Questions, Bedford Books, Boston, 1996

Wiener, "Same-sex intimate and expressive association: The pickering

balancing test or strict scrutiny?" 31 Harv. L. Rev. 561, Summer 1996

"In sickness and in health, in Hawaii and where else?: Conflict of laws

and recognition of same-sex marriages," 109 Harv. L. Rev. 2038, June

1996

Levendosky, Charles, Greensboro News and Record, "Congressional

Intrusion Into Marriage Just Gets DOMA and DOMA", May 20 1996

Baehr v.Miike, 910 P.2d 112 (Hawaii Jan 23, 1996)

Baehr v. Lewin, 852 P.2d 44, (Hawaii May 5, 1993)

Defense of Marriage Act (DOMA), enacted 1996

Article IV, sec.1 United States Constitution

Handbook on Uniform State Laws, United States Code, Uniform Marriage and

Divorce Act