FREE ESSAY ON GAY MARRIAGES

GAY MARRIAGES

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 couple 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 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.