Legality of 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 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


The case began