Research On Legal Issues Of Same-sex Marriage

Homosexuality is a universal phenomenon existing in China as well as foreign countries in ancient and modern times, even a social ethos in some countries in some historical period. The social attitude toward homosexuality has gone through a historical evolvement of tolerance—sin—morbidity—norm. Since the mid-20th century, as medical research on homosexuality causes and proposal of homosexual constructivism, homosexuality has walked out from bog pool of social stigmas gradually. A social movement of homosexuals struggling for equal rights and equal treatment all over the western world has begun. Marriage claim of homosexuals is a result of the homosexuality movement.Same-sex marriage legislative claim has to settle justification of same-sex marriage firstly. At present, there are mainly three trains of thought on demonstration of same-sex marriage justification. Firstly, Fundamental Demonstration. It demonstrates normality of same-sex marriage based on medical research of homosexuality causes and the theory of homosexual constructivism and then proves the justification of same-sex marriage. Secondly, Practical Demonstration. It focuses on the solving the practical problems of homosexuals to demonstrate the justification of same-sex marriage. Thirdly, Legal Demonstration. It demonstrates from the prospects of personal freedom and right equality, etc. All the above three demonstrations have defects and shortcomings in various degrees. Actually, same-sex marriage has no natural justification. It's justification is decided by particular social conditions.Under traditional social conditions, sex plays a key role in forming social relation structure and maintaining social status and order. Marriage also plays an irreplaceable role in production management, social management and mutual-assistance in life. Therefore, under traditional social conditions, sex and marriage are not interpersonal affairs but closely related to family and kinship, which determines that the homosexual relation based on interpersonal affairs can hardly exist under traditional social conditions. Under modern social conditions, as the social function of sex and marriage weakens, sex reflects a pure interpersonal relationship more and marriage functions in maintaining emotions as well as mutual-assistance in life. This means homosexual behaviour and homosexual partnership have no difference from sex and marriage of opposite sex in social function and nature. We can say it is social transformation that provides social foundation for justification of same-sex marriage and social space for existence of same-sex marriage.At present, ten countries have realized legitimation of same-sex marriage on the Earth. However, the realization of same-sex marriage legislation in these countries results from the political gambling in social movement of homosexuals and judicatory promotion to a large extent instead of being established on a foundation of universal social acceptance of same-sex marriage. Therefore, a series of social problems occur in the process of legal enforcement. Homosexuals do not get married after the legitimation of same-sex marriage. Their living dilemma is not settled and violent crimes against homosexuals increase after the same-sex marriage legislation on the contrary.Same-sex marriage legislation ultimately aims at forming stable and healthy sex relationship through regulating sexual behaviour by marriage, and realize mutual-assistance in life by marriage as well as take social responsibility of marriage. However, Same-sex marriage legislation faces various difficulties for same-sex marriage is emotionally unacceptable by general public. The problems occur in the process of same-sex marriage legislation and legal enforcement show that particular social conditions can not be neglected in same-sex marriage legislation. Different social conditions determine specific legislation goal and legislation mode. Even with conditions for same-sex marriage legislation, single marriage mode is improper because of conflict between personal pursuit and social target of marriage can hardly be compromised. Concurrence of marriage mode and mutual-assistance mode can provide people more choices so that dilemma between personal freedom and maintaining stable relationship coordinated by marriage law can be solved effectively, and the goal of same-sex marriage legislation can be realized with assurance.Nowadays, China also confronts many social problems caused by homosexuality, so we should introduce legislation to regulate homosexual relationship. Comparing to the western world, homosexual group in China are under greater pressure from traditional culture and conception. Most homosexuals who are influenced by mainstream culture hide themselves in heterosexual marriage. Therefore, there is no social foundation of same-sex marriage at the present time. We can adopt unisex mutual-assistance legislation mode to weaken homosexuality issues and solve practical problems homosexuals and heterosexual cohabitants confront. Therefore, it is a relatively reliable choice for China.