Introduction
In the contemporary world, gay marriage has been an issue that has seen the rise of arguments and controversies in the church today. This issue of gay marriage has been with a lot of debate. Many people have taken different positions on this matter.Most of the reasons that are given against gay marriages do not hold up. To many, it looks awkward to have two people of the same sex to get married. This is the case because Most of the arguments that are against gay marriage are based on religious principles. It is religious institutions that first brought this sensitive issue into public knowledge. Initially, there was only aa few people that could boldly talk about gay marriages and also take efforts to understad the controversis surrouding this issue. Religious people have often tried to impose their religion beliefs and standards in showing how far bad gay marriage is and in dispting its legalization.
If marriage is to be protected, then divorce should be made illegal in the United States. There are many divorces,which are undertaken in the United States alone annually. This is a threat to the institution of marriage and should be made illegal. The issue that is looked into here is that gay marriage has been condemned as a destroyer of the institution of marriage.There are many other activities which are a threat to the institution of marriage and yet nothing is being done to lessen their practice.Gay marriage should be legalized.
The Constitutional Convention of 1787 defined the relation of States in respect to managing the affairs of the Constitutional affairs of the people. The Full Faith and Credit Clause were coined to reduce tension. Congress amendment of the provision in 1948 gave each state a degree of autonomy in the formulation and interpretation of laws governing its subjects. As such, it states that “Acts, records and judicial proceedings or copies thereof will be regarded as having equal weight and significance and bear similar levels in all the United States courts, as per the circumstances and territories under which they were formed. This followed the unanimous passing of the Defense of Marriage Act under President Clinton’s tenure which “defined marriage in federal land and consequently gave power to the states to disapprove of marriage between same sex couples that was emerging I other states, even if the law had made the marriage sound credible. Marriage is recognized as a union between a man and a woman but controversy arises in the event that either of them can be regarded as either husband or wife.
Definition of the term marriage has been a consistent problem that the United States courts are facing. Courts have long struggled whether to issue a ruling that broadens the legal meaning of the term that has long been restricted to heterosexual couples alone. Those advocating the retention of such legislations such as DOMA and Proposition 8 argue that the whole fundamental lies in the hands of the public to decide their fate. Legal battles have emerged as to whether the Supreme Court has the constitutional jurisdiction to determine the legality of marriage-related legislations.
In this paper, we seek to research the diverse interpretation of marriage in different states especially California and Hawaii. In this way, we will derive a valid conclusion on the interpretation of the definition of marriage and how the judicial process and the constitution have impacted the results.
Problem statement
There is significant rebellion regarding gay marriage. There is confusion about the issue of marriage. There is a need to understand the doctrines about marriage and how they can be reconciled with law so that gay marriage can be argued and assessed fairly. Currently, there is lack of clear understanding regarding gay marriage. All the arguments have been in light and based on religious benchmarks. There is lack of a legal framework regarding this issue.
Purpose
This paper is mainly focused towards conducting an assessment of the current status of gayism and lesbianism and how states are responding to them. There are issues that should be looked into when handling gay marriage. The purpose is to look into the basis of rebellion of gay marriage and will assess the status of this law in the United States of America.
CAUSES IN HAWAII AND CARLIFORNIA
Hawaii
The first landmark ruling against same-sex marriages was delivered in the Supreme Court of Hawaii in 1993. In the ruling, the Supreme Court conveyed signals that curbing of union into marriage for couples of opposite sex was an unconditional step apart from instances where it could be done in the state interest that cannot be denied at all costs. Earlier in 1991, three couples, Baehr/Dancel, Rodrigues/Pregil, and Lagon/Melilio had applied for a marriage license with the DOH. The DOH denied to issue the license on the grounds that the marriage was invalid. The “HRS @ 572-1 restricted couples of the same sex from securing marriage licenses”. In the ruling of Baehr v. Lewin, the Supreme Court recognized that "the right to marry is part of the fundamental 'right of privacy' implicit in the Fourteenth Amendment's Due Process Clause. As such the court’s decision was shaped by the federal cases for guidance. This is enshrined in the constitutional right of right to equal protection. In the conclusion, the Supreme Court remanded the case back to the trial court for more scrutiny. The presumption that HRS 572-1 is unconstitutional was furthered by the 1996 ruling that the state did not its obligatory burden by6 proving that it had compelling interest to deny marriage licenses to same-sex partners. The passage of constitutional amendment giving powers to the legislature to limit marriage to heterosexual couples initiated a new front for the HRS 572-1legislation. The passage of constitutional amendment legislation to ban same sex marriages is the only barrier to equal protection statutes in the Hawaiian state law.
California
Recognition of marriage as a civil institution in California dates back to 1849. In its original form, marriage was regarded as an understanding between a man and a woman that could lead to a contract with the concerned parties having full authority to initiate such a contract . In a later date, the Defense of Marriage Act was enacted and hence the birth of Proposition 22 which is the basis for the legalization of marriage as a union between a man and a woman. The effects are not favorable to state policies. Various Court battles have emerged as a result challenging and upholding Proposition 22.
The Californian supreme court delivered as ruling in 2008 allowing the same-sex marriages. The ruling facilitated the union of same gender persons in marriage until a ballot initiative giving a new meaning to marriage took effect in 2008. The proposition 8 took effect in November 2008 illegalizing same sex unions. Part of the ruling read “The State has a legitimate interest in promoting the family structure and has proven most likely to foster an optimal environment for the rearing of children.” In a 2010 ruling, a federal district judge differed on the legality of Proposition 8 and ruled that it violated the equal protection provision enshrined in the United States constitution. The decision got an appeal and the implementation of the ruling got a delay until the 9th Circuit Court of Appeal issue a decision.
The ninth Circuit Court of Appeal later declined to rehear the case and passed it over to the Supreme Court for deliberation which is expected to be finalized by June 2013.
Analysis
The courts dilemma has been centered on the definition of marriage and how it can be interpreted as a basic fundamental right. The court’s jurisdiction is somewhat tested in this context. The Hawaiian Supreme court failed to reach a consensus on the Baehr case and remanded it to the trial court. In the ruling, the judge noted that "determining which rights are fundamental" must look not to "personal and private notions," but ral beliefs of the people. This is crucial into understanding how far fundamental a right can be that it cannot be traded off with the collective will of the people.
During a debate by the supreme court judges on the legitimacy of same sex marriage, a question was posed seeking explanation on the effects that same sex marriage could possibly have on the traditional view and hence definition of marriage. In responding to this, Cooper attributed his argument to the traditional definition of marriage, which he describes as an institution that was instituted to focus on procreation and bringing up of children. He also said that marriage was an initial scheme to cater for the emotional needs of the children (Johnson, 2012).
This response about the traditional definition of marriage was questioned by some of the judges of the Supreme Court. One of the reactions to such a definition of marriage was based on the opposite sex marriage between people that are sterile. Some judges were wondering if such marriages could soon be faced out because they did not meet the core purpose of procreation. Issues of people who get married in their old age and hence cannot get children were raised. These formed the basis of the questioning of the viability and reliability of the traditional definition of marriage as right and up o the task .
In responding to this, the opponents of same sex marriage pointed out that the constitution was clear on the issues of marriage and a couple that could not give birth to children could still be left to marry. They further explained that the state recognized the traditional marriage since most of the constitutional act concerning marriage was coined on such a definition. Opponents of the same sex marriage also base their arguments on the fact that the traditional marriage has no allowance for homosexuals, either by nature or by law (Johnson, 2012).
A response to this raised concerns that at the time of its adoption, he traditional marriage definition could have not included homosexuals since the issue had not arisen. Supporters of the same sex marriage critique the definition saying it should be adjusted to include the same sex marriage and cater for the needs of the children living with homosexual parents .
The overturn of the ruling on this case has so many challenges. For instance, the ruling immediately faced criticism from religious groups who felt same sex marriage is not marriage at all. Then there is the constitutional basis on which the ruling was made. All acts concerned with marriage are based on the traditional definition of marriage that does not recognize the homosexuals. Despite struggling to meet people’s needs and demands as their right, there is the morality aspect of the society. On these grounds, the ruling has faced so many challenges since it seems not to uphold the universally acceptable moral standards. Lastly, since the ruling was based on only nine states, it was not clear how all other states could be incorporated into the decision and how the marriage definition could be amended to suit the opponents and supporters of gay marriage and lesbianism .
This has a wide societal implication on the fact that same sex marriages are not so rooted on the minds and lives of the people that that they demand a fundamental recognition tag and neither would its restriction amount to injustice in the civil and political look.
The constitutional amendment of the Hawaii state constitution with a majority vote overturned the Supreme Court ruling and vested the state legislature with the power to impose the ban on same gender marriage.
Currently though, research has it that Hawaii settled on passing on a bill whose main aim is to legalize and legitimize marriage between people of a similar sex and equating such a marriage t the traditionally right marriage. The law has ended several years of court battles and is seen as a step forward towards true democracy and the preservation of human rights.
Before the November 2008 ruling, the California constitution gave exclusive rights to same-sex and opposite-sex marriages. The adoption of proposition 8 eliminated the right of same-sex marriages. In order to determine the validity of this regulation, the fundamental concern investigates how this clause violates the Fourteenth Amendment in the United States constitution.
The constitution stipulates the enactment of desirable laws that are legitimate and reasonable. It is thus important that laws treat all classes of people equally without discrimination. The Californian statutory law provided for the same rights for people engaged in both same sex and opposite-sex marriages to preserve marital status, state benefits, and other privileges. The enactment of proposition 8 however striped the same sex marriages these rights which they had previously received from the state and other parties. Interpretation of the proposition 8 amendment in their constitution through a ballot process may well serve to illustrate the will of the people. As such it states marriage as a union between a man and women.
Since 1996 when the federal Defense of Marriage Act came into force baring married gay and lesbian benefits from benefiting from federal tax waivers and other reimbursements, Americans have risen to defend and support legislation in equal measure. According to the 14th amendment of the Equal Protection Clause stipulates and "deny to any person within its jurisdiction the equal protection of the laws."Going by this definition, the courts have held that the requirement of equal protection concurrently applies to the federal governments as well. Although both entities are independent in their operations and judgment, it therefore remains extremely important to consider which among them delivers the most trustworthy definition of marriage and the preservation of human rights as enshrined in the constitution.
Different arguments emerging against the same-sex marriages are directed towards procreation and the intended purpose of marriage. Critics however cite infertility and other causes as the best consideration for the state to pursue if marriages were to be defining solely by the procreation of children. In that context, Proposition 8 serves no purpose and has no effect other than lessening the status and rights of the gay and lesbian citizens the state had sworn to uphold and protect.
Despite the nature of the final decision, it’s undisputable that the Supreme Court’s final say will be of great influence in the marriage institution. Perpetuation of the court’s say and ruling, as one scholar explores, will affect the democratic notions of the United States as one group’s decision through the ballot will determine the fundamental rights of a small group. The trend is not good for the welfare of the state. As state in the Hernandez v. Robles ruling, “The fundamental rights, once passed and instituted into the laws of the land may not under any circumstances be revoked despite historical provisions of occurrence of similar cases”.
It’s notable how far the United States president Barrack Obama together with his administrative unit effortlessly gave the case his back. This was under claims that it was within the powers of the Supreme Court to offer a solution and he could do no more than wait for the court’s final say. An analysis of the case renders so many options that could be settled on, including a compromise on the rights of the people as regards marriage. Likewise, the court can decide to address whether same-sex marriages contravene the Equal Protection Clause or recognize the constitutional right to marriage as a fundamental right and same-sex in extension.
Conclusion
The case is significant in national and federal context since it serves as a reference point for future marriages in States such as California, Hawaii and others. An overturn of the Proposition 8 would turn the California state into its past status; same-sex and opposite-sex marriage state. This may substantially shift focus to other states to review their legislations and alter the constitutionality of the Defense of Marriage Act.
The defense of Marriage Act exclusively confers powers to each and every state to make legislation concerning the acceptance or rejection of same sex marriages formed in other jurisdictions. As a result an amendment of the Full Faith and Credit Stature “No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or community group that accords some degree of respect to same sex relationships and marriage and is recognized in the laws governing such a people and their beliefs. 28 U.S.C. 1738C” shields different states from the dangers and effects of marriage that they do not consider favorable and which are foreign ideas from other states. A deeper interpretation of such laws poses restrictions against cancellation of any of the laws by any state. In case any of the laws is revoked, say the (1 U.S.C 7) concerning the definition of marriage impractical while the second component (28 U.S.C. 1738C) takes away the powers of individual state legal systems in the jurisdictions of same-sex marriages from other states.
The constitutionality of DOMA and regulations against same sex marriages which has not been satisfactorily been tested in the courts have lead to the enactment of Federal Management Amendment first introduced to congress in 2002. Due to the two thirds constitutional threshold, it has failed to affirm to the whole nation that marriage is between a man and a woman. The matter of same-sex marriages is a still a contentious issue in the amendment of the United States constitution. A significant number of the congress that sums to a total of two thirds have constantly rendered their support to this process and consequently received an endorsement by three fourths of the federal states. There is also an allowance for the federal states to protect their federal beliefs and values and the ideologies they hold regarding marriage.
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