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Legality Of Baer V. Bryan Essay, Research Paper

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 upheld the heterosexuality marriage requirement as a matter of law and dismissed the plaintiffs’ challenges to it. Yet 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. By far, Baehr is the most positive step toward actual marriage rights for gay and lesbian people. As I briefly noted earlier, there is currently a high tolerance for homosexuals throughout the United States. However, judges do not need the popularity of the people on the Federal or circuit court level to make new precedent. The judiciary has long had its own mind on how to interpret the constitution, which is often very different than that of American popular belief. This is the principal reason that these judges are not elected by the people so that they do not have to bow to any type of pressures. Therefore, higher tolerance toward homosexuality does not automatically bring about changes in law. Legal arguments, not just public outcry, are needed in order to alter the Court s stance on same-sex marriage. A common justification for same-sex marriage is the Constitutional rights argument, which affirms that there is a fundamental constitutional right to marry, or a broader right of privacy for 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. Advocates argue 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, so should states be compelled now to recognize the fundamental right of homosexuals to do the same. An important point to note is that marriage recognition principles derived from choice-of-law and full-faith-and-credit rules are invoked to recognize same-sex Hawaiian marriages as valid in other states. The impact of Hawaii’s decision has immediately impacted 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 state2) 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 credit3) celebrating a marriage is a “judicial proceeding” where judges, court clerks, or justices of the peace perform the act of marriage This Article has often been cited as a reference point for interracial marriages in the south when those states did 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.

However, legislation enacted by President Clinton 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 that “Marriage means only a legal union between one man and one woman as husband and wife.” Supporters of DOMA also claim 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. The underlying principle in DOMA is that states now have the right to redefine what they feel is or is not appropriate behavior and decide what will or will not be allowed in their state. 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 in the land make such a profound statement about something which current politicians think they can regulate like tax or television is appalling. After all, who is to say what happiness can be created from wedlock but the people in the marriage itself? Leaving aside, as government should, objections that may be held by particular religions, the case against same-gender marriage is simply that people are unaccustomed to it. Bigotry and prejudice still exist in our evolving society, and traditionally people fear what is strange and unfamiliar to them. One may argue that change should not be pushed along hastily and, as in the case for interracial marriage, popular opinion will gradually affect legal interpretation. However, often it is that interpretation which directly affects sweeping change throughout the country. Numerous people in certain areas of the country still do not accept interracial marriage, but because of Loving v. Virginia toleration has grown tremendously. Without Supreme Court confirmation, where would racial equality stand today? This is an important question to ask as we examine the legalization of same-sex marriage and its impact on society.

Gay marriages should be allowed, state judge rules,” The Wall StreetJournal, Dec. 4, 1996, 1996″Hawaii judge ends gay marriage ban,” New York Times, Dec. 4, 1996″Hawaii ruling lifts ban on marriage of same-sex couples” Los AngelesTimes, Page 1A, 1996 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 LawReview. Gibson, “To love, honor, and build a life: A case for same-gender marriage,” 23-SUM Hum. Rts. 22, Summer 1996.Reidinger, Paul, American Bar Association Journal, Oct 1996.Stoddard, Thomas, “Gay marriages: Make them legal”, Current Issues andEnduring 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 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 1996Baehr v.Miike, 910 P.2d 112 (Hawaii Jan 23, 1996)Baehr v. Lewin, 852 P.2d 44, (Hawaii May 5, 1993) Defense of Marriage Act (DOMA), enacted 1996Article

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