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Constitutionality Of Same Sex Marriage

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.

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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
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

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.

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,
“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,
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
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
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
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