Constitutionality of Same Sex Marriages Essay Example For Students

Constitutionality of Same Sex Marriages Essay Constitutionality of Same Sex Marriage in the United States Matthew Brigham Legal Direct Study 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 huge. Given the importance of the issue, the value of broad debate of the reasons for and against legalizing same-sex marriage should be obvious. 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 law 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 countr y 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 at the time Californias 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 Hawaiis marriage law allowing heterosexual, but not homosexual, couples to obtain marriage licenses constitutes sex discrimination under the state constitutions 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 to 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 lawthe Hawaii Constitution. The state moved for judgment on the pleadings and for dismissal of the complaint for failure to state a claim; the states motion was granted in October, 1991. Because of this the circuit court upheld the heterosexuality marriage requirement as a matter of law and dismissed the plaintiffs challenges to it. During the recent years the Circuit Court of Hawaii decided that Hawaii had violated Baehr and her partners constitutional rights by the fourteenth amendment and that they could be recognized as a marriage. The court found that the state of Hawaiis constitution expressly discriminated against homosexuals and that because of Hawaiis 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. Helping Others in Need EssayIn 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 that current politicians think they can regulate like cell phones or TVs is something short of appalling. 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 contractedare 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 h as 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-sex 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-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 could be the new foundation for a sweeping cha nge in popular American politics and thought and will perhaps pave the road for increased awareness of this human rights issue. MASS LAWPRESIDENTIAL CANDIDATESConclusionWorks CitedGay marriages should be allowed, state judge rules, The Wall StreetJournal, Dec. 4, 1996, 1996Hawaii judge ends gay marriage ban, New York Times, Dec. 4,1996Hawaii ruling lifts ban on marriage of same-sex couples Los Angeles Times, Page 1A, 1996 Dec. 4, 1996Announcing same-sex unions, The Boston Globe, Page 15A, Dec. 2, 1996Bonauto, 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-sexmarriage, 23-SUM Hum. Rts. 22, Summer 1996,Reidinger, Paul, American Bar Association Journal, Oct 1996Stoddard, Thomas, Gay marriages: Make them legal, Current Issues and Enduring Questions, Bedford Books, Boston, 1996Wiener, Same-sex intimate and expressive association: The pickering balancing test or strict scrutiny? 31 Harv. L. Rev. 561, Summer 1996In sickness and in he alth, in Hawaii and where else?: Conflict of laws and recognition of same-sex marriages, 109 Harv. L. Rev. 2038, June 1996Levendosky, Charles, Greensboro News and Record, Congressional Intrusion Into Marriage Just Gets DOMA and DOMA, May 20 1996Baehr 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 1996Article IV, sec.1 United States ConstitutionHandbook on Uniform State Laws, United States Code, Uniform Marriage and Divorce Act