Word Count: 2520The proposed legalization of same-sex marriage is one of the mostsignificant issues in contemporary American family law. Presently, it isone of the most vigorously advocated reforms discussed in law reviews,one of the most explosive political questions facing lawmakers, and oneof the most provocative issues emerging before American courts. Ifsame-sex marriage is legalized, it could be one of the mostrevolutionary 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 thestatus of women are enormous.
Given the importance of the issue, thevalue of comprehensive debate of the reasons for and against legalizingsame-sex marriage should be obvious. Marriage is much more than merelya commitment to love one another. Aside from societal and religiousconventions, marriage entails legally imposed financial responsibilityand legally authorized financial benefits. Marriage provides automaticlegal protections for the spouse, including medical visitation,succession of a deceased spouse’s property, as well as pension and otherrights.
When two adults desire to “contract” in the eyes of the law, aswell a perhaps promise in the eyes of the Lord and their friends andfamily, to be responsible for the obligations of marriage as well as toenjoy its benefits, should the law prohibit their request merely becausethey are of the same gender? I intend to prove that because of ArticleIV of the United States Constitution, there is no reason why the federalgovernment nor any state government should restrict marriage to apredefined heterosexual relationship.
Marriage has changed throughout the years. In Western law, wives arenow equal rather than subordinate partners; interracial marriage is nowwidely accepted, both in statute and in society; and marital failureitself, rather than the fault of one partner, may be grounds for adivorce. Societal change have been felt in marriages over the past 25years as divorce rates have increased and have been integrated into evenupper class families.Proposals to legalize same-sex marriage or to enact broad domesticpartnership laws are currently being promoted by gay and lesbianactivists, especially in Europe and North America. The trend in westernEuropean nations during the past decade has been to increase legal aidto homosexual relations and has included marriage benefits to somesame-sex couples. For example, within the past six years, threeScandinavian countries have enacted domestic partnership laws allowingsame-sex couples in which at least one partner is a citizen of thespecified country therefore allowing many benefits that heterosexualmarriages are given. In the Netherlands, the Parliament is consideringdomestic partnership status for same-sex couples, all major politicalparties favor recognizing same-sex relations, and more than a dozentowns have already done so. Finland provides governmental socialbenefits to same-sex partners. Belgium allows gay prisoners the right tohave conjugal visits from same-sex partners. An overwhelming majority ofEuropean nations have granted partial legal status to homosexualrelationships. The European Parliament also has passed a resolutioncalling for equal rights for gays and lesbians.
In the United States, efforts to legalize same-sex domestic partnershiphave had some, limited success. The Lambda Legal Defense and EducationFund, Inc. reported that by mid-1995, thirty-six municipalities, eightcounties, three states, five state agencies, and two federal agenciesextended some benefits to, or registered for some official purposes,same-sex domestic partnerships. In 1994, the California legislaturepassed a domestic partnership bill that provided official stateregistration of same-sex couples and provided limited marital rights andprivileges relating to hospital visitation, wills and estates, andpowers of attorney. While California’s Governor Wilson eventuallyvetoed the bill, its passage by the legislature represented a notablepolitical achievement for advocates of same-sex marriage.
The most significant prospects for legalizing same-sex marriage inthe near future are in Hawaii, where advocates of same-sex marriage havewon a major judicial victory that could lead to the judiciallegalization of same-sex marriage or to legislation authorizing same-sexdomestic partnership in that state. In 1993, the Hawaii Supreme Court,in Baehr v. Lewin, vacated a state circuit court judgment dismissingsame-sex marriage claims and ruled that Hawaii’s marriage law allowingheterosexual, but not homosexual, couples to obtain marriage licensesconstitutes sex discrimination under the state constitution’s EqualProtection Clause and Equal Rights Amendment. The case began in 1991 when three same-sex couples who had beendenied marriage licenses by the Hawaii Department of Health brought suitin state court against the director of the department. Hawaii lawrequired couples wishing to marry to obtain a marriage license. Whilethe marriage license law did not explicitly prohibit same-sex marriageat that time, it used terms of gender that clearly indicated that onlyheterosexual couples could marry. The coupl sought a judicial decisionthat the Hawaii marriage license law is unconstitutional, as itprohibits same-sex marriage and allows state officials ro deny marriagelicenses to same-sex couples on account of the heterosexualityrequirement. Baehr and her attorney sought their objectives entirelythrough state law, not only by filing in state rather than federalcourt, but also by alleging exclusively violations of state law–theHawaii Constitution. The state moved for judgment on the pleadings andfor dismissal of the complaint for failure to state a claim; the state’smotion was granted in October, 1991. Thus, the circuit court upheld theheterosexuality marriage requirement as a matter of law and dismissedthe plaintiffs’ challenges to it.
Yet recently the Circuit Court of Hawaii decided that Hawaii hadviolated Baehr and her partner’s constitutional rights by the fourteenthamendment and that they could be recognized as a marriage. The courtfound that the state of Hawaii’s constitution expressly discriminatedagainst homosexuals and that because of Hawaii’s anti-discrimination lawthey must re evaluate the situation. After the ruling the stateimmediately asked for a stay of judgment, until the appeal had beenconvened, therefore putting off any marriage between Baehr and herpartner for at least a year.
By far Baehr is the most positive step toward actual marriage rightsfor gay and lesbian people. Currently there is a high tolerance forhomosexuals throughout the United States and currently in Hawaii. Judgesdo not need the popularity of the people on the Federal or circuit courtlevel to make new precedent. There is no clear majority that homosexualsshould have marriage rights in the general public, and yet the courtsvoted for Baehr. The judiciary has its own mind on how to interpret theconstitution which is obviously very different then most of Americanpopular belief. This is the principal reason that these judges are notelected by the people, so they do not have to bow to people pressure.
The constitutional rights argument for same-sex marriage affirms thatthere is a fundamental constitutional right to marry, or a broader rightof privacy or of intimate association. The essence of this right is theprivate, intimate association of consenting adults who want to sharetheir lives and commitment with each other and that same-sex coupleshave just as much intimacy and need for marital privacy as heterosexualcouples; and that laws allowing heterosexual, but not same-sex, couplesto marry infringe upon and discriminate against this fundamental right. Just as the Supreme Court compelled states to allow interracial marriageby recognizing the claimed right as part of the fundamentalconstitutional right to marry, of privacy and of intimate associationso should states be compelled now to recognize the fundamental right ofhomosexuals to do the same. If Baehr ultimately leads to the legalization of same-sex marriage orbroad, marriage like domestic partnership in Hawaii, the impact of thatlegalization will be felt widely. Marriage recognition principlesderived from choice-of-law and full-faith-and-credit rules probablywould be invoked to recognize same-sex Hawaiian marriages as valid inother states. The impact of Hawaii’s decision will immediately impactmarriage laws in all of the United States. The full faith and creditclause of the U.S. Constitution provides that full faith and creditshall be given to the “public acts, records, and judicial proceedings ofevery other state.”Marriage qualifies for recognition under each section:1) creation of marriage is “public act” because it occurs pursuant to astatutory scheme and is performed by a legally designated official, andbecause 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 spousesmeet the qualifications of the marriage statutes, and they have dulyentered matrimony. Public records of lesser consequence, such as birthcertificates and automobile titles have been accorded full faith andcredit;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 asafety net and guarantee for their wedlock then that same right shouldbe given to homosexual couples. This Article has often been cited as areference point for interracial marriages in the south when those statesdo 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 shouldbe denied to perhaps millions of homosexuals that want the opportunityto get married. The obstacles being out in front of homosexual couplesis in the name of the “normal” people that actively seek to define theirdefinition to all. It is these “normal” people that are the definitionof 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 andcould be changed. Therefore it would seem they are afraid to change, andhave not accepted that the world does change.
Unfortunately the full faith and credit clause has rarely been used asanything more then an excuse to get a quick divorce. A man wants adivorce yet his wife does not or will not void their marriage. He thengoes to Reno, Nevada, buys a house and gets a job for six weeks. Afterthat six weeks when he can declare himself a legal resident he appliesfor a singular marriage void and because Nevada law allows one side tovoid their marriage is they are a resident of Nevada their marriage isnow void. The man now moves back to his home state, and upon doing sothis state must now recognize the legitimacy that Nevada has voided outthe marriage. Even if the wife does not consent, the new state cannot doanything about it. That is what usually full faith and credit is usedunder.
Legislation enacted by President Clinton from Senator Don Nickles ofOklahoma called the Defense of Marriage Act (DOMA) has allowedindividual states to react differently to any intrusion of marriage thatthey feel is not proper. DOMA states “marriage means only a legal unionbetween one man and one woman as husband and wife.” “Supporters of DOMAalso claim clear constitutional warrant, and that Congress is exercisingits own authority under Article IV to prescribe the manner in which thepublic acts, records, and judicial proceedings of every other state,shall be proved.” However it would seem that by allowing individualstates to alter and change what the meaning of marriage is, it couldcreate a disaster if even heterosexuals want to wed. The underlyingprinciple in DOMA is that states now have the right to redefine whatthey feel is or is not appropriate behavior and shall be allowed orillegal in their state. It is also apparent that the signing of DOMA byPresident Clinton was more of a presidential campaign gesture then anactual change in policy. While he has shifted considerably from hisplatform in 1992 this move was specifically designed to change his imageamong more conservative voters. It is also apparent that this move didnot work because a majority of conservative Americans still voted forBob Dole in the 1996 Presidential election. Clinton, now that he hasbeen re elected, partially under the front of a more moderateadministration, should seriously rethink its policy on social change andwhether he wants to go out as the President that denied hundred ofthousands of people the opportunity for equal rights.
In 1967 the Supreme Court announced that “marriage is one of the mostbasic civil rights of man….essential to the pursuit of happiness.” Having the highest court on the land make such a profound statementabout something which current politicians think they can regulate likephone or tv’s is something short of appalling. For who is to say whathappiness can be created from wedlock but the people that are in the actitself, per couple, household and gender. The Uniform Marriage andDivorce Act proclaim that “All marriages contracted….outside thisState that were valid at the time of the contract or subsequentlyvalidated by the laws of the place in which they were contracted…arevalid in this State”. This Act has been enacted in seventeen states andcould be the foundation for full faith and credit if marriages were totake place in other states. However as much as the right wing conservatives wish to pursue anaggressive anti-gay/lifestyle agenda the DOMA act has been widelycriticized as intensely unconstitutional. It is bias and discriminatorytoward homosexuals and there fore against the United States Constitutionand once again the fourteenth amendment proclaiming all citizens equal. Fearing that the state may have to recognize same-gender marriagesfrom Hawaii, because of the controversy over DOMA the state legislaturesof Arizona, South Dakota, Utah, Oklahoma, Kansas, Idaho, and Georgia,have made preemptive strikes and enacted state legislation which barsrecognition of same-gender marriages. Several other state legislatures,including Alabama, Arkansas, California, Delaware, Louisiana, NewMexico, Kentucky, Maine, South Carolina and Wisconsin, have attempted toenact similar legislation, but failed. After Hawaiian marriages arebrought to these states for enforcement, these laws will lead each stateinto a potential separate constitutional challenge of its same-gendermarriage ban. Those cases could be the new foundation for a sweepingchange in popular American politics and thought and will perhaps pavethe road for increased awareness of this human rights issue.
Leaving aside, as government should, objections that may be held byparticular religions, the case against same-gender marriage is simplythat people are unaccustomed to it. Bigotry and prejudice still exist inour evolving society, and traditionally people fear what is strange andunfamiliar to them. One may argue that change should not be pushed alonghastily. At the same time, it is an argument for legalizing homosexualmarriage through consensual politics as in Denmark, rather than by courtorder, as may happen in Hawaii. Works Cited “Gay marriages should be allowed, state judge rules,” The Wall StreetJournal, 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 AngelesTimes, Page 1A, 1996 Dec. 4, 1996 “Announcing same-sex unions,” The Boston Globe, Page 15A, Dec. 2,1996Bonauto, “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 LawReview, Gibson, “To love, honor, and build a life: A case for same-gendermarriage,” 23-SUM Hum. Rts. 22, Summer 1996,Reidinger, Paul, American Bar Association Journal, Oct 1996Stoddard, Thomas, “Gay marriages: Make them legal”, Current Issues andEnduring Questions, Bedford Books, Boston, 1996Wiener, “Same-sex intimate and expressive association: The pickeringbalancing test or strict scrutiny?” 31 Harv. L. Rev. 561, Summer 1996″In sickness and in health, in Hawaii and where else?: Conflict of lawsand recognition of same-sex marriages,” 109 Harv. L. Rev. 2038, June1996Levendosky, Charles, Greensboro News and Record, “Congressional Intrusion Into Marriage Just Gets DOMA and DOMA”, May 20 1996Baehr 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 1996Article IV, sec.1 United States ConstitutionHandbook on Uniform State Laws, United States Code, Uniform Marriage andDivorce Act
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