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Rules, Laws and Regulations around Legalization of Same-sex Marriage

Public surveys have shown an increasing number of same-sex marriages and their acceptance throughout American society. It is widely believed that marriages cannot exist apart from a country or a state no matter what kinds of marriages they are. The marriages existence is predicated upon a relationship of individuals and the relationship to the third parties. There is an idea that the prohibition against same-sex marriages lies in the nature of the marriage institution since the essential aspects of marriage, as Alsgaard explains, are sex and reproduction. “Although the long-existing link between marriage and procreation has begun to fade, it will not be until same-sex marriage is fully legalized that opposite-sex marriage can fundamentally change”. The author goes on to invite feminists and advocates of same-sex marriage to work together in order to continue to make marriage relevant for the modern society. In spite of wide acceptance of same-sex relations and marriages, there are those who are against the idea of legalizing same-sex marriages as “…recognizing marriages between same-sex partners will bring about the “end” of the institution of marriage in several undesirable ways”. Such marriages may be harmful to the child’s well-being as children’s best interests can be served by gay and lesbian parents.

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Marriage is considered to be “…one of the oldest social, religious and financial forms of partnership, which marks one of the most formative events in one’s life”. Since the issue of same-sex marriage has been in the media, it has been made to sound as though this is the first change that has happened to the institution of marriage when in reality, the first hit that traditional marriage had to take was when the idea of common law marriage had come into the media. After the legalization of same-sex marriage, there had to be amendments made to the Civil Marriage Act in eight federal statutes, which included the Canada Business Corporations Act, the Divorce Act and the Income Tax Act, to alter the definition of “spouse” in them. Nevertheless, there is still an emphasis that homosexuals, unlike other marginalized and discriminated groups, cannot rely on an extension of the legislation concerning discrimination. It is believed that those philosophical justifications for discrimination are invalid from the methodological point of view and that civil rights legislation should protect irrespective of sexual orientation. Rauch says that the amendment related to a federal marriage would undermine the human rights. He is convinced that the states would be striped by marriage amendments of the power in order to enact same-sex relationships and marriages even if the residents voted in favor of it. The US Constitution has made amendments deny such minorities as gays and lesbians the right to marry as it would be a departure form the traditional amendment that does not limit them. 

Sexuality is socially constructed as the identification of what is sexual depends on the social and historical influences. Walker (1994) states, “there is nothing that is inherently 'sexual' in human life. An activity is only sexual because society or groups within society gives it that meaning...”. According to Walker, the question of consent is irrelevant while speaking about the regulation of same-sex activities. Marginalization of sexual minorities in the human rights is combined by three factors such as continuing stigma, poor organization and ineffective advocacy within the community of gays and the persistence to block initiatives. As Canada and Australia are at the forefront of change in favor of same-sex marriages, there are evident prospects for getting rights of gays and lesbians on the international agenda in the future. Tasmania is the only state in Australia that criminalizes homosexual acts. It is a violation of international human rights instruments which is supported by Australia. Opponents of this issue argue that Tasmanians have a duty to support and preserve such moral values. Twomey is convinced that Australia would not have found itself in the challenge of its international human rights reputation. The author argues that the US will experience individuals’ procession, procession of those who seek justice via the Committee of United Nations Human Rights. The legalization of same-sex marriages in Canada was caused by several cases. There were seven same-sex couples that first applied for civil marriage in 2001, the clerk at Toronto’s city hall refused to issue them but still transferred their applications to the Divisional Court of Ontario Superior Court of Justice. It took four years for those seven cases to get recognized, the start of the process was in 2001, and it ended in 2005.

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Wilets examines international sphere of law from the point of view of a mechanism for bypassing the deadlock in the way of providing human rights protections for lesbians and gays. The author notes that international courts take into account rules of other courts when they make decisions. Social support of same-sex couples has grown after they got married due to others around them who were more open to same-sex relationships. Macintosh has researched that the satisfaction of relationship is higher in married same-sex couples than those who are in civil unions. “However, same-sex couples not in civil unions were more likely to have ended their relationship on three year follow-up than those who were in civil unions”. Same-sex couples appear to be less hesitant to disclose their relationship. The author indicates that “more than 80% of participants indicated that being in a same-sex marriage had caused them to be more likely to come out to co-workers and health care providers”.

According to many commentators, same-sex couples will probably have access to the opportunity to marry and have that marriage recognized by the State. As a rule, when making decisions, courts look to political considerations and social policy whereas advocates need to convince courts to accept same-sex marriage. But many couples dream about wedding ceremonies in church, but it can still be problem for some same-sex couples in the United States despite the fact that at the last General Convention, Bishops around the country were authorized to move churches on the issue of same-sex marriages.   

Uniqueness and variation in socio-legal conditions are reflected in the different perceptions of issues that constitute concern among the same-sex community. There exist five categories which justify same-sex marriages, among them the procreation argument, the traditional and historical argument, preservation of family and society, the protection of children, and the pragmatic argument. Rose claims that in most parts of the world, a family policy is usually used as the government’s attempt to regulate the lives of citizens and the relations among them. For example, in China, there is a one-child policy, in Canada the family policy refers to the upbringing of children. Approximately 40% of married gay and lesbian couples are living with either a child or another family member.

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Hertz comments the problem of divorce in today’s culture. With the onset of the same-sex marriage, for the first time many couples were unable to file for a divorce. This was due to the absence of a legal process as to how same-sex couples should be divorced. One of the reasons that same-sex couples relationships end in divorce, as Hertz stated, is because they rushed to the opportunity of getting married after it was legalized “…and others may have acted impulsively to take advantage of a newly-opened legal door as an act of political advocacy-rather than as a testament to the strength of their commitment”. Hertz goes onto to state some of the reasons as to why same-sex couples may want to obtain a judicial dissolution. The reasons are the same for same-sex couples as they would be for heterosexual married couples. Some of these reasons include blocking all connection with the ex-partner, division of all assets without any complications or conflicts and custody of any children that were in the picture. There are no potential boundaries in getting a divorce for same-sex couples in Canada, the process is the same as it would be for heterosexual couples. In the States, it may be a little more difficult, because not all states have legalized same-sex marriages. From the human point of view, “every member of the human community has the same basic rights including that of marriage and thus, if justice is to be served, no discrimination against any member of society, particularly persons engaged in loving, committed and stable relationships, should be permitted”.

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