On The Legitimacy Of Homosexual Marriage

Homosexuality has already become a noticeable phenomenon on nowadays society, but the study on homosexuality is not as fast as development of this phenomenon. The law science in our country is transformed from the original "standard of the thing "into "people's standard "gradually complying with the plural development of market economy. People pay more attention to the claim and protection to one's own right, the " humanism " spirit in legislation is prominent day by day. From this point of view, we should consider the demand of the homosexual crowd as one of disadvantaged groups. More and more homosexual companions hope to get married now. They want to enjoy and undertake the same right and obligation as the heterosexual couple. In my opinion, homosexuality can get married, the civilized society should allow individuals to have the right to choose one's own life style and we should hold a kind of tolerant and respected attitude to the homosexual companions who live together because of love. This thesis is composed of four parts. To begin with, the thesis introduces the basic situation of homosexuality. Secondly, the thesis defines the meaning of "legitimacy"and introduces different views about the homosexual marriage of scholars and ordinary people in our country. Then proves the legitimacy of the homosexual marriage from the angle of the essence and purpose of marriage, tolerance, equality, the protection for the right of minority and the relation between law and morality. Finally, looks forward to the legislative future of the marriage of homosexuality in our country. In the first part, this thesis introduces the basic situation of homosexuality briefly. Homosexual phenomenon exist universally in the world from ancient times to the present, which is the reason that we study the homosexual phenomenon. Homosexuality is not a kind of morbid state, but the life styles of a few people. There are two kinds of theories about the homosexual cause of formation at present, which are "essential theory"and "theory of structuring". No matter which kind of theories, the rights of homosexual person cannot be deprived. The emotions between homosexual companions are the same as the heterosexual couple. The homosexual companions have aspiration of the family too. They hope to get married legally like heterosexuality person, enjoy the same right as heterosexual couple, and be admitted by law. Such a demand is rational, and we should treat the homosexual companion's demand properly. Now many countries and districts have acknowledged the legitimacy of homosexual marriage. The second part is about the definition of "legitimacy"and the different discussions about the homosexual marriage in China at present. The concept of "legitimacy"has different meaning in different fields. "Legitimacy"in this thesis is the rationality. The legitimacy of homosexual marriage is to study the rationality of homosexual person who need the same rights as heterosexual couple, such as right of inheritance, right of raising right, etc. Due to the difference of culture idea and value idea between east and west, legitimacy discussed in this thesis is limited to the scope of China, but we can utilize the advanced notions and legal model of foreign countries. Secondly, by analyzing the discussion of the scholars in our country, establishes the foundation to prove the legitimacy of homosexual marriage in the next part. Finally, introduces different views on homosexual marriage of domestic ordinary people briefly. The third part proves the legitimacy of homosexual marriage. First, the thesis proves the legitimacy from the angle of the essence and purpose of the marriage. The essence of marriage is individual's pursuit and satisfaction to material, emotion, physiology, etc, but not for bearing offspring and any otherreasons. The purpose of marriage is to pursue happiness, but not to give birth to the child. The marriage of homosexual person is respectable because it is on the basis of emotion. As a matter of fact, homosexual marriage is a choice to the subject sex, and the subject of the marriage is no longer confined to male and female,which liberates the freedom of marriage on the choice to the sex of subject. Secondly, proves the legitimacy of the homosexual marriage from the angle of tolerance. The tolerance rule includes two meanings, preventing discrimination and protecting minority, which means this rule not only demands to prevent discriminating the minority, but also to supply some special necessary treatments for them to live. Tolerance to homosexual person cannot give rise to the "overflow"of homosexual person. Third, proves the legitimacy from the angle of equality. There is similar regulation in almost every countries, which is "every one is equal in front of the law". Any one enjoys some rights equally which cannot be deprived, such as life right, freedom right and the right pursuing happiness, disregarding his race, complexion, language, religion, origin and property, etc. Forbidding homosexual person to marry violates the clause "protecting equally"in the Constitution, and is a kind of discrimination on the ground of sex. Forth, Demonstrate the legitimacy of homosexual marriage from the angle of the protection for the right of minority. Homosexual people belong to the minority because of their sex tendency. The right of minority has two kinds of characteristics. It is a passive right, and is a positive right at the same time. The government take double obligations to the right of minority. The government ought to prevent discriminating the minority and also supply positive protection. Finally, this part specifies that the function of the law is not to defend the so-called traditional morals, but standardize the civil order from the relationship between law and morals. The idea is unrealistic hoping to ensure the marriage from breaking. The law cannot create happy marriage.