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Rights of Gays and Lesbians

Same-sex Marriage And Custody

While the Supreme Court has long recognized that the right to marry is a fundamental right, the right to a same-sex marriage had been universally rejected by courts until Baehr v. Miike in 1996. The Hawaii Circuit Court held that the failure to legalize same-sex marriages violates the Equal Protection Clause of the Hawaii constitution. Anticipating that same-sex marriage would become legal, Congress passed the Defense of Marriage Act (DOMA) in 1996, which defines "marriage" and "spouse" under federal law to include only partners of the opposite sex. This classification excludes same-sex partners from federal benefits. Another provision of DOMA provides is that a state does not have to recognize same-sex marriages performed in other states. This provision will likely be challenged constitutionally on the grounds that it violates the Full Faith and Credit Clause of Article IV, which says that "Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state." No constitutional challenges to DOMA have been filed in court to date.

Battles for custody and adoption of children follow a similar path. In 1995 a New York Court of Appeals issued a ruling allowing co-parent adoptions. Then in July, 1998, a New York high court removed two boys from their father's custody because of the father's sexual orientation. The judge ruled the gay household would likely create emotional difficulty for the children.

Additional topics

Law Library - American Law and Legal InformationGreat American Court CasesRights of Gays and Lesbians - Gay And Lesbian Civil Rights, Employment And School Fairness, Serving In The Armed Forces, Same-sex Marriage And Custody