A Study On The Constitutional Protection Of Same-Sex Marriage

In the course of human development, the homosexual behavior has been accompanied by as an objective phenomenon whether domestic or abroad. However, since homosexual bring homosexual behavior out from the mainstream culture of heterosexuals, homosexual behavior has been called subculture phenomenon gradually. The so-called subculture has substantially affected the existing laws in many countries, the "gay legalization" storm is ascend-anting in the world, many countries and regions have carried out laws in different extent to protect the rights of homosexuals. In the meantime, the demands concerning the cognition and protection of the rights of homosexuals have taken root in China and became more and more strong. Although the demands have not evolved into a heated debate in public domain, they have became a topic often mentioned. In recent years, in China some homosexuals begin to move out from "cabinet" and express their demands of rights through a variety of ways. some stakeholders in legal community as well as sociologists began to call for lawmakers pay attention to the protection of the rights of homosexuals. Some scholars even drawn up some patterns of same-sex marriage through the study of foreign legislation. The topic concerning the protection of the rights of homosexuals has sparked heated debate among the community of ethical/sociology and law. However, it has not been made an official speech issue. In my opinion, the discuss of the protection of same-sex marriage has its significance.This paper makes full use of the historical analysis, case analysis and comparative analysis, introducing the history and the development trend of homosexual behavior and the tortuous development of same-sex marriage legalization in United States especially in California, this thesis is divided into four chapters.In chapter one, some basic concepts, including the concept and development of homosexuals, the change in understanding of homosexuality, the definition function and nature of marriage and the proposition of same-sex marriage will be illustrated.In chapter two, the constitutional basis of same-sex marriage will be analyzed. The definition of human dignity, the significance and relevant provisions of the Constitution; the definition of the right to freedom, the definition and protection of the right to sexual freedom of homosexuals; the definition of equal rights, formal equality and substantive equality, sexuality and "anti-discrimination" principle; the definition of minority, the relationship between minority and homosexual community and the protection of minorities.In chapter three, California will be taken as an example to explore the legal protection of same-sex marriage in foreign countries. To be specific, the change of the attitude towards homosexuals, the brief introduction of the legitimacy of same-sex marriage in same states of America, the tortuous course and the newly development of the legitimacy of same-sex marriage in California. lastly, the impact of California same-sex marriage legitimacy will be introduced.In chapter four, the legal protection of same-sex marriage in China will be discussed by introducing the current status and barriers of homosexuals, last but not least, several suggestions will be proposed based on China’s national conditions and the characteristics of same-sex marriage.