Same-sex couple

“ It does not, however, in itself provide a gateway, let alone a compulsory path, to enable same-sex couples to enjoy the status, entitlements and responsibilities which marriage accords to heterosexual couples. ”

“ Permitting same-sex couples to marry will not affect the number of opposite-sex couples who marry, divorce, cohabit, have children outside of marriage or otherwise affect the stability of opposite-sex marriages. ”

“ For example, discrimination against a married same-sex couple could be based on the sex stereotype that marriage should only be between heterosexual couples, the sexual orientation of the two individuals in the couple, or both. In addition, some persons are subjected to discrimination based on a combination or the intersection of multiple protected characteristics. Discrimination against a pregnant lesbian could be based on her sex, her sexual orientation, her pregnancy, or on the basis of multiple factors. ”

“ In a context of patterns of deep past discrimination and continuing homophobia, appropriate sensitivity must be shown to providing a remedy that is truly and manifestly respectful of the dignity of same-sex couples. ”

“ As such, the state contended, it could not be regarded as unfair discrimination to exclude same-sex couples from the institution of marriage. The remedy to the plight of same-sex couples should therefore
be found outside of rather than inside marriage. ”

“ The availability of domestic partnership does not provide gays and lesbians with a status equivalent to marriage because the cultural meaning of marriage and its associated benefits are intentionally withheld from same-sex couples in domestic partnerships. ”

“ The world in which they live and in which the Constitution functions, has evolved from repudiating expressions of their desire to accepting the reality of their presence, and the integrity, in its own terms, of their intimate life. Accordingly, taking account of the decisions of this Court, and bearing in mind the symbolic and practical impact that exclusion from marriage has on same-sex couples, there can only be one answer to the question as to whether or not such couples are denied equal protection and subjected to unfair discrimination. ”

“ Yet the impact of the legal void in which same-sex couples are compelled to live is real, intense and extensive. To appreciate this it is necessary to look precisely at what it is that the law offers to heterosexual couples, and, conversely, at what it denies to same-sex couples. Such scrutiny establishes that the consequences of the total exclusion of same-sex couples from the solemnities and consequences of marriage are far from academic, as the following section shows. ”

“ Unless they are legally recognized, our rights to equality and dignity cannot be fully secured. Indeed, many countries are willing to grant us equality in every area of our lives except in relation to our relationships and families, to ensure that our relationships and families are stigmatized as inferior. As a matter of simple equality, same-sex couples are entitled to the full range of relationship options available to different-sex couples, including marriage for those who choose it. ”

“ It is difficult to understand how withholding the remaining “rights and benefits” from committed same-sex couples is compatible with a “reasonable conception of basic human dignity and autonomy.” There is no rational basis for, on the one hand, giving gays and lesbians full civil rights in their status as individuals, and, on the other, giving them an incomplete set of rights when they follow the inclination of their sexual orientation and enter into committed same-sex relationships. ”

“ What same-sex couples seek is admission to that most valuable institution, what they seek is the liberty to choose, as a matter of personal autonomy, to commit to another person, a same-sex person, in a civil marriage. ”

“ The evidence shows that the state advances nothing when it adheres to the tradition of excluding same-sex couples from marriage. Proponents’ asserted state interests in tradition are nothing more than tautologies and do not amount to rational bases for Proposition 8. ”

“ Bipolar by its very nature, the law of marriage is invoked both at moments of blissful creation and at times of sad cessation. There is nothing to suggest that same-sex couples are any less affected than are heterosexual ones by the emotional and material consequences of a rupture of their union. ”

“ It follows that their union, if it is to be regarded as a marriage, would not be subject to annulment and the factor under consideration is not relevant.
[130] ⁠Further authority for this view is to be found in the judgment of Ackermann J in the Home Affairs case. [57] Having referred [58] to the reinforcement of ‘harmful and hurtful stereotypes of gays and lesbians’, Ackermann J said:
‘ [50] A second stereotype, often used to bolster the prejudice against gay and lesbian sexuality, is constructed on the fact that a same-sex couple cannot procreate in the same way as a heterosexual couple. ”

“ Because same-sex couples' sexual activity does not lead to procreation, according to proponents the state has no interest in encouraging their sexual activity to occur within a stable marriage. Thus, according to proponents, the state's only interest is in opposite-sex sexual activity. ”

“ It offers them the option of entering an honourable and profound estate that is adorned with legal and social recognition, rewarded with many privileges and secured by many automatic obligations. It offers a social and legal shrine for love and commitment and for a future shared with another human being to the exclusion of all others.
[17] ⁠Legislative developments, he continued, have ameliorated but not eliminated the disadvantages same-sex couples suffer. More deeply, the exclusionary definition of marriage injures gays and lesbians because it implies a judgment on them. ”

“ Other minorities are rendered invisible inasmuch as the law refuses them the right to express themselves as a group with characteristics different from the norm. [84] In the present matter, the unfair discrimination against same-sex couples does not flow from any express exclusion in the Marriage Act. The problem is that the Marriage Act simply makes no provision for them to have their unions recognised and protected in the same way as it does for those of heterosexual couples. ”

“ Every statutory provision applicable to opposite-sex couples might not be symmetrically applicable to same-sex couples. The presumption of parentage would apply differently for same-sex partners inasmuch as both partners could not be the biological parents of the child. ”

“ With fewer financial benefits and protections available, those children are disadvantaged in a way that children in married households are not. Children have the same universal needs and wants, whether they are raised in a same-sex or opposite-sex family, yet under the current system they are treated differently.
Last, even though they are provided fewer benefits and rights, same-sex couples are subject to more stringent requirements to enter into a domestic partnership than opposite-sex couples entering into marriage. ”

“ Federal law should not discriminate in any way against gay and lesbian couples, which is precisely what DOMA does. I have also called for us to repeal Don’t Ask, Don’t Tell, and I have worked to improve the Uniting American Families Act so we can afford same-sex couples the same rights and obligations as married couples in our immigration system. ”