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Essay/Term paper: Same sex marriages

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Same Sex 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
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
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 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 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 under.
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, 1996

"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, 1996
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 Review,

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 1996

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


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