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Legality Of Same Sex Marriages Essay Research

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 legaliza

tion 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.

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