The Freedom of Internal Mobility and Same-Sex Marriage Laws in the United States

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Title: The Freedom of Internal Mobility and Same-Sex Marriage Laws in the United States
Authors: Bejarano, Oscar Antonio
Date: 2013-09-09
Abstract: Within the United States of America, the LGBT community has suffered not only gross levels of discrimination and victimization, this community continues to this day to suffer a level of inequality that puts into question the nation’s commitment to liberal democratic principles, such as human, political, and civil rights. From the Stonewall Riots of the 1960s to the legalization of same-sex marriage in 13 states throughout the Republic, the LGBT community has had to struggle immensely to be recognized as a group of citizens who are equally deserving of the freedoms and rights allotted to all Americans. Nevertheless, same-sex couples in the majority of states within the United States of America are banned from entering the public institution of marriage. The disparity on the recognition of same-sex marriage is a violation of the Freedom of Internal Movement guaranteed by the Privileges and Immunities Clause of Article IV, Section 2 of the US Constitution, as well as, the Privileges or Immunities Clause in the Fourteenth Amendment of the same. This paper examines the concept of liberal democracy and liberal democratic values. It establishes that freedom of internal mobility is inherent to a liberal democracy. Then, I conduct an analysis of the importance of internal mobility within the United States through the review of a Supreme Court case; this later provides the basis necessary to analyze the four states with four levels of recognition of same-sex marriage. These four states are: South Carolina (constitutional ban), New Mexico (no prohibition, nor recognition), New Jersey (civil unions) and New York (marriage equality). The reality established by the different levels of recognition of same-sex marriage is one that is unique to the LGBT community because it creates two costs of mobility from which heterosexual couples are exempt. These two costs are a lack of access to benefits available through marriage and a condition of restricted autonomy. This paper shows that the costs same-sex couples must face are due to invidious discrimination and do not constitute a compelling government interest for the states that have a ban on same-sex marriage; therefore, it represents a sort of institutionalization of inequality for a group of Americans who met all other requirements to obtain a marriage license. As a result, the disparity among states on the recognition of same-sex marriage impedes on American same-sex couples’right to migrate freely throughout the Republic, rendering this disparity as unconstitutional.
URL: http://hdl.handle.net/10393/26062
CollectionAffaires publiques et internationales - Mémoires // Public and International Affairs - Research Papers
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