Study On The Legislation Of The Same-sex Marriage In Spain

The same-sex marriage is a sensitive and hot issue at the presenttimes. The homosexual phenomenon has existed since ancient times, andthere has different status in the different period and countries. Ingeneral, the homosexual experiences a process from crime and diseaseto normal. In spite there are some countries reject and commit a crimeto homosexual, the whole environment is more tolerant. There has been15countries and many districts which implement the same-sex marriage.In spite Holland and Belgium implement the same-sex marriage earlier,Spain is the first big country. The same-sex marriage is subversive tothe traditional model. There is some value of the reference in researchingthe legislation of the big country which has more bigger model inpopulation and area.Spain has17municipalities which had ruled the right of thehomosexual before2005. Until2004, the prime minister Zapatero admittedin the speech elective to push the legislation of same-sex marriage ifhe won the election. And then, the Zapatero government start the relativework about the legislation of same-sex marriage. There are many blocksin drafting and discussing for the bill. The People`s Party, religion, conservative social organization, scholars and the populace lodged aprotest and marched. But the position of the Zapatero government ispositive and tough in the discussing of the bill.It`s difficult to implement the bill of same-sex marriage for Spainwhich is a typical Catholic country, even the world is more tolerant.The important element is the open social culture in Spain. In spite Spainis effected deeply by the economic crisis and the unemployment rate ismore and more top, It insists firmly the human rights, freedom,dignityin the constitution.We should consider how to protect the homosexual in China. Accordingto a authoritative inquire, there are3%-5%homosexuals in the totalpopulation. In China, that`s not a minority and must be concerned. Butthere are many differences in China and Spain including the social culture,population, area and so on. I think we should adapt the “civil union”.That`s not opposed to the same-sex marriage, but conducive to implement.This dissertation has six chapters expect the introductory theoryand the epilogue. The introductory theory is about the significance ofthe subject, research technique, literature review, structure of thesis,innovation of thesis and shortcomings.Chapter one introduces the background of the legislation of thesame-sex marriage in Spain, including the factor of homosexual, socialenvironment and the process in Spain. There are rich materials abouthomosexual in the areas of medicine, biology, sociology. I don`t introduceit specifically. It deserves to be mentioned that the factor has no finalconclusion. In spite some scholars demonstrate essentialism, and someothers demonstrate construction. Usually, we consider both have influence,because they can`t refute the adverse opinion.The living environment of homosexual has a big change. The homosexualbehavior violates the Bible. So they were seemed crime in a long time until1822. In Franco`s time, the environment got into trouble again.In the end of20centry, with the development of law, the status changedmaterially. The homosexual adapted “against discrimination inemployment”,“against discrimination in offering goods and servicing”,“admitting the unregistered same-sex couple”,“admitting the registeredsame-sex couple or civil union”.Chapter two is about the process of the discussion of the same-sexbill. Zapatero government protocoled a draft and consult to some relativeinstitutions. In fact, that was not up to specification, but it couldreduce the oppositions in the formal discussion. The judiciary committee,council of state, royal institute gave some opinions. And the final draftis two parts. The first is adding a second item in the44clause of the<Spain civil Code>, which is “Marriage shall have the same requirementsand effects when both prospective spouses are of the same or differentgenders”. The second clause is permitting homosexual adopting.The both houses of congress discussed the same-sex marriage draftvehemently. The house of representatives passed the draft, but the senaterefused. Some days later, the house of representatives passed the draftagain. The supporters claim the “fundamental rights”,“dignity andthe freedom for developing character” and so on. The opponents citedthe32clause of the <Spain Constitution>, which ruled the subjects ofthe marriage were man and women, and they claimed that the same-sexmarriage subverted the value of the traditional marriage.They discussed nearly3months, and the same-sex bill took effectedin3rdJuly2005. In spite there are many elements in the process, thepolitical power is obvious.Chapter three is about the condition of implementing the same-sexbill. In spite the law ruled that the same-sex marriage adapt theconditions of the opposite-sex marriage, and got the same effectiveness, there were so many problem in implementing. At first, the judge who chargedthe registration of the same-sex marriage rejected the bill or they werecatholics. Second, the People`s Party put forward unconstitutionalcensorship to the constitution count. Third, they should complete privateinternational law, for example, the foreigners married in Spain. Becausethere were a few countries which passed the same-sex marriage bill.Certainly, the problems appeared obviously at the beginning of thelegislation. In recent years, the homosexual and the same-sex marriagewere not focused on. In spite that the leader of the People`s Party Rajoyrejected the bill in the discussion in2005, he did not put forward toreview the bill again when he held the post of the premier.Chapter four is some jurisprudence analysis about the same-sexmarriage in Spain. This part analyzed the stimulative and the obstructiveelements including the political power, the open social culture in Spain,the free sex culture and the people`s passionate character. The religiousrejection existed in the whole process of discussing and implementingthe bill. The homosexual behavior was in violation of the doctrines inthe Bible. The openness of the time is in favor of the passing of thebill. On the one hand, the young persons usually had a better educationwhich made them opener and more tolerant in spite90%of them were alsocatholics. On the other hand, the attitude of the religious and the membersof the clergy was changing. The new Pope Francis expressed the opinionthat he loved all the believers of the religion including homosexualand heterosexual. We can get it, the religious was coming back to thefunctions of the church gradually.Chapter five compares the legislation of same-sex marriage in Spain,Holland and Canada. Holland had tried many models for the same-sex couple,finally, adapted the same-sex marriage. It is different from many othercountries which have passed the bill, the right of adopting child for the homosexual in Holland had much dispute. Holland had a multi-partysystem, and no one had a absolute advantage. So the effect of politeelement in Holland was not huge as in Spain. The fundamental objectivewas to protect the fundamental rights in Holland and Spain. But therewere different national conditions and process of legislation. Forexample, how did the members of the Kingdom of the Netherlands admitthe same-sex marriage bill.Spain and Canada passed the same-sex bill at the same time. TheCatholic church meeting made many statement which accused them subvertingthe meaning of the traditional marriage. At first,the administrativeregion in Canada and Spain is similar. Canada belonged to federal system.The united province ruled the rights of homosexual by themself. And the17districts in Spain did. Second, in these provisions, most of themgave homosexual the rights to unite but not adopt. But they bothpermitted them adopting when they passed the bill in2005. A importantreason was that they wanted to give the absolute rights with heterosexual.Third, the legislation of same-sex marriage in Canada and Spain bothgot the support of the governing party.Chapter six is about the revelation to China from the legislationof Spain. I did1000inquires in East China, northeast, Central China,northwest, southwest, between18-25years old students. I set12questionsabout homosexual. The percent of objecting homosexual is27.9%. Thepercent is81.6%that who think homosexual shall have equal right inthe work and life. The percent of supporting civil union is59.2%andsupporting same-sex marriage is47.3%. These students are youth and havemore education. Most of them study in the big city. So the representativeis limit. In the other word, the percent is relative top.I think the civil union is good for homosexual in China now. Thatis not discrimination but available to implement. Because the most obstruction in passing the bill is that same-sex marriage subverts themeaning of the traditional one. So, the civil union will get a topersupport rate. Certainly, there are the same rights between the two system.The epilogue concludes the experience of the legislation of the billin Spain, and put forward the relative system in China. In spite, thereis big different culture between Spain and China, the legal issue ofhomosexual is at the level of constitutional right. Expect the Islandcountries, every countries can adopt a common legal principle. At thesame time, we must see the attitude of Chinese to homosexual is notpositive.China is different from Holland, Spain, Canada in discussing thebill. Because, now we can analyze the exist experiences and lessons,and adapt a available model. We can adapt civil union all the time, aslong as it has the same rights with marriage. There is no need to evaluatewhether the social is open and inclusive. Civil union can protect thedignity, equal rights the legal status, and carry the emotional valueof the union. There is no use to explain overstated the conception ofmarriage. However at this time, the most import thing is to protect therights of homosexual. Civil union is a feasible way which can avoid theconflict with the traditional marriage.There are two clues in the dissertation. The primary issue is thelegislation of the bill in Spain. And the other one is which is the bestsystem in China according to compare Spain, Holland and Canada. Becausewe can conclude the legal principle and executive problems. Law is morethan a rule. The legislation of the bill reflects the different socialculture, legal concept and the implement of Human Right. So, we mustexplore the deep spirit and custom behind the legislation.