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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
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.
required couples wishing to marry to obtain a marriage license. While
the marriage license law did .