미국연방대법원의 동성결혼 합헌판결에 대한 헌법적 고찰

• 영문명: Constitutional Analysis of the Supreme Court cases about same-sex marriage in the United States
• 발행기관: 충북대학교 법학연구소
• 저자명: 김웅규(Kim Woong Kyu)
• 간행물 정보: 『법학연구』第27卷 第1號, 277~306쪽, 전체 30쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2016.06.30

영문 초록

This Article is about the constitutional analysis of the supreme court cases about unconstitutionality of laws that limit civil marriage to couples in the United States. The movement to get civil marriage rights and benefits for same-sex couples in the United States began in the 1970s. In the case of Baker v. Nelson(1971), the Minnesota Supreme Court ruled that denying marriage licenses to same-sex couples did not violate the U.S. Constitution. the United States Supreme Court dismissed the appeal for want of a substantial federal question. The issue did not become popular in U.S. politics until the 1993 Hawaii Supreme Court decision in Baehr v. Lewin which said that state's prohibition is unconstitutional. The Defense of Marriage Act (DOMA) was enacted in 1996. DOMA's Section 2 says that no state need recognize the legal validity of a same-sex relationship even if recognized as marriage by another state. DOMA's Section 3 defined marriage for the purposes of federal law as a union of one man and one woman. DOMA has been challenged in the federal courts. During the 21st century, while several countries like Sweden, South Africa, Nethland etc, legalized marriage for same-sex couples, some states in the United States also passed bans against same-sex marriage, either legislatively or by referendum. On May 17, 2004, Massachusetts became the first U.S. state to legalize same-sex marriage following the Supreme Judicial Court's decision in Goodridge v. Department of Public Health. In 2012, Maine, Maryland, and Washington became the first states to legalize same-sex marriage through popular vote. This Article shall be divided into the following Parts ; Analysis of the (1) Hollingsworth v. Perry (2) United States v. Windsor (3) Obergefell v. Hodges and (4) Conclusion. Hollingsworth v. Perry challenged state bans on same-sex marriage. Perry v. Schwarzenegger in the U.S. District Court for the Northern District of California ruled that banning same-sex marriage violates equal protection under the law. This decision overturned the ballot initiative Proposition 8, which had banned same-sex marriage. the Supreme Court dismissed it on the ground that the defendants lacked standing to defend the state law on appeal and affirmed the district court’s ruling. In United States v. Windsor, The Supreme Court said that DOMA which barred federal recognition of same-sex marriages performed in states that permitted them is unconstitutional as a deprivation of the equal liberty of persons that is protected by the Fifth Amendment. Finally, In the case of Obergefell v. Hodges, The Supreme Court held that The right to marry is a fundamental right inherent in the liberty of the person, and under the Due Process and Equal Protection Clauses of the Fourteenth Amendment couples of the same-sex may not be deprived of that right and that liberty, overruling Baker v. Nelson, 409 U.S. 810, 93 S.Ct. 37, 34 L.Ed.2d 65, and abrogating Citizens for Equal Protection v. Bruning, 455 F.3d 859, Adams v. Howerton, 673 F.2d 1036, and other cases, and States must recognize lawful same-sex marriages performed in other States. Since Obergefell v. Hodges, married same-sex couples throughout the United States have equal access to all the federal benefits that married opposite-sex couples also have.

목차

Ⅰ. 서론

Ⅱ. Hollingsworth v. Perry사건

Ⅲ. United States v. Windsor 사건

Ⅳ. Obergefell v. Hodges 사건38)

Ⅴ. 결론

참고문헌

Abstract

키워드

동성결혼 적법절차 평등보호조항 결혼할 권리 동성애 same-sex marriage Due Process Obergefell v. Hodges United States v. Windsor Hollingsworth v. Perry.