one of themost significant issues in contemporary American family law.Presently, it is one of the most vigorously advocated reformsdiscussed in law reviews, one of the most explosive politicalquestions facing lawmakers, and one of the most provocative issuesemerging before American courts. If same-sex marriage is legalized, itcould be one of the most revolutionary policy decisions in the historyof American family law. The potential consequences, positive ornegative, for children, parents, same-sex couples, families, socialstructure public health, and the status of women are enormous. Giventhe importance of the issue, the value of comprehensive debate of thereasons for and against legalizing same-sex marriage should beobvious. Marriage is much more than merely a commitment to love oneanother. Aside from societal and religious conventions, marriageentails legally imposed financial responsibility and legallyauthorized financial benefits.
Marriage provides automatic legalprotections for the spouse, including medical visitation,succession of a deceased spouse’s property, as well as pension andother rights. When two adults desire to “contract” in the eyes of thelaw, as well a perhaps promise in the eyes of the Lord and theirfriends and family, to be responsible for the obligations of marriageas well as to enjoy its benefits, should the law prohibit theirrequest merely because they are of the same gender? I intend to provethat because of Article IV of the United States Constitution, there isno reason why the federal government nor any state government shouldrestrict marriage to a predefined heterosexual relationship.Marriage has changed throughout the years. In Western law,wives are now equal rather than subordinate partners; interracialmarriage is now widely accepted, both in statute and in society; andmarital failure itself, rather than the fault of one partner, may begrounds for a divorce. Societal change have been felt in marriagesover the past 25 years as divorce rates have increased and have beenintegrated into even upper class families. Proposals to legalizesame-sex marriage or to enact broad domestic partnership laws arecurrently being promoted by gay and lesbian activists, especially inEurope and North America.
The trend in western European nations duringthe past decade has been to increase legal aid to homosexual relationsand has included marriage benefits to some same-sex couples. Forexample, within the past six years, three Scandinavian countries haveenacted domestic partnership laws allowing same-sex couples in whichat least one partner is a citizen of the specified country thereforeallowing many benefits that heterosexual marriages are given. In theNetherlands, the Parliament is considering domestic partnership statusfor same-sex couples, all major political parties favor recognizingsame-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 fromsame-sex partners. An overwhelming majority of European nations havegranted partial legal status to homosexual relationships.
The EuropeanParliament also has passed a resolution calling for equal rights forgays and lesbians.In the United States, efforts to legalize same-sex domesticpartnership have had some, limited success. The Lambda Legal Defenseand Education Fund, Inc.
reported that by mid-1995, thirty-sixmunicipalities, eight counties, three states, five state agencies, andtwo federal agencies extended some benefits to, or registered for someofficial purposes, same-sex domestic partnerships. In 1994, theCalifornia legislature passed a domestic partnership bill thatprovided official state registration of same-sex couples and providedlimited marital rights and privileges relating to hospital visitation,wills and estates, and powers of attorney. While California’s GovernorWilson eventually vetoed the bill, its passage by the legislaturerepresented a notable political achievement for advocates of same-sexmarriage. The most significant prospects for legalizing same-sexmarriage in the near future are in Hawaii, where advocates of same-sexmarriage have won a major judicial victory that could lead to thejudicial legalization of same-sex marriage or to legislationauthorizing same-sex domestic partnership in that state. In 1993, theHawaii Supreme Court, in Baehr v. Lewin, vacated a state circuit courtjudgment dismissing same-sex marriage claims and ruled that Hawaii’smarriage law allowing heterosexual, but not homosexual, couples toobtain marriage licenses constitutes sex discrimination under thestate constitution’s Equal Protection Clause and Equal RightsAmendment.
The case began in 1991 when three same-sex couples who hadbeen denied marriage licenses by the Hawaii Department of Healthbrought suit in state court against the director of the department.Hawaii law required couples wishing to marry to obtain a marriagelicense. While the marriage license law did not explicitly prohibitsame-sex marriage at that time, it used terms of gender that clearlyindicated that only heterosexual couples could marry. The coupl soughta judicial decision that the Hawaii marriage license law isunconstitutional, as it prohibits same-sex marriage and allows stateofficials ro deny marriage licenses to same-sex couples on account ofthe heterosexuality requirement. Baehr and her attorney sought theirobjectives entirely through state law, not only by filing in staterather than federal court, but also by alleging exclusively violationsof state law–the Hawaii Constitution.
The state moved for judgment onthe pleadings and for dismissal of the complaint for failure to statea claim; the state’s motion was granted in October, 1991. Thus, thecircuit court upheld the heterosexuality marriage requirement as amatter of law and dismissed the plaintiffs’ challenges to it.Yet recently the Circuit Court of Hawaii decided that Hawaiihad violated Baehr and her partner’s constitutional rights by thefourteenth amendment and that they could be recognized as a marriage.The court found that the state of Hawaii’s constitution expresslydiscriminated against homosexuals and that because of Hawaii’santi-discrimination law they must re evaluate the situation. After theruling the state immediately asked for a stay of judgment, until theappeal had been convened, therefore putting off any marriage betweenBaehr and her partner for at least a year.By far Baehr is the most positive step toward actual marriagerights for gay and lesbian people.
Currently there is a high tolerancefor homosexuals throughout the United States and currently in Hawaii.Judges do not need the popularity of the people on the Federal orcircuit court level to make new precedent. There is no clear majoritythat homosexuals should have marriage rights in the general public,and yet the courts voted for Baehr. The judiciary has its own mind onhow to interpret the constitution which is obviously very differentthen most of American popular belief.
This is the principal reasonthat these judges are not elected by the people, so they do not haveto bow to people pressure. The constitutional rights argument forsame-sex marriage affirms that there is a fundamental constitutionalright to marry, or a broader right of privacy or of intimateassociation. The essence of this right is the private, intimateassociation of consenting adults who want to share their lives andcommitment with each other and that same-sex couples have just as muchintimacy and need for marital privacy as heterosexual couples; andthat laws allowing heterosexual, but not same-sex, couples to marryinfringe upon and discriminate against this fundamental right.Just as the Supreme Court compelled states to allowinterracial marriage by recognizing the claimed right as part of thefundamental constitutional right to marry, of privacy and of intimateassociation so should states be compelled now to recognize thefundamental right of homosexuals to do the same. If Baehr ultimatelyleads to the legalization of same-sex marriage or broad, marriage likedomestic partnership in Hawaii, the impact of that legalization willbe felt widely. Marriage recognition principles derived fromchoice-of-law and full-faith-and-credit rules probably would beinvoked to recognize same-sex Hawaiian marriages as valid in otherstates.
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 proceedingsof every other state.”Marriage qualifies for recognition under each section:—1) creation of marriage is “public act” because it occurs pursuant toa 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 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 a reference point forinterracial marriages in the south when those states do not want torecognize the legitimacy of that union by another state. As this isused for that lifestyle, there is no logical reason it should bedenied 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 definetheir definition to all. It is these “normal” people that are thedefinition of surplus repression and social domination. Yet as theycling to theConstitution for their freedoms they deny those samefreedoms to not “normal” people because they would lose their socialdomination and could be changed. Therefore it would seem they areafraid to change, and have not accepted that the world does change.Unfortunately the full faith and credit clause has rarely beenused as anything more then an excuse to get a quick divorce. A manwants 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 sixweeks. After that six weeks when he can declare himself a legalresident he applies for a singular marriage void and because Nevadalaw allows one side to void their marriage is they are a resident ofNevada their marriage is now void. The man now moves back to his homestate, and upon doing so this state must now recognize the legitimacythat Nevada has voided out the marriage. Even if the wife does notconsent, the new state cannot do anything about it. That is whatusually full faith and credit is used under.Legislation enacted by President Clinton from Senator DonNickles of Oklahoma called the Defense of Marriage Act (DOMA) hasallowed individual states to react differently to any intrusion ofmarriage that they feel is not proper. DOMA states “marriage meansonly a legal union between one man and one woman as husband and wife.
“”Supporters of DOMA also claim clear constitutional warrant, and thatCongress is exercising its own authority under Article IV to prescribethe manner in which the public acts, records, and judicial proceedingsof every other state, shall be proved.” However it would seem that byallowing individual states to alter and change what the meaning ofmarriage is, it could create a disaster if even heterosexuals want towed. The underlying principle in DOMA is that states now have theright to redefine what they feel is or is not appropriate behavior andshall be allowed or illegal in their state. It is also apparent thatthe signing of DOMA by President Clinton was more of a presidentialcampaign gesture then an actual change in policy. While he has shiftedconsiderably from his platform in 1992 this move was specificallydesigned to change his image among more conservative voters.
It isalso apparent that this move did not work because a majority ofconservative Americans still voted for Bob Dole in the 1996Presidential election. Clinton, now that he has been re elected,partially under the front of a more moderate administration, shouldseriously rethink its policy on social change and whether he wants togo out as the President that denied hundred of thousands of people theopportunity for equal rights.In 1967 the Supreme Court announced that “marriage is one ofthe most basic civil rights of man….
essential to the pursuit ofhappiness.” Having the highest court on the land make such a profoundstatement about something which current politicians think they canregulate like phone or tv’s is something short of appalling. For whois to say what happiness can be created from wedlock but the peoplethat are in the act itself, per couple, household and gender.
TheUniform Marriage and Divorce Act proclaim that “All marriagescontracted…
.outside this State that were valid at the time of thecontract or subsequently validated by the laws of the place in whichthey were contracted…are valid in this State”.
This Act has beenenacted in seventeen states and could be the foundation for full faithand credit if marriages were to take place in other states.However as much as the right wing conservatives wish to pursuean aggressive anti-gay/lifestyle agenda the DOMA act has been widelycriticized as intensely unconstitutional. It is bias anddiscriminatory toward homosexuals and there fore against the UnitedStates Constitution and once again the fourteenth amendmentproclaiming all citizens equal.
Fearing that the state may have torecognize same-gender marriages from Hawaii, because of thecontroversy over DOMA the state legislatures of Arizona, South Dakota,Utah, Oklahoma, Kansas, Idaho, and Georgia, have made preemptivestrikes and enacted state legislation which bars recognition ofsame-gender marriages. Several other state legislatures, includingAlabama, Arkansas, California, Delaware, Louisiana, New Mexico,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 eachstate into a potential separate constitutional challenge of itssame-gender marriage ban. Those cases could be the new foundation fora sweeping change in popular American politics and thought and willperhaps pave the road for increased awareness of this human rightsissue. Leaving aside, as government should, objections that may beheld by particular religions, the case against same-gender marriage issimply that people are unaccustomed to it. Bigotry and prejudice stillexist in our evolving society, and traditionally people fear what isstrange and unfamiliar to them. One may argue that change should notbe pushed along hastily.
At the same time, it is an argument forlegalizing homosexual marriage through consensual politics as inDenmark, rather than by court order, 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. 2,1996—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 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 1996.Stoddard, Thomas, “Gay marriages: Make them legal”, Current Issues andEnduring Questions, Bedford Books, Boston, 1996.Wiener, “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 oflaws and recognition of same-sex marriages,” 109 Harv. L.
Rev. 2038,June 1996Levendosky, Charles, Greensboro News and Record, “CongressionalIntrusion 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 Marriageand Divorce Act