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- LAW (Gay Rights/Legislation)
- Constitutionality of Same Sex Marriage in the United States of America
-
- 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.
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- Works Cited
- "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
-