Family Law Term Paper

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Family Law and Gay and Lesbian Marriage

What makes a marriage, in the eyes of society and the eyes of the law? As this paper is being written, President George W. Bush has called for a constitutional amendment upholding the idea that marriage is an institutional bond that can exist only between a man and a woman. Somewhat belying his claim that this idea is purely legal in its nature, however, is his stress that a constitutional amendment is required to sustain this principle on a federal level. Bush is essentially attempting to pass judgment to all of the state legislatures of the land, forcing them to comply with upholding a singular and specific ideal regarding what constitutes a marriage. This goes against some of the past, predominant legal strictures of this nation, which has left defining and limiting marriage to states and communities, rather than to the nation as a whole. Also, recent decisions by the United States Supreme Court and the Supreme Court of Massachusetts, as well as the current policy of the City of San Francisco that have extended privacy rights to gays and lesbians also call into question what constitutes a marriage, and what unions between partners are worthy of the state and federal government's institutional protection. .

Marrying: Loving v. Virginia and Singh v. Singh

Critics argue that the extension of such rights to gay unions will lead to increased liberalization of policies in other areas of family law. They have focused the national lens on the question to what extent the state should regulate family privacy and if marriage is a private or a public act. Beyond the limits of personal privacy behind closed doors and between consenting adults, the issue of marriage and family expands the privacy debate as to what constitutes a family and if the law's decisions regarding what constitutes a marriage are an intrusion or a protection of family privacy. The idea of a 'family' or a 'union' presumably has larger societal implications beyond the mere, momentary closeness of individuals on a personal, individual basis of sexual choice. Or, as stated by scholar Judith Areen, in very simple terms, "should society regulate marriage?" (Areen, 2-3) Is marriage an institution of personal happiness of the rights of two autonomous individuals, or something beyond this, with public implications?

Singh v. Singh is a recent example of blood relations and how cultural customs may deviate from the legal, incest regulations of the United States. In cases of incest, even in this particular legal case the two individuals were unaware of their blood relation when they wed, the state claims an interest in terms of public health, to regulate the ability of individuals to wed so that they do not produce children that are in medical danger, nor do they flout the societal norms of the specific, American cultural context. The state still has the right in some insistences to bar individuals from the union of wedlock. If this were not the case, then one would not be barred from marrying while underage, or from marrying a family member deemed to be too close in birth order. Nor would one be required to obtain a marriage license from the state and test one's blood for sexually transmitted diseases, among other things, before becoming wed.

State laws regarding marriage can also implicate legislation on the federal level. Perhaps the first, controversial case to truly grapple with the federal and state issues of the societal implications of individual choice regarding marriage was that of Loving v. Virginia, a case that dealt with the issue of what was then termed miscegenation, or interracial marriage. (Arleen, 46-48). The case dealt with the Lovings, who were married in Washington D.C. because Virginia's anti-miscegenation statues barred the formalization of their union. After returning to Virginia they were prosecuted and convicted of violating that state's anti-miscegenation laws. They returned to where they had married, in Washington D.C., to avoid prosecution, to live. At the time, the case highlighted the difficulty in having different laws about who might marry whom. A couple that marries in one state may return to their home state, or may move to a state that bars their union. Later, U.S. Supreme Court unanimously ruled Virginia's law unconstitutional. In 1967 the sixteen states that still had anti-miscegenation laws on their books were forced to erase them. Loving v. Virginia demonstrated the difficulty in making marriage a community-by-community decision, as the idea that a marriage law might be unconstitutional, because it bars certain individuals from marrying other individuals in a discriminatory fashion, could violate the equal protection clause of the constitution and fundamentally impact the laws of all the states of the union.

Marriage: McGuire v. McGuire and Cheshire Medical Center v. Holbrook

The analogy between gay marriage and interracial marriage seems clear to many gay legal activists in favor of extending protections to gay marriage unions. Why cannot two same-sex parties marry in Hawaii, for example, and return to their home life, thus wed, in Alabama? Even if the couple is not prosecuted in Alabama for doing so, as were the Lovings in Virginia, that particular state will not guarantee both partners of the marriage the same rights as married partners of different genders.

For instance, both will not get the benefits of health coverage, even if the employers of one individual agree that the health coverage of his or her married partner would otherwise be covered. Thus, are not gays being discriminated against in an unequal fashion, as if the couple wed in Hawaii and were members of different sexes, they would receive health benefits and tax benefits? The privacy and right of individuals to decide whom they will marry thus impacts private and public extensions of coverage and implications of who constitutes a family. In Cheshire Medical Center v. Holbrook, the equal protection clause was expanded to apply to both spouses and the medical provider in question must first seek payment from the spouse receiving services in a fashion not dependant on gender, an argument in favor of the lack of the importance of gender in extending such benefits. (Areen 326-328)

Perhaps, from neither pro-nor anti-gay marital perspectives, marriage cannot be viewed as a purely a private bond when it begins to embrace such practicalities as medical coverage and childcare. Cases such as McGuire v. McGuire highlight the fact that individuals do not always impact simply their own lives, when marrying but also the interests of the child and guardianship issues that result. (Areen 98-103)

Divorce Hughes v. Hughes and issues pertaining Covenant Marriage

The religious protection of marriage is another argument often posed against gay unions. However, many religions now allow such unions, and gay and lesbian clergy exist within the fold of many religious institutions. In fact, it could easily be argued as well that the prohibitions impact personal religious freedoms and run contrary to the first amendment's allowance for individuals to practice their faith in the way that they deem best. For instance, idea of covenant or common law marriage, which is a marriage that occurs not in a church, but as the result of a couple living together as man and wife in the public eye for certain durations of time, deemed by the law to be sufficient suggests to that marriage is not simply an institutional bond created by either the clergy or the state, but a commitment of two individuals. Why cannot, gay activists argue, two individuals give such a commitment to one another in a ceremonial form and be guaranteed the legal and financial protections of wedlock, particularly when they have lived with a partner for so long, and if their union demonstrates an equal commitment to one another, on parity with heterosexual couples whom are wed in a common law fashion and must be divorced after such a union? (Areen 398)

This also gives rise to the fact, that in terms of the issue of divorce, when the emotional ties that brought a couple together have sundered, the need for state intervention becomes particularly manifest. Essentially, the love or bond that caused the sense of a tie or marriage has ended, and all that remains are the legal strictures and personal property that is the fruits of the couple's union. When a couple is a same-sex union this issue can become especially thorny. One of the arguments for the importance of marriage beyond personal privacy is the need to divvy up such physical fruits of a union and to bestow appropriate child protections as dual custody. A point in favor of wholesale allowance of gay marriage is that it makes this easier, rather than more difficult.

There is also the issue that equity, regardless of gender within a marriage, is stressed thus not only in health coverage and other marriage privileges and rights, but also in the institution of divorce and the divvying up of commonly used and shared property. For instance, Hughes v. Hughes, the husband in…

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