国家与婚姻:婚姻自由的宪法之维

Marriage and State:Constitutional Respect on the Freedom of the Marriage

作为宪法基本权利的婚姻自由,是指婚姻当事人享有自主地决定自己婚姻的权利,免受国家的非法干预与侵犯。婚姻当事人按照法律的规定,有权基于本人的意志,自主自愿地决定自己的婚姻问题,既不受国家的强迫、限制或其他方式的影响,也不受第三人的干涉和强制。我国法律规范中限制公民结婚和离婚的某些规定,与宪法婚姻自由基本权利是相冲突的,国家对婚姻自由限制只能是在宪法精神下基于合理的、正当的理由且只能由法律予以规定。婚姻自由是否可以包括同性婚姻近年来被少数群体呼吁,其法律理论需要从宪法平等的层面进行探讨。同性婚姻的法理学源于宪法平等而非婚姻法,即性的平等而非男女平等,同性婚姻如果需要国家的保护,首先需要对宪法平等权作扩张的解释,然后才有可能进入由法律规范调整的讨论视角。

As the basic rights of constitutional law, the freedom of marriage is that the clients of the marriage have the rights to determine freedom of the marriage and exempt to be interfered or impinged illegally. The clients of marriage have the rights to determine the matters of marriage based on his or her own ideas, and neither been forced by the state or limited or affected by other means, nor interfered or coerced by the third party, according to the prescribed laws. Some regulations about limit on marriage and divorce in our laws, are afoul with the basic rights of constitutional law on the freedom of marriage. That the state confine the freedom of marriage is only when the the cause is reasonable and fairly under the spirit of the constitutional law and it is prescribed by the law, That the freedom of marriage compromises the marriage of the same sex or not is appealed by the minority in the recent years. The legal theory need to be considered on the lay of au pair rights of constitutional law. The jurisprudence of the marriage of the same sex is from the au pair rights of constitutional law and not from the marriage of law, that is equality between of man and woman. If the marriage of the same sex is needed to be protected by the state, we need to explain constitutional equal rights and then move into discussing the regulatory by the law.