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 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.Order now
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 .