Same Sex marriage (also called gay marriage) is defined as marriage between two persons of the same biological sex which is legally recognized. This institution is widely accepted in some legal systems while many countries do not apply for it.
Same sex marriage currently is being implemented in seven countries. The Netherlands became the first country (in 2001) that the application of same sex marriage was legal. After the Netherlands, Belgium, Canada, Spain, South Africa, Norway and the states of Massachusetts and California in the United States have adopted same-sex marriage. Even Israel legally recognize same-sex marriage which are applied outside the borders of the country. Nevertheless, same-sex marriage cannot be applied within the borders.
There are many practises, which are giving some of the advantages of a legal marriage to homosexual couples. These practices are "domestic partnership", "civil union" and registered partnership" (practising in Argentina, Brazil, Portugal, Slovenia, Switzerland, united Kingdom, Israel, Luxembourg, New Zealand, Norway, Finland, Denmark, France, Germany, Hungary, Iceland, Andorra, Australia, Columbia, Czech Republic. In the United States; California, Connecticut, Hawaii, Maine, New Hampshire, New Jersey, Oregon, Vermont, Washington DC.)
In Turkish Civil Law, marriage is a contract that the parties declare mutual consents which iis also called "consensus facit nuptias". However the parties are not free to organize contractual marriage. Marriage is regulated in Turkish Civil Code and there are series of conditions that should be fulfilled to be in the status of being married.
Marriage is possible to be applied between the two different genders; female and male. Persons who are from same-sex cannot marry with each other. Accordingly the prior condition of marriage is that spouses must be heterogeneous (belong to different biological sex). This condition is so natural that even the law is not needed to being regulated about genders of the spouses. Nevertheless in Turkish Civil Code article 134 is clearly emphasized that "the man and the woman who are going to marry each other may apply to the marriage officer together."
If one of the terms has not been carried, the contract of marriage would be invalid. Even if the marriage officer has officiated the process, the marriage is null and ineffective. In other words same-sex marriage is not legally recognized in Turkiye. This issue is clearly regulated in Turkish Civil Code; article 140.
This situation leads to inequality. According to Turkish Law, the purpose of marriage is to establish a continuous life between a woman and a man. This approach is one dimension of gender discrimination. If a couple decide (with their own free will) to fulfill the obligations which are required in a marriage, this couple should benefit the advantages of legal union of marriage that are provided by the state they are bound with citizenship. If some citizens could benefit the advantages of marriage but some of them could not because of their sexual preferences, this means the state is liable of gender separation between citizens. As it is known there is an article in European Human Rights Convention against any kind of separation such as gender discrimination. Forbidding and unrecognizing same-sex marriage can be easily assumed as sexual discrimination of persons. If a homosexual couple agree to obey the obligations of marriage (such as loyalty between spouses; based on TCC; art 185/3), the protection of personal rights based on being in a marriage (based on TCC; art. 34), providing the welfare of the family union (TCC; art 185), supporting each other (TCC; art. 186) then they should be given the right to marry and to benefit the advantages of a legal marriage. Germany adopted a special law (called Gesetz zur Beendigung der Diskriminierung Gleichgeschlechtlicher Gemeinschaften: Lebenpartnerschaften; The Law about Ending Discrimination in the Same-Sex, Life Partnership) which is aimed to prevent discrimination between persons who are envisaged by the constitution.
The right of marriage and having children depend on the natural human rights (natural human rights doctrine). These rights should not be prevented by any modern legal system. Opponents of same-sex marriage generally claim that same-sex marriage is not ethical, natural and if it becomes a legal institution, it will cause indignation in the society. However, law should be created to obtain justice, not to protect the ethical values of society. In addition welfare of the relationship is the basic element of a marriage, not the gender of the parties. Many people consider that homosexuals could simply choose to be heterosexual if they wished, and also homosexual relations are about nothing but sexual intercourse. This is why, society is against establishing value of gay marriage. The truth is that homosexuals do not have a choice any more than heterosexuals. Also to be homosexual is more than sexual intercourse, it is a part of that person's identity. People should not be discriminated due to their identities. There is no reason for marriage being an institution between a man and a woman. The definitions of marriage, the married and the marriable are made by who? This is not any kind of aspect but an expression of prejudice. The law should not be established on these kind of relative understanding but it should be established on equity and justice. Opponents also consider that if a gay couple is allowed to marry, then they could demand to have children.. Raising by gay souses would affect a child in a negative way. However having children is a basic human right and nobody should be debared from using a human right. Moreover, children abuse is not a problem concerned with gay marriages. There are many cases of child abuse committed by heterosexual parents. Therefore, forbidding same sex marriage is not a solution to prevent children abuse. For this purpose, any other institutions should be activated. To sum up there is no reason to prevent homosexual persons to marry and have children while heterosexuals is allowed to achieve all these.
The reason that societies (and also states) oppose same-sex marriage are that people are not comfortable with the idea which is incompatible with religious principles. In many states, people could apply religious marriage ceremony so if same-sex marriage is allowed, gay couples could demand religious ceremony. It is also thought that gay marriage could violate the sanctity of marriage. In addition gay sex is unnatural. However there are many animan species which are in homosexual behaviours. Furthermore, people could not be restricted and forced by religious understanding.. Sanctity has many kinds, commitment of two persons (their genders are not important) is sacred enough.
There is an understanding that gay marriages would legitimate homosexuality. However homosexuality is not a threat for humankind and also it is more than a choice. Legally recognized or not, homosexuality is a normal variation on how human develops. The issue is clear; whether a society respect persons' identity or not.
Application of same-sex marriage is not only forbidden in the borders of Turkiye, but also homosexual marriage out of borders is null; because every citizens are subjects of the law of their countries. Therefore same-sex marriage which is made out of the borders is not legally recognized in Turkiye.
Whether or not homosexual couples fulfill the same obligations with heterosexuals, they cannot apply the marriage institution and the legal protection that a marriage provides. This leads to discrimination between citizens who have equal rights guaranteed by Constitution. In other words, there is an indirect contravention to the articles in force. Spouses should not be described as "a woman and a man" in Civil Code. There should be refrained from highlighting sexual identity in the text of the Code.
The reasons of preventing homosexual marriage are irrelevant, biased and based on ignorance. To be a just and honorable society, states must threat according to rule of law. To sum up the las phrase from the Pledge of Allegance; "With liberty and justice for all".
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