Judicial Legalization Of The Same Sex Marriage example essay topic

INTRODUCTION 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 provocative issues. 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 may be obvious.

Marriage is much more than a commitment to love one another. Aside from societal and religious conventions, marriage entails legally imposed financial responsibility and legally authorized financial benefits. Marriage instantly provides a automatic legal succession of a deceased spouse's property, as well as pension and law, as well as promise in the eyes of the Lord, and their 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 homosexual relationship Marriage laws have changed throughout the years. In Western law, wives are now equal rather than subordinate partners; interracial marriage is now widely accepted, both in the statue and in society; and marital failure itself, rather than the fault of one partner, may be grounds in some states for a divorce. Societal changes have been felt in marriages over the past twenty-five years as divorce rates have increased. Proposals to legalize same-sex marriages 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 some same-sex couples. For example, with in 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 that homosexual marriages are given. In the Netherlands, the Parliament is considered domestic partnership status for same-sex couples, all the 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 a conjugal visits from same-sex partners.

An overwhelming majority of European nations have granted partial legal status to homosexual relationships. 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 countries, three states, five state agencies, and two federal agencies extended some benefits to, or registered for official purposes, same-sex 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, willis 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 the same-sex marriage have won a major judicial victory that could lead to the judicial legalization of the same-sex marriage or to legislation authorizing same-sex domestic partnership in that state. In 1993, the Hawaii Supreme Court, in Baehr vs. Lewin, vacated a state circuit court judgment dismissing same-sex discrimination under the state constitution's Equal Protection Clause and Equal Rights Amendment.

The above 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 the time, it used terms of gender that the Hawaii marriage license law is unconstitutional, as it prohibits same-sex marriage and allows state officials to deny marriage licenses to same-sex couples in 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 up held the homosexuality 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 parent's constitutional rights be the fourteenth amendment and that they could be recognized as a marriage. The court found that the state if Hawaii's constitution expressly discriminated against homosexuals and that because of Hawaii's anti-discrimination law they must revaluate 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 tights for gay and lesbian people. 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 (in the general public) that homosexuals should have marriage rights.

And still the courts voted for Baehr. The judiciary has its own mind on how to interpret the constitution, which is obviously very different than most of American popular beliefs. 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 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. 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 principals 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 of the United States. The full faith and credit clause of the United States 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 statuary scheme and is performed by a legal designated official, and because a marriage is an act by the state; 2) A marriage certificate is a "record" with a outlined legal effect, a showing that a marriage has been validly contracted, that the spouses meet the qualifications of the marriage statues, and they have duly entered matrimony. Public records of lesser consequence, such as birth certificates and automobile 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 homosexual couples in the name of the "normal" people who actively seek to define their definition of all. It is these "normal" people who create the definition of surplus repression and social domination. Yet as they cling to the Constitution for their freedoms they deny those same freedoms to not "normal" people because they would lose their social domination. Therefore it would seem they are afraid to change because of all the "hype" about homosexuals.

People do not except that the world does change. Excuses were seldom used to get a divorce by using the full faith and credit clause. Both partners in the marriage do not agree in the reality of there 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 of Nevada law allows one side to void their marriage if 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 of the marriage.

Even if the wife does not consent, the new state cannot do anything about its Legislation enacted by President Clinton from Senator Don Nickles of Nevada 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."Supports of DOOM also claim clear constitutional warrant, and that congress is exercising its own authority under Article IV to proscribe the manner in which the public acts, records, and judicial proceedings of every state, shall be proven". However it could seem that by allowing individual states to alter and change what the meaning of marriage is, it could create a disaster if 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 considered legal 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 considerably shifted from his platform in 1992.

This move was specifically designed to change his image among more conservative voters. It is also was apparent that this move was because a majority of conservative Americans still voted for Bob Dole in the 1996 Presidential election. Clinton thought that if he had changed his mind then maybe he could get some more votes from the conservatives, who he thought would vote for him with the new signing of the DOMA. Clinton, now that he has been reelected, partially under the front of a more moderate administration. Clinton should rethink on the policy of the social change and whether he wants to go out as the President that denied hundreds of thousands of homosexuals 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 as something short of appalling.

For who is to say what happiness can be created form wed lock 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 homosexual 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 therefore against the United States Constitution and once again the fourteenth amendment proclaiming all citizens equal. Fearing that the state may have to recognize same-sex marriages from Hawaii and Alaska, 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-sex 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-sex marriage ban. Those cases should 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 cases that are with same-sex marriages are not good for people because they are not use to hearing about it, and don't want to hear about it. At the same time, it is an argument for legalizing homosexual marriages through politics as in Denmark, rather than by court order, as may happen in Hawaii.