Same Sex Marriage

CONSTITUTIONALITY OF SAME SEX MARRIAGE IN THE UNITED STATES
Matthew Brigham
Legal Direct Study
Final Copy
December 17, 2004

Introduction
The proposed legalization of same-sex marriage is one of the most significant issues in current American family law. Right now it is one of the most strongly 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.
Supporting Side
The potential consequences, positive or negative, for children, parents, same-sex couples, families, social structure, public health, and the status of women are huge. Given the importance of the issue, the value of broad 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 public and religious beliefs, 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.
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 law 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 at the time 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 to 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. Because of this the circuit court upheld the heterosexuality marriage requirement as a matter of law and dismissed the plaintiffs ' challenges to it.
During the recent years 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 obey to pressure caused by the American people.
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 obvious 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 are 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 the Constitution for their freedoms they deny those same freedoms to not "normal" people because they would lose their social domination and could be changed. 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 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 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.
The 'full faith and credit ' clause has been prominent in the national controversy over gay marriage. The fear that the Hawaii Supreme Court would grant gay men and lesbians the right to marry and that the full-faith clause would compel other states to honor legal gay unions led to the passage of the federal Defense of Marriage Act and action in 17 state legislatures banning the recognition of gay marriage.
The full-faith clause was also recently invoked in a North Carolina lesbian custody battle in which a child 's biological mother fought to overturn an adoption ruling granted by the state of Washington to her one-time female partner. The mother 's attorney, noting the state 's prohibition against gay marriage, argued the adoption should be declared invalid in North Carolina because it violates "a decided policy against protecting homosexual families" in the state.
Defense attorneys argued that since the adoption of the couple 's child was conducted and finalized in Washington, the state of North Carolina is bound by the full-faith clause of the Constitution to abide by it. The judge eventually sided with the defense.
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 that current politicians think they can regulate like cell phones or TV 's is something short of appalling. 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-sex 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-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 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.
Opposition
There are two key reasons why the legal rights, benefits, and responsibilities of civil marriage should not be extended to same-sex couples. The first is that homosexual relationships are not marriage. They do not fit the minimum necessary condition for a marriage to exist--namely, the union of a man and a woman. The second is that homosexual relationships are harmful. Not only do they not provide the same benefits to society as heterosexual marriages, but their consequences are far more negative than positive. Either argument is sufficient to reject the claim that same-sex unions should be granted the legal status of marriage. (Peter Sprigg, Family Research Council)
Marriage is not a creation of the law. Marriage is a original human establishment that predates the law and the Constitution. It is an anthropological and sociological reality, not a legal one. Laws relating to marriage merely recognize and regulate an institution that already exists. If love and companionship were sufficient to define marriage, then there would be no reason to deny "marriage" to unions of a child and an adult, or an adult child and his or her aging parent, or to roommates who have no sexual relationship, or to groups rather than couples. Love and companionship are usually considered essential to marriage in our culture, but they are not sufficient to define it as an institution.
If you add a "sexual relationship" to love and companionship, most people would consider that a marriage. In a ruling handed down June 26, 2003, the U. S. Supreme Court declared in Lawrence v. Texas that sodomy laws (and any other laws restricting private sexual conduct between consenting adults) are unconstitutional. Some observers have suggested that this decision paves the way for same-sex "marriage." But in an ironic way, the Court 's rulings that sex need not be (legally) confined to marriage undermine any argument that sex alone is a defining characteristic of marriage. Something more must be required
Anthropologist Kingsley Davis has said, "The unique trait of what is commonly called marriage is social recognition and approval ... of a couple 's engaging in sexual intercourse and bearing and rearing children." Marriage scholar Maggie Gallagher says that "marriage across societies is a public sexual union that creates kinship obligations and sharing of resources between men, women, and the children their sexual union may produce." Canadian scholar Margaret A. Somerville says, "Through marriage our society marks out the relationship of two people who will together transmit human life to the next generation and nurture and protect that life." Another Canadian scholar, Paul Nathanson (who is himself a homosexual), has said, "Because heterosexuality is directly related to both reproduction and survival, ... every human society has had to promote it actively . ... Heterosexuality is always fostered by a cultural norm" that limits marriage to unions of men and women. He adds that people "are wrong in assuming that any society can do without it." (Paul Nathanson, Marriage Debate)
The fundamental "right to marry" is a right that rests with individuals, not with couples. Homosexual individuals already have exactly the same "right" to marry as anyone else. Marriage license applications do not inquire as to a person 's "sexual orientation." Many people who now identify themselves as homosexual have previously been in legal heterosexual marriages. On the other hand, many people who previously had homosexual relationships have now given up on that behavior and married persons of the opposite sex. If we define a "homosexual" as anyone who has ever experienced homosexual attractions, then both of these scenarios represent "homosexual" individuals who have exercised their right to be legally married.
While every individual person is free to get married, there is no person, either heterosexual or homosexual, who has ever had a legal right to marry simply any willing partner. Every person, whether they are heterosexual or homosexual, is subject to legal restrictions as to whom they are able to marry. To give an example; every person, regardless of sexual preference, is legally banned from marrying a child, a close blood relative, a person who is already married, or a person of the same sex. There is no discrimination here. This policy does not deny anyone the "equal protection of the laws" (as guaranteed by the Constitution), since these restrictions apply equally to every individual.
By allowing same-sex couple to marry you would change society 's concept of marriage. Marriage will open the door to homosexual adoption, which will simply lead to more children suffering the negative consequences of growing up without both a mother and a father.
Among homosexual men in particular, casual sex, rather than committed relationships, is the rule and not the exception. Even when they do enter into a more committed relationship, it is usually of relatively short duration. For example, a study of homosexual men in the Netherlands, which is one of the first countries in the world to legalize "marriage" for same-sex couples, published an article in the journal AIDS in 2003. They found that the average length of "steady partnerships" was not more than 2 years (Maria Xiridou et al., in AIDS 2003, 1029-1038).
Other surveys have shown that even homosexual men who are in "committed" relationships are not sexually faithful to each other. While infidelity among heterosexuals is much too common, it does not begin to compare to the rates among homosexual men. The 1994 National Health and Social Life Survey, which remains the most complete study of Americans ' sexual practices ever undertaken, found that 75 percent of married men and 90 percent of married women had been sexually faithful to their spouse. On the other hand, a major study of homosexual men in "committed" relationships found that only seven out of 156 had been sexually faithful, or 4.5 percent. The Dutch study cited above found that even homosexual men in "steady partnerships" had an average of eight "casual" sex partners per year.
Another need for same-sex marriage is that many couples don 't believe that they don 't have the right to visit their partner in the hospital. When this issue was raised during debate over the Defense of Marriage Act in 1996, the Family Research Council did an informal survey of nine hospitals in four states and the District of Columbia. None of the administrators surveyed could recall a single case in which a visitor was barred because of their homosexuality. Except when a doctor limits visitation for medical reasons, final authority over who may visit an adult patient rests with that patient. This is and should be the case regardless of the sexual orientation or marital status of the patient or the visitor. (Family Research Council)
The only situation in which there would be a possibility that the blood relatives of a patient might attempt to exclude the patient 's homosexual partner is if the patient is unable to express his or her wishes due to unconsciousness or mental incapacity. Homosexual partners concerned about this possibility can effectively prevent it by granting to one another a health care proxy (the legal right to make medical decisions for the patient) and a power of attorney (the right to make all legal decisions for another person). Marriage is not necessary for this. It is unthinkable that a hospital would exclude someone who holds the health care proxy and power of attorney for a patient from visiting that patient, except for medical reasons.
Some people feel as if same-sex couples do not even want to take on the responsibilities of marriage. A front-page article in the New York Times (August 31, 2003) reported that in the first 2 months after Ontario 's highest court legalized "marriage" for same-sex couples, fewer than 500 same-sex Canadian couples had taken out marriage licenses in Toronto, even though the city has over 6,000 such couples registered as permanent partners.
The Times reported, "Skepticism about marriage is a recurring refrain among Canadian gay couples," noting "many gays express the fear that it will undermine their notions of who they are. They say they want to maintain the unique aspects of their culture and their place at the edge of social change." Mitchel Raphael, the editor of a Toronto magazine, said, "I 'd be for marriage if I thought gay people would challenge and change the institution and not buy into the traditional meaning of 'till death do us part ' and monogamy forever." Rinaldo Walcott, a sociologist at the University of Tornoto, expressed, "Will queers now have to live with the heterosexual forms of guilt associated with something called cheating?" It appears that many homosexuals want the right to "marry" only because marriage constitutes society 's ultimate stamp of approval on a sexual relationship, not because they actually want to participate in the institution of marriage, as it has historically been understood.

Works Cited
Article IV, sec.1 United States Constitution
Baehr v.Miike, 910 P.2d 112 (Hawaii Jan 23, 1996)
Baehr v. Lewin, 852 P.2d 44, (Hawaii May 5, 1993)
"Gay marriages should be allowed, state judge rules," The Wall Street Journal, Dec. 4, 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. 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.
The Family Research Council. www.familyresearchcouncil.com
Gibson, "To love, honor, and build a life: A case for same-sex marriage," 23-SUM Human Rights. 22, Summer Edition 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 Edition 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
Defense of Marriage Act (DOMA), enacted 1996
Handbook on Uniform State Laws, United States Code, Uniform Marriage and Divorce Act
Bridget Maher, "Why Marriage Should Be Privileged in Public Policy," Insight No. 254 (Washington, DC: Family Research Council), April 16, 2003
Why Marriage Matters: Twenty-One Conclusions from the Social Sciences (New York: Institute for American Values, 2002); see www.americanvalues.org
Linda J. Waite and Maggie Gallagher, The Case for Marriage: Why Married People are Happier, Healthier, and Better Off Financially (New York:Doubleday, 2000)

Cited: Article IV, sec.1 United States Constitution Baehr v.Miike, 910 P.2d 112 (Hawaii Jan 23, 1996) Baehr v. Lewin, 852 P.2d 44, (Hawaii May 5, 1993) "Gay marriages should be allowed, state judge rules," The Wall Street Journal, Dec "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 "Announcing same-sex unions," The Boston Globe, Page 15A, Dec. 2, 1996 Bonauto, "Advising non-traditional families: A general introduction," OCT B Cox, Barbara "Same sex marriage and choice of law", 1994 Wisconsin Law Review. Reidinger, Paul, American Bar Association Journal, Oct 1996 Stoddard, Thomas, "Gay marriages: Make them legal", Current Issues and Enduring Questions, Bedford Books, Boston, 1996 Why Marriage Matters: Twenty-One Conclusions from the Social Sciences (New York: Institute for American Values, 2002); see www.americanvalues.org Linda J