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Same-Sex Marriage: A Historical Introduction

Within the already controversial realm of gay rights, one of the most controversial topics is same-sex marriage. In states across the country, same-sex couples are filing lawsuits seeking marriage equality.

Civil Rights

For some, the idea that same-sex couples should have the same matrimonial benefits as heterosexual couples is purely a question of civil rights. In the 1970s, civil rights leader Harvey Milk urged LGBT people to fight what he saw as "bigotry" by coming out. "I would like to see every gay doctor come out, every gay lawyer, every gay architect come out, stand up and let that world know," said Milk. "That would do more to end prejudice overnight than anybody would imagine...Only that way will we start to achieve our rights."

According to this argument, the constitutional concepts of equal protection and due process require that same-sex couples be treated no differently than heterosexual married couples.

Moral Rights and Family Values

Others see same-sex marriage as a moral question, and conclude that such unions violate traditional ethical values found in the Judeo-Christian moral tradition.

Another argument is that it undermines family values: heterosexual marriage is founded upon the need to procreate, but that is something same-sex couples cannot biologically do.

To counter this argument, those in favor of same-sex marriages note that elderly, disabled, and infertile people are free to marry without thought to procreation, and that advances in fertility technology have opened many paths to parenthood.

Legal Benefits of Marriage Equality

The debate over gay marriage is not confined to the marriage ceremony itself, although being allowed to participate legally in that rite drives much of the emotionalism of the debate. It also has a more pragmatic side, including issues such as whether same-sex couples should receive the same tax and estate advantages, the same rights to surviving children, the same community property rights, and the same health care benefits as heterosexual couples.

Although same-sex marriages have occurred privately for years, only recently has the issue been litigated. Only since 1993, with the Hawaii Supreme Court decision in Baehr v. Lewin, have gay rights supporters seen any measurable progress in state laws concerning homosexual marriage. Since that decision, both sides in the battle over same-sex marriage have experienced some victories and some setbacks.

Prop 8 and the Defense of Marriage Act (DOMA)

One of the most notable of the legal decisions regarding same-sex marriage occurred in 2013 when the U.S. Supreme Court ruled in United States v. Windsor that private parties lacked standing to defend a state constitutional amendment where the state itself refused to defend it. Therefore, the case was dismissed for lack of standing and Prop 8 remains invalid in California (which means same-sex couples may get married in the state).

Additionally, parts of the Defense of Marriage Act (DOMA) were ruled unconstitutional by the U.S. Supreme Court in 2013. DOMA was signed into law by President Bill Clinton in 1996 and barred federal recognition of same-sex marriages for purposes such as Social Security survivors' benefits, insurance benefits, immigration and tax filing. The court struck down the federal law because they said it denies same-sex couples the "equal liberty" guaranteed by the Fifth Amendment. In other words, this decision means that legally married same-sex couples are now entitled to the same federal benefits as married opposite sex couples.

Here are a few websites that contain additional information regarding the status of same sex marriages around the nation:

Consult an Experienced Family Law Attorney

Marriage laws are changing constantly. If you have a question about same-sex marriage, civil unions, or domestic partnership laws in your state, you may wish to contact a family law attorney for assistance. A good lawyer can advise you about the current state of the law and any special legal protections you may want to consider. Remember that it's important to speak to a lawyer familiar with the laws in your jurisdiction. Most offer free consultations, so your first step should be to contact an experienced family attorney.

Next Steps
Contact a qualified family law attorney to make sure
your rights are protected.
(e.g., Chicago, IL or 60611)

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