The proposed legalization of same-sex marriage is

one of themost 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.

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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 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
credit;
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,
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 Law
Review.


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

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