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 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