Legality of same sex marriages

Essay by leenieT469A+, April 2002

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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 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


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 theConstitution 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,



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


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 Act