The Legal Issues Behind Same Sex Marriage

In 2001, the Netherlands made an unequivocal stand on one of the most significant and controversial issues of the modern era as it legalized same sex marriage (SSM). With this landmark legislation, governments around the world came to consider SSM as a serious and viable issue with others gradually following suite. SSM was legalized next in four other countries, Belgium in 2003, Spain in 2005, Canada in 2005 and South Africa in 2006.

While the issue of SSM can also have its religious and social aspects, its legal aspect has commanded much of the world's attention. Opponents of SSM fear that with its growing acceptance and possible legalization, it may come to completely change the legal definition of marriage. Although it is virtually impossible to arrive at a universal legal definition of marriage, it is understood that based solely on observation, much of the world has come to view marriage as a legally sanctioned exclusive union between one man and one woman. With the advent of SSM, this definition may change forever as the provision on one man and one woman evolves into simply just two individuals regardless of sexual orientation.

The hoopla over SSM however is more than just over what terms should be written in the law books. The debate has been raging more because of the fight for what SSM advocates believe is their constitutional right. In democratic countries, the right to equal protection under the law is an all important part of the constitution. By denying same sex couples to marry, it is argued that their right to equal protection has also been denied.

In many countries, the right to equal protection would also necessarily translate to according equal benefits to its citizens. Married couples therefore, by virtue of their civil status alone are given benefits to assist them in furthering the states natural responsibility towards procreation and the rearing of families. In the United States, 1,000 federal and 400 state benefits covering taxes, insurance and health among others, are given to legally married couples. Same sex couples, because they cannot marry cannot take advantage of these benefits.

In the US, it is only in Massachusetts that same sex couples may marry and acquire the same legal status as heterosexual married couples. Since they are covered only by state law however, they are not eligible for federal rights.

Other countries like Germany, Sweden, Portugal and Finland have decided to respond to the issue by enacting laws covering civil unions or partnerships and registered partnerships. In legal arrangements like these, same sex couples may be granted some of the rights of heterosexual married couples but not all.

Although some may choose to regard civil union laws as already an achievement and a positive indication of society and the law's changing views towards same sex unions, the more aggressive supporters are not entirely happy with civil unions. In reality, civil unions simply seek to highlight even more the segregation of same sex couples and heterosexual couples.

While at first glance the legal issues surrounding SSM may simply be condensed to a battle for benefits, it is actually more than that. It is also a battle of rights. The issues may not be resolved universally in the next years but the fact that SSM is being debated upon is already a good portent for its advocates.