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SameSex Marriages Legal or Not

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 (Cox 42).  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 a “contract” in the eyes of the law, it doubles as a promise- to one another, their friends, and their 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, or any state government, for that matter, should restrict marriage to a predefined heterosexual relationship.
Marriage has endured a metamorphosis 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, may be grounds for a divorce (Stoddard 33).  Societal changes have been felt in marriages over the past 25 years as divorce rates have increased, integrating into even those families of the upper-class.  Proposals to legalize same-sex marriages or to enact broad domestic partnership laws are currently being promoted by gay and lesbian activists, especially in North America (Boston Globe 15A).
In the United States, efforts to legalize same-sex domestic partnerships have had 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 official purposes], same-sex domestic partnerships (Gibson 132).
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 (169).  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 marriages 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, in the case of Baehr v. Lewin, the Supreme Court of Hawaii vacated a state circuit-court judgement dismissing same-sex marriage claims and ruled that Hawaii’s marriage law allowing heterosexual, but not homosexual, couples to obtain marriage licenses constituted gender discrimination under the state constitution’s Equal Protection Clause and Equal Rights Amendment (New York Times 55).
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 (Los Angeles Times 1A). 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 couples sought a judicial decision that would rule the law out as 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 state Constitution of Hawaii.  The state moved for judgment on the pleas 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 (Harvard Law Review 79).
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 married.  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 (The Wall Street Journal 67).
By far, Baehr is the most positive step toward actual marriage rights for gay and lesbian couples.  Currently, there is a high tolerance for homosexuals throughout the United States.  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 feeling that homosexuals should have marriage rights in the general public, and yet the courts voted for Baehr.  The judiciary system has its mind on how to interpret the Constitution, which is obviously very different from most of popular American belief.  This is the principal reason these judges are not elected by the people- they do not have to bow to public 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/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- same-sex couples have just as much a need for intimacy and marital privacy as heterosexual couples.  Laws allowing only heterosexual couples to marry infringe upon and discriminate against this fundamental right (Reidinger 101).
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’s case 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 (Wiener 561).
This case 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-sex 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.


“Announcing Same-sex Unions”.  The Boston Globe 2 Dec.
1996: 15A.

Cox, Barbara.  “Same-sex Marriage and Choice of Law”.
Wisconsin Law Review 1994.

“Gay Marriages should be Allowed, State Judge Rules”.  The
Wall Street Journal 4 Dec. 1996.

Gibson.  “To Love, Honor, and Build a Life: A Case for
Same-gender Marriage”.  23-SUM Human Rights Summer 1996.

“Hawaii Judge Ends Gay Marriage Ban”.  New York Times 4
Dec. 1996.

“Hawaii Ruling Lifts Ban on Marriage of Same-sex Couples”.
Los Angeles Times 4 Dec. 1996: 1A.

“In Sickness and in Health, in Hawaii and where Else?:
Conflict of Laws and Recognition of Same-sex Marriages”. Harvard Law Review June 1996

Reidinger, Paul.  American Bar Association Journal Oct.

Stoddard, Thomas.  Current Issues and Enduring Questions.
Boston: Bedford Books, 1996.

Wiener.  “Same-sex Intimate and Expressive association: The
Pickering Balancing Test or Strict Scrutiny?”              Harvard Law Review Summer 1996: 561.

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