Gay Marriage

Constitutionality of Same Sex Marriage in the United States

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 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