On The Nature Of Same-sex Marriage As A Constitutional Right

On June 26,2016, the U.S. Supreme Court released its decision in Obergefell v. Hodges and gave the same-sex marriage full recognition in the Union. The decision aroused many dispute around the world because of the controversial questions that same-sex marriage had aroused and the complicated legal problem about it. Researches in America on this topic are focused on analyzing cases happened in different states and exploring their patterns. Chinese scholars study this theme mainly through the aspects of Comparative Law to judge the rationality of the legislation as well as juridical practice. In brief, the study on homosexual problem is relatively successful, but there still remain vital question that deserves to further explore, such as, the constitutional right of same-sex marriage. The Court applied well-known "Due Process" and "Equal Protection" clause to justify the same-sex marriage in the decision. However, the arguments the judge provided in the decision was very general and abstract, which could not show us the specific nature of same-sex marriage in constitutional aspect. Does it deserve the protection of "Due Process"? How to justify it under "Equal Protection"? Therefore, this dissertation is aimed to clarify the constitutional right of same-sex marriage.The focus of the dissertation will be achieved by analyzing the connection among the right of same-sex marriage, "Due Process" and "Equal Protection". The whole content of the dissertation includes six parts, except the "Introduction" and the "Conclusion", the rest four parts are the central ones:Firstly, defining several related terms from the angle of etymology and clarify the specific meaning of them, such as "homosexuality", "same-sex partner", "same-sex marriage" and "the right of same-sex marriage", to build a firm foundation for further discussion.Secondly, starting the study of the relationship between the right of same-sex marriage and "Due Process". In this part, firstly, the author argues that the ban on same-sex marriage cannot be justified under the "Principle of Proportionality"; secondly, the dissertation applies "Living Constitution"theory to explore the spirit of the Constitution requires the protection for same-sex marriage; thirdly, the author comes to conclusion that same-sex marriage is under the protection of "Due Process".Thirdly, exploring the connection between the right of same-sex marriage and "Equal Protection". The dissertation argues that same-sex marriage deserves "Equal Protection" from two aspects:firstly, the author starts with "Equal Protection" clause and applies the criteria for examining suspect-classification to analyze the unequal treatment that same-sex couples suffered from laws or government as suspect-classification, therefore, the dissertation applies strict scrutiny to test the laws and denies the reason of clarification of the legislation. Secondly, according to the principle of federalism, to provide equal protect for same-sex marriage is what the spirit of federalism requires as well as the purpose of federal system.Finally, defining the nature of the constitutional right of same-sex marriage. Based on what argued above, the dissertation proves that the right of same-sex marriage is the basic freedom of individual and explains that same-sex marriage as a fundamental right deserves equal protection. Thereafter, the dissertation points out the right of same-sex marriage as it is unique in the Constitution is a fundamental one from two aspects:it is a fundamental liberty of individual and deserves equal protection. These two feathers are not conflict with each other, because they are the two aspects of the constitutional right of same-sex marriage. The transcendental quality of the right to marry and the spirit of U.S. Constitution determine the liberty for same-sex couples to marry; the basic content of "Equal Protection" and the appropriate function of juridical system both require the equal treatment to same-sex marriage.