Constitutionality of Same Sex Marriage in the United States

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