The Rights Of Gay Marriage Legislation Protection

In China, as a minority population of39million-52million, thesocial status and influence of homosexuality should not beunderestimated. Although in1997the New Criminal Law,"gay" as aform of "hooliganism", together with "hooliganism" was buried in thestacks of old papers. In2001the Chinese Mental DisordersClassification and Diagnostic Criteria (the third version) no longerconsiders "gay" as a mental illness to treat. However, in our existinglegal system, the legal status and legal rights of homosexuality do notmatch their real social status and the huge number of people. It alsoshows that "equal rights movement" in China has just begun.In theory, domestic scholars always plagiarize too much fromWestern scholars on their points of view in moral philosophy, ethics,jurisprudence and sociology as on the issue of homosexualitypathological and biological research. In fact, this is wrong.Homosexuals from all races of human beings have a commonphysiological basis or a common social basis. But under the influenceof different cultures the public show different social attitudes towardshomosexuals. According to the destruction of Sodom City inChristian Old Testament of Holy Bible, we can see the negativeattitude to homosexuality. In Middle Ages, the persecution ofhomosexuals also illustrates this point. In China until the eve of theNew Culture Movement, except for the Qianlong period, Qing Law"banned" forcible sodomy, the prevalence of gay is without a break inevery dynasty, and not influenced by Confucian. This is the need toexplain. Today, according to the historical and social consciousness, thetheories of Philosophy of Law and the Sociology of Law on the legalrights of homosexuals meet at this new point as the innovation of thispaper. The theory finds a basis in history, and explains the reason ofhistory. That proves that the new way to find the argument of gaymarriage rights.In practice, after the gay decriminalization, whether the "gaymarriage rights can be achieved is the most sensitive, most can not beavoided and the core of the homosexual legal rights. This is proposedthat and the "monogamy" in Marriage Law conflicts on the principleof equality stipulated in the Constitution. And it is denied that the gaymarriage to homosexuals is different from heterosexual sexualorientation. It is said that this is an important task to improve China’ssocialistic legal system in the future. In the future of civil legalamendments, legal clean-up and legal compilation, it is problems tobe solved. It relates to the relationship of the lower law and the upperlaw, the special law and general law. And it is whether consistent,harmonious in the same legal department or in the legal system.This article strives to achieve the harmony between the practiceand the theory. And it is added of humane care and historical care ofgay marriage rights.