. ense of any kind in one state, it is upheld in the other states as well. It also notes that congress has the right to define the effect in which one state’s laws act upon another state (Kersch, 1996). This is not meant to take away all of the state’s rights, just that the state has to present reasons why it will not accept another states laws. DOMA takes away that aspect of the Full Faith and Credit Clause.
The normal rule for interstate marriage is to uphold the marriage as long as it is valid where it was originally celebrated (Kersch, 1996). The Full Faith and Credit Clause keeps states from selectively discriminating based on how desirable or obnoxious the other states policy is. Thus a state could not apply an ostensibly non-content-based marriage evasion statute only to same-sex marriages, (Kramer, 1997, pp.
1967). Section One of the Fourteenth Amendment of the Constitution states: ‘..No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of the law; nor deny to any person within its jurisdiction the equal protection of the laws.’ This means that a state government cannot make a law which denies someone his or her rights.It is a same-sex couples right to liberty and the pursuit of happiness which is being denied by DOMA. According to the Full Faith and Credit clause of the Constitution, all of the states must recognize a license valid in one state as valid in theirs (Kersch, 1996).
The Defense of Marriage Act negates this, but only in the case of same-sex marriages. DOMA does not proclaim that all marriages are up to the state to value, only ones between homosexuals. This is discrimination pure and simple, which makes this a civil rights issue.If congress made a law stating that states do not have to recognize other state’s marriages involving two people of the same race, there would be an uproar. This is exactly what congress has done, except by way of homosexuals.
STATE STATUTES: All Americans are born with equal rights under the constitution, therefore sexual orientation should not be an exclusion to these rights. However, in many states anti same-sex marriage recognition statutes are being passed. By society voting on and passing the statutes, they are voicing their opinion that they are not ready to recognize marriage between same-sex couples. This is apparent by the growing numbers of states that are adding anti-recognition of same-sex marriages into law.
Lynn Bartels, a writer for the Rocky Mountain News, specifies that currently there are thirty-three states that have implemented statutes specifically stating that same-sex marriage will not be honored (2000). The reason state’s are passing anti-recognition statutes, is due to the fear of other states possibly recognizing same-sex marriages. If this happens then any state without a recognition statute in law would be obligated to honor the marriage. The passage of DOMA triggered off a wide spread of anti-recognition statutes across the state’s. The Federal government now made it legal for state’s to pass such statutes without fear of being sanctioned by the law.
The Lambda Legal Defense feels that these State and Federal anti-marriage bills are unconstitutional, divisive, wrong, and cruel (2000, pp.1). RECENT CHANGES: The recent blow up of anti recognition statutes and passing of DOMA stems from a court case in Hawaii. In 1990, three Hawaiian couples went to court stating that denying them the right to obtain marriage licenses is discriminatory (Sullivan, 1997). The lower division court in Hawaii ruled in the case of Baehr v.
Miike, that denying same-sex couples the right to obtain a marriage license is sex discrimination and violates their civil rights (Sullivan, 1997).Due to the overwhelming opponent response the case was appealed in the Supreme Court of Hawaii (American Civil Liberties Union, 2000). While the Supreme Court of Hawaii was hearing arguments for the case, opponents of same-sex marriage found a way to get an anti recognition statute on the ballot. The state of Hawaii passed the statute and the Court had no alternative but to deny the recognition of same-sex marriages (American Civil Liberties Union, 2000).
However, the case in Hawaii still had an enormous impact on many other states. While the case in Hawaii was in litigation for more than six years, many other states began to panic. The biggest scare to anti-same-sex advocates came in 1998 when the case of Baker v. The State of Vermont was heard by the Vermont Supreme Court (Partners Task Force for Gay and Lesbian Couples, 1999).The argument by the petitioners was the same argument that has always encompassed same-sex marriage. However, the outcome this time was very different. After the Court’s ruling, state after state began joining the ban wagon of anti-recognition statutes, including my home state of Colorado (Newsum, 2000). However, Vermont did not legalize same-sex marriage, they offered an alternative called civil union.
As of December 20, 1999 the state of Vermont has opened the door for same-sex unions (National Gay and Lesbian Task Force, 1999). Basically, Vermont has decided that same-sex couples must be given the same rights as opposite-sex married couples.The Supreme Court of Vermont ruled that denying same-sex couples the same rights and protections as opposite-sex couples is unconstitutional and inhumane (National Gay and Lesbian Task Force, 1999). Therefore, the Court ordered the legislature to draw up a plan that would offer exactly the same benefits and rights to same-sex couples, as opposite-sex couples are afforded. The legislature did as the Court said and decided on the label of civil union.
Civil union provides same-sex couples with the same benefits as opposite-sex married couples, such as inheritance rights, tax privileges, medical decisions, and so on (National Gay and Lesbian Task Force, 1999). Vermont issues county licenses to these partners and they are recognized in the eyes of the state.The passing of civil union required changing over 300 statutes in Vermont (Gender Talk Radio, 2000).
Every statute that expressed anything to do with marriage, now also states civil union as well. With civil union, same-sex couples get their protection and benefits, as opposite-sex couples get to keep their marriage word. Bill Lippert, Vermont state representative and vice chair of the house judiciary committee, is the only openly gay member of the state house of representatives and was interviewed by Gender Talk Radio. Lippert was an advocate for same-sex marriage when it was brought in front of the Vermont Court and pushed the committee to incorporate the word ‘marriage’. However, he claims to be happy that benefits would finally be afforded to same-sex couples, even if it isn’t called marriage (Gender Talk Radio, 2000).Even though the state of Vermont recognizes the civil union of same-sex partners, it is still too early to know whether or not other states will recognize the unions. CONCLUSION: Vermont is the first to ever legalize marriage benefits to same-sex couples. What society fails to see is that the argument to legalize same-sex marriage is invalid mainly because it is already legal.
Each individual person interprets the law differently and may do so. Through my research I believe same-sex marriage is legal due to Supreme Court opinions, Full Faith and Credit Clause, and most importantly our Constitution.It should no longer be an argument on whether same-sex marriage should be legalized, but rather, should it be recognized by the law. Under our constitution, every law abiding citizen must receive equal protection under the law. This means that America can not simply deny rights based on sexual orientation because it violates equal protection. The Defense of Marriage Act is a violation of equal protection and as such is unconstitutional. According to the Full Faith and Credit clause of the Constitution, all of the states must recognize a license valid in one state as valid in theirs.
The United States Supreme Court has made clear that marriage is a fundamental right and that discrimination by classes is unconstitutional. However, as Americans we continue to contradict ourselves through our laws. Our nation was built and has always been based on the fundamental principles of freedom expressed in the Declaration of Independence and through our Constitution. The opponents of homosexual marriage need to remember what freedom means to America and understand the significance of setting a precedent that denies that freedom. Any African-American should understand the importance of upholding the fundamental beliefs on which America was based.
It was these fundamental beliefs that abolished slavery, and called for equal rights.Any woman should understand the importance of upholding these fundamental beliefs. It was these beliefs that have worked toward ending womans suffrage. Any parent, any working man, any American, should understand the importance of our fundamental beliefs. Without them, there is a never-endeding list of atrocities that could be committed: cruel and unusual punishment, sweatshop labor, unsafe work standards, unfair work practices, and on and on.
To deny any one of our beliefs even once, sets a precedent for them to be denied again and again, to anyone. Without our constitutional rights, America simply would not be the free nation that it is today. Bibliography References American Civil Liberties Union.
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