Unlike North Carolina, some states refused to accept interracial marriage under any circumstances, regardless of determining a domicile in state that recognized interracial marriage.
Hence, for couples that ventured to other states to marry, it remained unclear if their marriage would be considered valid in their home state. Would their children, if any, be considered legitimate? The inter state issues that were central to the non-acceptance of interracial marriage in the country are also seen in the debate over same-sex marriage.
The belief that states have the right to govern their own residents and have a strong interest in the matters of marriage dominates the discussion of same-sex marriage. Unlike interracial marriages, it was not uncommon for same-sex couples to marry in a state that recognizes same-sex marriage and then return to their state of domicile. While same-sex couples could domicile, uncertainties about recognition of their married status remained. It is unjust that the status of marriage changed when same sex couples crossed state lines, as some states denied same-sex marriages validated in another state, until the Obergefell decision.
Social acceptance of same-sex relationship, however, remains a challenge. Prior to Obergefell , thirteen states prohibited same-sex marriage, and there was no law to protect valid marriages from state to state National Conference of State Legislature, For example, at one point in time:. Many states, including California, Colorado, Illinois, and Florida, had statutes that define[d] or referre[d] to marriage as the union of a man and a woman.
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In other states, such as Minnesota, Kentucky, and Washington, as well as the District of Columbia, challenge[d] statutes that [did] not specify the sexual make-up of marriage partners have been rejected by courts Feldmeier, There were no laws to protect interstate same-sex marriage, a dilemma that was similar to earlier interstate interracial marriage. While same-sex marriage debates are seen as a question of LGBT rights, the parallel with inter-racial marriages shows a pattern that is structured within the notion of state rights.
The legal recognition of same-sex marriage did not become a leading, national conversation until when same-sex marriage won its first partial victory in its fight for marriage equality in Hawaii in Baehr v. This was the result of a challenge by three same-sex couples who were denied marriage licenses by the Director of the Department of Health because they did not meet the requirement of being opposite sexes.
thesis statement for research paper on same sex marriage
Although the trial court dismissed their challenge, they appealed to the Supreme Court of Hawaii seeking to have the same-sex exclusion for marriage deemed contrary to the Hawaiian State Constitution. However, the Court found sex-based classification for marriage unconstitutional and in violation of the equal protection clause of Article I, Section 5 of the Hawaii Constitution Kersch, It was thereby remanded to the trial court to determine if the state could meet the standard of strict scrutiny by upholding the requirement of opposite-sex couples to obtain a marriage license as a compelling state interest Kersch, This was indeed a major victory for same-sex marriage, as the Court established that sex based classification could not meet the standard of strict scrutiny.
While the judicial victory in Hawaii was short lived, as it was overridden by a statewide ballot reserving marriage to opposite-sex couples, it invigorated a conversation about sex-based classification in marriage laws. States questioned whether they would have to recognize same-sex marriage from Hawaii, or any other state. The Full Faith and Credit Act, primarily meant to facilitate debt collection for creditors, requires states to extend full faith and credit to out-of-state public acts, record and judicial proceedings Kersch, States have construed the purpose of this clause to include legislation that allows them to exclude marriages based on prejudice, not fact and law.
The tradition of lex loci celebration allows married couples to travel freely without concern that their marriage may be affected in another state.
Thus, the language of this clause does not provide a legal standard to resolve the issue of comity in the context of same-sex marriage. Moreover, although intention of good faith is to recognize a marriage as the domicile state would, a valid marriage may not be recognized in another state if the recognition would be contrary to a strong public policy of that state Feldmeier, Nevertheless, there is a strong argument for states to refer to the state where a marriage is celebrated to determine its validity:.
Whether based on notions of comity, full faith and credit, or public policy, states have generally held to this principle and evaluated the validity of marriages using the law of the state or country where the ceremony took place. Most of these legal opinions have denied same-sex marriages based on relaxed interpretations of equal protection requirements or traditional definitions of marriage Feldmeier, , p. Prior to the Baehr decision, twenty-one [states] had no cross-recognition statutes, fourteen had enacted the common-law rule that a marriage valid where celebrated is valid in their state, and sixteen states had so-called evasion statutes under which their residents could not marry elsewhere in order to avoid the marriage laws of their state Kersch, This allowed states to refuse to recognize same-sex marriages, without violating the provisions set forth by the Full Faith and Credit Act.
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Further, there was no consistency amongst the states involving interstate marriage. One of the functions of the Full Faith and Credit Act is to bring uniformity in the laws, however the clause was seen as moot due to the power of states to refuse recognition of a marriage if it was contrary to their public policy. Essentially, this meant that there were no laws or securities to ensure the validity of marriage from state to state for non-traditional heterosexual couples, and this not only limited the rights of same-sex couples, but also added duress.
Because marriage is a long term continuing relationship, couples should not have to re-determine the validity of marriage. In the past, in cases of interracial and consanguineous marriages, the courts have recognized marriages contrary to the strong public policy in instances of death and dissolution, especially with respect to issues of property and inheritance. Courts were willing to acknowledge these marriages because they were not enabling or allowing such marriage to continue, they were actually enforcing the end of the marriages Koppleman, Further, the cases typically involved specific parties, with no threat to the society as a whole.
These exceptions did not apply in the case of same-sex marriage, and hence, it became important to implement the Full Faith and Credit Act to engender legal and social acceptance of same-sex relationship in all the states Kersch, Additionally, it is important to note that the public policy exception applied to protect vulnerable parties in a relationship such as the young, the mentally incompetent, multiple wives or close family members. This should not extend to same sex couples Russay-Kidd, The public policy exception is grounded in a need to protect vulnerable individual in cases where one partner in the relationship needs protection or is not competent to understand the implications of the arrangement; this does not apply to same sex couples.
Two sections of DOMA stand out. Section Two of DOMA determined that no State would be required to give any effect to any judicial proceeding or record in respect to a relationship between persons of the same-sex that is treated as a marriage under the laws of another State.
Essentially, it empowered states to disregard same-sex marriage validated in another state, thus cancelling the operation of the Full Faith and Credit Clause. Moreover, DOMA also determined that marriage would be defined at a national level as a legal union between one man and one woman and that the word spouse referred only to a person of the opposite sex who is a husband or wife.
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As Russay-Kidd argues, DOMA undermined the traditional role of the States in defining marital status by creating an unprecedented federal definition of marriage Russay-Kidd, DOMA was not the only act by the government that restricted same-sex couples. It begins with the Supreme Court ruling in Bowers v. Hardwick , which criminalized sodomy, denying same sex couples the basic protection for intimate conduct in the privacy of their homes Bowers v Hardwick , Accordingly, by including a federal definition of marriage in DOMA the Congress claimed for itself authority it most likely did not possess Russay-Kidd, DOMA was also against the spirit of the general rule that has governed our experience on marriage, lex celebration , provided by the Full Faith and Credit Clause.
If DOMA had never been enacted, the state courts would have had to independently analyze whether or not same-sex marriage qualified as an exception to important public policy Russay-Kidd, Instead, DOMA allowed states to refuse recognition of same-sex marriage without such analysis. DOMA thus marked the modern segregation in terms of marriage.
Windsor , which radically changed the legal path with respect to recognition of same-sex marriage.
Your topic: Essay - Thesis Statement: Same sex
Edith Windsor filed a federal case after the death of her same-sex spouse, claiming federal estate tax exemption, as they were legally married in Ontario, Canada before moving to New York. Windsor, Justice Kennedy wrote:. The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity.
By seeking to displace this protection and treating those persons as living in marriages less respected than others, the federal statute is in violation of the Fifth Amendment United States v. The ruling was path breaking and opened the possibility of federal recognition to same-sex marriage as the highest federal court deemed marriage not inclusive of only a man a woman, thus setting a new tone United States v.
Following Windsor , in the Supreme Court in another landmark case, Obergefell v. Both Windsor and Obergefell thus paved a path to legal recognition of same-sex marriage, in the process also enabling social acceptance of LGBT rights. While much has to be achieved with respect to social acceptance, the courts have opened up possibilities. Obergefell v. Hodges and United States v.
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Windsor are pivotal to the national conversation on marriage equality and extended the efforts made in Loving v. Virginia , the first national case to bring attention to marriage equality by declaring that bans on interracial marriage were unconstitutional. Obergefell and Windsor not only opened the door to recognition of same sex marriage, but also, through protection of marriage equality as established in Loving , the right to choice and identity as affirmed in Perez v.
Sharp and the right to privacy as acknowledged by the court in McLaughlin and later, in Lawrence V Texas , and showed the historical parallels between interracial and same sex marriage. Loving is analogous to modern restrictions on same-sex marriage in many ways, as the decision essentially outlined that marriage is a fundamental right Mezey, As Susan G. The Court in Loving declared:.
Although the case addressed the Fourteenth Amendment and issues of race, Loving clearly declares marriage as a fundamental right, and hence remains foundational to the discussion of same-sex marriage. It is alarming and concerning that despite this legal precedent, the rights of same-sex couples were infringed. As noted, although Loving guaranteed a fundamental right to marry, it did not discuss the questions of identity based discrimination.
The question of identity, however, had received some recognition in , Perez v. Sharp , a case involving an interracial couple that petitioned the California Supreme Court for a marriage license. Sharp , Perez brought to light questions of identity-based marriage restrictions in a way that Loving later failed to do Lenhardt, The right to privacy is also central to same-sex marriage debates in the country, along with marriage equality and identity based rights. Texas , which overruled Bowers v.
Hardwick , legitimized the right to privacy for same sex-couples. The petitioners in this case challenged a Texas statute that forbade sodomy. The US is a melting pot with freedom of religion, therefore this government should be hands off in terms of polygamy.