【作者】 孙媛媛；

【导师】 黄文艺；

【作者基本信息】 吉林大学 ， 法学理论， 2008， 硕士

【摘要】 婚姻是一种重要的制度,它不仅可以使婚姻双方在法律上获得很大的利益,而且在文化中也具有一定的象征意义,并且历来被认为是男女的结合。但随着社会的发展,人们的道德观日益趋向于多元化、自由化以及人权观念日渐深入人心,同性恋者也开始争取结婚的权利。“在法律上是否应该允许同性婚姻”已经成为同性恋研究的核心问题之一。现在有一些欧洲国家已经承认同性婚姻了,但相比之下美国就表现的不如欧洲国家那么宽容,在美国国内关于同性婚姻合法化争论持续升温,并已经成为司法、立法、政治上的敏感话题。文章将会以美国为标本,通过研究现实美国同性婚姻的立法、司法实践,以及评述美国同性恋支持者与反对者的理由,来重新看待同性婚姻合法性问题,从性道德观念、婚姻制度的发展趋势,同性婚姻纳入法律制度的意义以及同性恋权利斗争成果等方面来论证美国同性婚姻的合法性以及必要性。更多还原

【Abstract】 Along with rising up of the rights movement, people’s morality tends to multiplex day by day, as well as the human rights lie deeply embedded in people’s mind, gays and lesbians start to pursue their own equal status and rights. In the process of pursuing rights, same-sex marriage is always one of most controversial questions, and also is a hard-core question. And America is the country that argues on same-sex marriage most hotly. In America,the battle exists between the conservative religious influence and the gay and lesbian rights community, the both sides give many reasons to support their own viewpoints in order to persuade people to accept their mind and strive for their own benefits in American legislation, the judicature as well as politics and so on. In addition, America is a multiplex country, unique religious background, check and balance in political system and so on, which make people attitudes towards homosexuality as well as same-sex marriage so diverse. Therefore this thesis will comb and analyze argument about same-sex marriage, and then proves legitimacy of American same-sex marriage.The thesis consists of four parts:In the first part, the thesis elaborates the meaning and the form of same-sex marriage, then describes the background and development of the gay and lesbian rights movement. The thesis points out, in America, from legislative angle, we arrive at the meaning of same-sex marriage in double layers. In broad sense, the form of same-sex marriage can be divided into marriage and para-marriage which is similar to marriage such as civil union and so on. After defining the meaning of same-sex marriage, the thesis starts to study the background and development of the gay and lesbian rights movement. The thesis points out; the reason why the influence of the opponents is still formidable in American modern society is that America has unique religious background. From the time when America was established to the present, the majority people still believe Christianity. So the influence of Christianity in America is so deep. In addition, after the rising up of the counter-cultural movement, the traditional idea receives the destruction, the idea of freeness, democracy, equality starts to prevail. As minority community, gays and lesbians start to resist oppression and strive for the equal rights. Thus, American cultural is in a state of unbalance, new culture coexist with old culture, so debate over homosexuality and legitimacy of same-sex marriage is especially hot.In the second part, the thesis describes American legislative practice and judicial practice, and then compares and analyzes them. By comparing and analyzing the legislation and judicial precedent of Hawaii, Vermont, Massachusetts, the thesis arrives at some conclusions. The thesis points out, legislative practice and judicial practice of these states has some similarities. Same place performance in: Making use of check and balance in political system and the Equal Protection Clause of the United States Constitution, gays and lesbians all strive for the rights by courts. At the same time, the basis of judging which was taken by courts has also been changed, the courts start to invoke the Equal Protection Clause and apply strict scrutiny to marital legislation, require state to give a more stringent and reasonable reason why excludes the gay and lesbian couples from marriage, the reason is usually relevant to procreation and child-rearing, but the reason were refused. Thus, we find, in America, the legislative and judicial attitudes towards same-sex marriage became more and more tolerant. In addition, the differences performance in: Each state takes measures in different ways to protect the gay and lesbian couples, at present, only Massachusetts accepts the marriage between couples which consists of two men or two women, while other states usually take para-marriage, such as“civil union”and so on, to protect the gay and lesbian couples. In fact, para-marriage separates legal rights and legal status of marriage, just establishing rights for same-sex couples, so it is a compromise which increases discrimination against gays and lesbians.In the third part, the thesis elaborates and analyzes the debate over legitimacy of same-sex marriage in America. The thesis elaborates and analyzes opponent viewpoint, proponent viewpoint and Queer Theory. Same-sex marriage opponents who mainly compose traditional Christianity and the partial natural law scholars point out, the essence of marriage is procreation, the gay and lesbian couples cannot procreate children, so they cannot marry. Moreover, they advocate that, people should be monkish, none but procreation is the legitimate purpose of the sexual acts, the gay and lesbian couples cannot procreate children, so they are counter-natural; Same-sex marriage proponents prove the legitimacy of same-sex marriage in different ways, some proponents construe the legitimacy of same-sex marriage in the traditional frame. They said that, the homosexual phenomenon had been existing from ancient times, so it’s natural. Some other proponents provide the explanation for legitimacy of homosexuality and same-sex marriage in the sight of constructionism. They point out, homosexual and heterosexual identity is constructed by society, As a result of social and the cultural difference, the homosexual identity can exist in different forms. Moreover, marriage is also constructed by society. They advocate, no matter whatever identity or marriage, both have certain oppression, so we must reform the social institutions to eliminate the oppression; Queer Theory are more radical, they advocated, identity or marriage needs to be done away completely, so does the dualistic sex mode. At same time they summon people who were oppressed by traditional institutions to revolt. By analyzing the viewpoints and the theories, the thesis points out that the traditional theory cannot explain the question that is“since the homosexuality is counter-natural, why so many societies advocate it”. Moreover, along with sex separating from procreation, some new social phenomenon appearing and the people idea changing, the traditional moral which is against homosexuality and the same-sex marriage is getting more and more challenge. At same time, supporters in the traditional frame cannot jump out of the fetter of the traditional definition, and they failed to persuade to other people. Whenas, Queer Theory is so radical, that finally it will cause the struggle nihilism. So jumping out of the traditional frame, by taking constructionism to criticize the traditional homosexual role and the traditional marriage, the thesis points out, we should respect life style which homosexuality as minority chooses, and give them the same rights and protection with straight couples. At same time, we should break the traditional definition of marriage, define it over again and reform it, then allow the gay and lesbian couples to marry.In the fourth part, basing on foregoing content, the thesis ponders on legitimacy of same-sex marriage over again. The thesis points out that, firstly, considering the development trend of sexual morality and the changing of traditional marriage, we can see that gays and lesbians should have right to marry. Entering the modern times, people’s sexual morality idea becomes more and more secular, free and diverse; the homosexual act has been accepted by society gradually. Moreover, while the definition of marriage has also transformed along with social development, the focus of marital functions has transferred from procreation to sentiment. Now, procreation is not the essential factor of marriage, instead people pays more attention to sentimental factor of marriage, so the gay and lesbian couples should have rights to marry. Secondly, admitting same-sex marriage in legislation will give the gay and lesbian couples legal protection, it also makes society more equal. At same time, when more and more homosexual families start to adopt children, not accepting same-sex marriage will make these homosexual family lack protection, be bad for child-rearing and social stabilization, therefore from the angle of society, we must allow the gay and lesbian couples to marry. Thirdly, as the political power of the gay and lesbian community increases gradually, as gays and lesbians has obtains the success in the legislative practice and the judicial practice domain, we believe that gays and lesbians will obtain right to marry.更多还原