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 …