Pravna regulativa istopolonih zajednica u Sjedinjenim Američkim Državama
Legal Regulation of Same-sex Partnership in the USA

Author(s): Zorica Mršević
Subject(s): Gender Studies, Civil Law, Human Rights and Humanitarian Law
Published by: Institut za uporedno pravo
Keywords: Civil Rights Act; legalization of same sex marriage; California; Connecticut; New York; Massachusetts; demographic capacity of same sex families
Summary/Abstract: The preface of the text comprises presentation of the Civil Rights Act of 1964 as a landmark legislation in the United States that outlawed segregation in the U.S. schools and public places. Based on this legacy, the history of legal recognition same sex partnerships and marriages was profiled in nineties by the decision of the Supreme Court of Hawaii. Through different expert findings and results of researches in the court was proved the following: Sexual orientation of parent doesn’t represent a circumstance that disqualifies such people a priori from being good, successful, responsible and suitable parents, full of suitable parental warmth and love; Gay and lesbian parents as well as same-sex couples have all the preconditions to rear children who are happy, healthy and well-adapted; Gays and lesbians as well as same-sex couples should have license to adopt children, take tutelage over them and to care for them and bring them up as healthy children, because it has been proved that they are capable of providing them necessary care; they are as much capable to be suitable parents as different-sex couples are. It hasn’t been proved that any more relevant differences in child rearing will originate as a result of the fact that the same-sex parents and not different-sex parents reared them. The author presented various research data showing that the same-sex parents’ community is the most similar to community composed of one biological parent of the child while the other one is stepfather or stepmother or child’s aunt or uncle. These are the family communities that have proved in practice as stable and totally adequate for child’s development. Therefore they should be allowed to the same-sex partners too, because they offer to children more complete family than single-parent family. Researches prove that single parents, adopted child parents, lesbian mothers and gay fathers, as well as same-sex couples can create family atmosphere and raise healthy and well-adapted children. The third part of the text presented the contemporary development of the same sex marriages. In California, the state Supreme Court decided in May in a historic ruling that gays and lesbians have a constitutional right to marry. The justices said the state’s ban on same-sex marriage violates the “fundamental constitutional right to form a family relationship.” Moreover, doctors can’t discriminate against gay people because they disapprove of homosexuality, the California Supreme Court ruled unanimously Aug. 18. The ruling came in the case of Benítez in San Diego County, who was denied assistance in getting pregnant by North Coast Women’s Care Medical Group, the only such facility covered by her insurance plan. Doctors at the group claimed their Christian beliefs prevented them from inseminating Benítez. But the court declared that constitutional protections for religious liberty do not excuse unlawful discrimination. Gov. David Paterson of New York has told state agencies to recognize samesex marriages performed in states and countries where they are legal, because failing to recognize gay marriages would violate the New York’s human rights law, That decision says that legal same-sex marriages performed in other jurisdictions are entitled to recognition in New York. Considering this decisions as not enough, hundreds of people marched across the Brooklyn Bridge Sept. 14 in support of marriage equality for same-sex couples. The New York state Assembly has passed a bill to legalize same-sex marriage but the measure has stalled in the state Senate. New York state recognizes the marriages of same-sex couples who marry in states and countries where they can — California, Massachusetts, Belgium, Canada, the Netherlands, Spain and South Africa. Same-sex couples won the right to marry in Connecticut in a historic ruling by the decision of the Supreme Court in October 2008. Citing the equal protection clause of the state constitution, the justices ruled that civil unions were discriminatory and that the state’s “understanding of marriage must yield to a more contemporary appreciation of the rights entitled to constitutional protection. “Interpreting our state constitutional provisions in accordance with firmly established equal protection principles leads inevitably to the conclusion that gay persons are entitled to marry the otherwise qualified same sex partner of their choice,” the majority wrote. “To decide otherwise would require us to apply one set of constitutional principles to gay persons and another to all others.” The court’s ruling today will likely be the final judicial judgment in the case because it is based on the state constitution, rather then the U.S. Constitution. But the often emotional, contentious debate over gay marriage is far from over in the United States of America.

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