Allen’s article “discusses the potential implications of the Court's morality-based rationale in Lawrence for First Amendment jurisprudence.” First he determines that the Supreme Court’s meaning in Lawrence v. Texas, 539 U.S. 558 (2003), is that legislatures cannot use morality as the sole purpose for enacting a law. He then discusses how this applies to judicial rulings as well. After that Allen “considers the implications of the decision's morality-based reasoning for First Amendment doctrine.” He specifically addresses implications for two free speech concepts under the first amendment: obscenity and hate speech. He argues that under Lawrence obscenity laws would fail if passed solely for moral reasons, but may survive if non-moral based reasons were provided, encouraging legislatures to create more evidence-based legislation. Allen also finds that hate speech laws are more suspect under Lawrence, since they are generally based on moral concepts, which corresponds with current jurisprudence. He concludes that “Lawrence's prohibition on the use of morality as the sole or dominant rationale for both constitutional interpretation and legislating undermines certain aspects of established law while simultaneously providing support of others.”

The author looks specifically at the immutability element of the test for suspect class protections under the Fourteenth Amendment, and how it might apply to homosexuals. Is sexual orientation an “immutable” trait, at least within the sense required by contemporary constitutional analysis? Balog believes the answer is Yes, and therefore, “assuming homosexuals are able to meet the remaining three Frontiero factors [history of purposeful discrimination, object of deep-seated prejudice, and politically powerless minority], homosexuality should be classified as a suspect classification and receive heightened review.”

Baxter discusses lesbians and gay men as a suspect or quasi-suspect class for equal protection analysis. Reviewing how the criterion of political powerlessness has been applied to women and racial minorities, she concludes that were this analysis applied “evenhandedly by measuring the political power of homosexuals in the same manner it has measured the political power of other groups, the Court may find that laws classifying based on sexual orientation are subject to heightened or strict scrutiny.”

This eminently readable article articulates the conflict of laws issues raised by same-sex marriage. Included are discussions of the obligations of states to respect other states' laws or judgments, and whether DOMA violates the Full Faith and Credit Clause.

In this article Dent adds to his established list of anti-gay writings. Beginning with claims that “most people have an innate distaste for homosexuality” and that “heterosexuality can be considered intrinsically better,” Dent allows that gay men and lesbians “should be free from harassment and physical abuse,” and that in at least “some cases” they should perhaps not be the object of discrimination. Those familiar with Dent’s work will find few surprises here: Gays unqualified bad, anti-gay religion unqualified good.

The argument in this article is fairly straightforward: Among the constitutionally protected rights is "the ultimate personal liberty," right of intimate association, of which marriage is a basic example. Denial of marriage rights to gay men and lesbians also infringes the right to privacy, which both the new conservative members of the U.S. Supreme Court -- Roberts and Alito -- testified the Constitution protects. The "barest majority of the Supreme Court [thus] appears prepared to defend these fundamental rights and not to reify outdated theories of substantive due process or equal protection that have been repudiated during the past fifty years." An optimistic assessment, to be sure.

This very brief (ten pages) government study provides an overview of the Court’s opinion in Lawrence v. Texas [539 U.S. 558 (2003)] and considers its impact on future suits about gay rights generally and same-sex marriage specifically. More extensive treatment of the latter topic can be found in the CRS report Same-Sex Marriages: Legal Issues (Alison M. Smith, last updated July 17, 2006, available at www.opencrs.com/document/RL31994/).

Grodin—a former Associate Justice of the California Supreme Court—argues that “state courts bear responsibility for developing a state constitutional jurisprudence which does not simply follow, in blind lock-step, the most recent pronouncements of the United States Supreme Court with respect to similar or even identically worded provisions, but which instead make a serious attempt to ascribe meaning to the provisions of the respective state constitutions in a principled but independent way.” He then applies this perspective to the problem of same-sex marriage and finds that the incoherency of rationality review provides an opportunity for “creative doctrinal development at the state level.”

After a fertility doctor refused to perform an intrauterine insemination procedure due to his religious beliefs -- there was a disagreement whether he objected to the patient's status as a lesbian or as an unmarried woman -- the patient sued for a violation of California's Unruh Civil Rights Act. The California Supreme Court held, relying upon Employment Div. v. Smith, 494 U.S. 872 (1990), that there exists no First Amendment "exemption from a neutral and valid law of general applicability." Doctors are therefore not allowed to refuse to provide medical treatments due to their own religious beliefs, with two exceptions: The doctor can either cease to provide that service completely, or can refer the patient to another nonobjecting doctor within the same practice. The commentator views this as a realistic compromise. This ruling can be read in the context of moves by President Obama to overturn the Bush administration's hastily enacted "Provider Refusal Rule," which went into effect the day Obama took office, that has allowed doctors to claim such a religious exemption.

This student note argues that "bans on same-sex marriage violate the First Amendment's Establishment Clause." Of particular focus is Justice O'Connor's "endorsement test, which prohibits the government from conveying 'a message of endorsement or disapproval' of a particular religious viewpoint." The author applies this test "from the non-Christian's perspective to bans on same-sex marriage and concludes that these laws endorse the viewpoint of the dominant Christian majority."

The Marriage Protection Act of 2004 (MPA), or House Bill 3313, would strip the federal courts of jurisdiction over same-sex marriage cases. This article provides some history of the MPA. It examines the federal courts’ powers of judicial review, and Congress’s power over the courts. It concludes that attempts to curtail judicial review through the MPA would be unconstitutional. Equal protection, full faith and credit, and due process analyses are all discussed.

All too often the debate over same-sex marriage takes on an erudite, disinterested intellectual tone as constitutional issues are pondered, social trends reviewed, and judicial opinions summarized. Knauer, a frequent writer on the topic, does some of this in her brief article about the shortcomings of federalism for this topic. The eye is drawn, however, to the concluding section which points out the real human costs of the disparate state approaches concerning gay and lesbian relationships.

Written from the legal perspective of the Anglo-Commonwealth jurisdictions, the author studies the argument that describing someone as gay or lesbian alone opens the speaker to defamation claims. Does “such an imputation tend to lower the reputation of a person in the estimation of ‘right-thinking’ members of society”? He finds that generally “there remains a reluctance on the part of the courts to definitively rule that the right-thinking person is now indifferent to imputations of gayness.”

This author examines some issues that arise under various state “defense of marriage” laws. He identifies a number of issues that aren’t generally covered by those laws, such as persons migrating to the state, individuals attempting to avoid obligations incurred in other states, and litigation related to children of same-sex marriages who are now residing in the state. A number of attempts to deal with those situations, either by denying “contractual rights” to same-sex couples, by refusing to enforce judgments from other states related to same-sex unions, or by “blanket nonrecognition,” are most likely unconstitutional, because they either violate the Equal Protection or Full Faith and Credit clauses of the U.S. Constitution.

Oops. Lau reads Parents Involved in Community Schools v. Seattle School District, No. 1, 127 S. Ct. 2738 (2007), the majority of which included four conservatives, as introducing a new form of equal protection analysis that -- while created to resolve a dispute over racial integration in public schools -- can also be applied to bolster arguments for same-sex marriage. The sex discrimination argument for same-sex marriage has received little support in courts because the ban on marrying someone of your own sex "is applied equally to men and women." Virginia used this same argument to defend its anti-miscegenation laws in Loving v. Virginia, 388 U.S. 1 (1967), but lost because in practice the law "reinforced white supremacy." LGBT advocates have had a difficult time making a similar argument that banning same-sex marriage supports a gender-based hierarchy. Those difficulties have now been removed, says Lau, because as a result of Parents Involved "laws that make race-based distinctions -- even equally applied distinctions in integration programs -- are now subject to heightened scrutiny regardless of their substantive effects." In other words, Loving would have been decided the same way under the new rule even without a finding that the practice supported white supremacy, opening the door for a similar reassessment of the sex-discrimination argument for same-sex marriage.

Observing that for a provincial opinion such as Halpern v. Canada, 65 Ontario Rep. 161 (2003), there is "no higher honour ... than such lofty acknowledgment that it exists" as being criticized in Justice Scalia's dissent in Lawrence v. Texas, 593 U.S. 558, 573 (2003), the author uses that opportunity for a deeper scrutiny from the perspective of comparative constitutional law. Problems arise, he finds, in studying issues of constitutional law "in isolation from their enculturation in private law," with the result that too much of the credit goes to constitutional texts rather than to the private law that "informs the attitudes of the judges who construe constitutional rights."

Discussion in the popular press (e.g., the Advocate's Dec. 16, 2008, cover issue on whether "Gay is the New Black") have added urgency to the long-standing question of the proper relationship of antimiscegenation laws against interracial marriage--and the judicial decisions that overturned them, including Loving v. Virginia, 388 U.S. 1 (1967)--to the current bans on same-sex marriage. Lenhardt suggests that the key to reframing this debate is to look at Loving's predecessor, Perez v. Sharp, 198 P.2d 17 (Cal. 1948). Perez encourages not an "analogy" that compares two different groups, but "a deeper appreciation of the extent to which state-imposed obstacles to marriage have operated to police identity, restrict opportunities for self-definition, and impede belonging."

Lucas advocates in this extremely brief opinion piece from a symposium titled “Sex for Sale” that mainstream gay rights advocates avoid the one trait that uniquely distinguishes homosexuals from straight people: sex. They are thus inclined to adopt the majority interpretation of pornography as degrading to women (among other bad things). Contradicting this negative portrayal of pornography, Lucas suggests that gay male porn can serve functions that are useful to the gay community and even to wider society. This statement may be unique in the legal literature: Although possessed of a law degree from Russia, Lucas’ authority to speak on this subject flows from his own position as a successful gay porn star and entrepreneur.

This essay considers the constitutional issues raised by the establishment of institutions like the Harvey Milk High School in New York City. The school was established in 1985 to “target students that are being harassed in their community schools because of their actual or perceived sexual orientation or gender identity.” Because it provides a benefit to the exclusion of other, similarly bullied students, it might be vulnerable to claims that its existence violates the Equal Protection Clause of the 14th Amendment. For years gay rights advocates have been pushing to have homosexuality included among the suspect classes meriting heightened scrutiny, thus practically ensuring that laws excluding GLBT persons would fall. The author, however, believes that in the current climate of incremental social changes, “rational basis review may better serve the goals of gay rights advocates than would the application of heightened scrutiny [because] benign programs meant to remedy discrimination are far less likely to survive strict scrutiny than rational basis review.”

Massachusetts General Law chapter 207, section 11, prohibits the issuance of marriage licenses to non-resident couples who reside in states where their marriages would be void. This article analyzes this “marriage evasion statute” as it applies to same-sex couples. It concludes that the statue violates the Privileges and Immunities Clause of the United States Constitution.

The author begins by considering the appropriate degree of deference the U.S. Supreme Court should use when invalidating a piece of legislation, and determines that they should use a “not unreasonable” standard in their review. He then reviews the key components of the 14th Amendment (due process, equal protection, and privileges and immunities), and concludes that a law will run afoul of the 14th Amendment if it is based on a “demeaning view” of a group of people. While he concludes that most anti-same-sex marriage laws are based on a demeaning view of gay men and lesbians, and thus technically unconstitutional, he feels that the Supreme Court should perhaps proceed cautiously in invalidating those laws in deference to the legislative process, and because invalidation could provoke a backlash that prompts an amendment to the Constitution.

Rather than a legitimate experiment in the laboratories of the states, federalism offers instead only a stage of historical accident for the thrashing out of the same-sex marriage controversy. Poirier frames the struggle instead as a "kulturkampf," or culture war, a term invoked by U. S. Supreme Court Justice Scalia in his Romer v. Evans dissent (517 U.S. 620, 636 (1996)). The error of the first view is that the state is the proper level of analysis at which to frame the central arguments at issue in marriage adjudication. In contrast, Poirier points out that the "core dynamics are either local and place-based, or are universal and aterritorial." Resort to federalism is therefore "tactical" rather than central, a "beachhead" attempt to make opportunistic arguments. "Where Kulturkampf and cultural identity are concerned, federalism simply is not the main event."

The student author argues for the recognition of extraterritorial same-sex marriages by New York under the comity doctrine. Hernandez v. Robles, 855 N.E.2d 1 (N.Y. 2006) serves springboard for this commentary, wherein the New York Court of Appeals denied that the state constitution compelled recognition of same-sex marriages. Hernandez, which dealt with the question of issuing licenses of New York citizens, influenced later cases ruling on the question of recognition of marriages in foreign jurisdictions, such as Funderburke v. New York State Department of Civil Service, 822 N.Y.S.2d 393 (Nassau County Sup. Ct. 2006), Godfrey v. Spano, 836 N.Y.S.2d 813 (Westchester County Sup. Ct. 2007), and Martinez v. County of Monroe, 850 N.Y.S.2d 740 (App. Div. 4th Dep't Feb. 1, 2008), which disagreed over whether Hernandez had changed the law as concerned comity. This outcome is allowed, he says, because "the spirit of New York law safeguards citizens with respect to matters of sexual orientation, rendering the public policy arguments [for exemptions from comity obligations] untenable."

Writing from the perspective of the journal issue's theme of "Law and Morality," Seidman inquires into the over-the-top rhetoric of opponents of gays' rights, such as Justice Scalia, who think that "the case for gay rights is outside the range of reasonable constitutional argument." After demonstrating that a moral argument can be fielded for gay marriage, he returns to the question of why Scalia insists that such defenses are not simply wrong, but illegitimate. Generously taking him at his word that he is not motivated wholly out of pure animus, Seidman interestingly suggests that the dilemma lies in the problematic relationship between law and morality. If "it is true that constitutional questions are inextricably tied to moral questions [as liberal constitutionalism presumes], and if it is also true that moral questions cannot be resolved by reasoned argument [as the debate over gay marriage suggests], then it follows that constitutional questions cannot be so resolved either. But then it would be true that our polity is not founded on principles that all of our citizens are bound to respect and that the ambitions of liberal constitutionalism would have failed." This outcome, he notes, would be "a very big deal" for one such as Scalia, and at least offers an alternative explanation for his lashing out "at people who, he perceives, are attacking the very foundations of the Republic, not to mention his self-conception of how he performs his job."

The author, legal counsel for the Becket Fund for Religious Liberty, reads gains for gays regarding same-sex marriage as a threat to religious liberty. "Because of the undeniable centrality of marriage to civic and religious life, conflicts will inevitably arise where the legal definition of marriage differs dramatically from the religious definition." As his essay illustrates, however, the potential challenge to religious institutions does not concern governmental regulation of religious beliefs, but only areas of secular activity engaged in by religious institutions (e.g., employment, housing, and public accommodations). While no religion should be coerced into changing its private beliefs, neither is it obvious that any organization should be free to discriminate in the public sphere whatever its claimed motivation, especially when supported by governmental benefits such as tax exemptions. Severino offers no justification to support such a radical extension of religious protection.

The author begins with a brief discussion of the federal Defense of Marriage Act, and the Full Faith and Credit Clause of the U.S. Constitution, and finds that neither is dispositive on the issue of whether a same-sex marriage in one state must be recognized in another. He then analyzes the New York state case In re May’s Estate [148 N.E.2d 4 (N.Y. 1953)] to see whether a choice-of-law argument might help proponents of same-sex marriage to advance their claims. While the decision in May’s Estate would seem to do so, the author finds the case to have been improperly decided. He concludes, however, that the Equal Protection, Due Process, and Establishment Clauses of the U.S. Constitution would require a state to recognize same-sex marriages performed in another state.

The gay-themed contribution to a theme issue devoted to Loving v. Virginia, 388 U.S. 1 (1967), Smith offers a critique of the "same-as mantra as a potential organizing strategy used by white mainstream LGBT organizations in their attempt to build meaningful coalitions with black people and sway public opinion." While useful in some contexts (e.g., legal briefs), sameness arguments, she points out, "are not the optimal approach to an interracial dialogue on LGBT issues." As an alternative, she suggests looking to the superordinate goals in correcting the "overarching structures of oppression" that the two movements share. As to examples she offers "recognizing the harms to black LGBT people," and "expanding the concept of 'family'."

A short student note equating homosexuality with bestiality and polygamy as part of an argument that antidiscrimination laws will inevitably undermine the First Amendment free speech clauses. Concluding that “considering almost any group a discriminated class is dangerous,” the author draws heavily upon foreign hate speech enactments from which she analogizes what negative outcomes could arise within the U.S. jurisdiction should gay men and lesbians achieve basic protections under the law.

Strasser intends this article as a corrective to those who interpret Lawrence v. Texas [539 U.S. 558 (2003)] as a simple incorporation of John Stuart Mill’s “harm principle.” ON LIBERTY’s harm principle states that “the only conduct for which an individual is appropriately subject to sanction by either the state or society is conduct which is ‘other-affecting;’ that which only affects himself is not appropriately subject to external punishment.” Strasser argues that viewing Lawrence as embodying this principle follows from both a “watered-down” understanding of the harm principle itself, and a narrow reading of Lawrence to justify the claim that the decision “incorporates this modified version.”
“It is inappropriate to characterize Lawrence as a straightforward incorporation of the harm principle both because in some respects it does more than the harm principle [by assigning positive value to GLBT relationships], and because in other respects it does less than the harm principle [by protecting fewer liberties than the harm principle requires, such as prostitution].”
The erroneous reduction of Lawrence to the harm principle reinforces but does not wholly account for subsequent decisions (Lofton v. Secretary of Florida Department of Children and Family Services [358 F.3d 804 (11th Cir. 2004)], L.A.M. v. B.M. [906 So.2d 942 (Ala. 2004)], Kansas v. Limon[83 P.3d 229 (Kan. Ct. App. 2004)]) that have disadvantaged GLBT persons “not because of a misreading of Lawrence as simply an incorporation of Mill’s harm principle into 14th Amendment jurisprudence, but because the courts have been making more serious and obvious mistakes in their interpretation of local and constitutional law.”

Strasser ventures onto intellectual white water in this piece due to its controversial topic. Not that the reader would realize this from the seemingly innocuous title. His argument is first that those who would dismiss same-sex marriage by invoking the slippery slope to polygamy argument err by blurring distinguishable activities. Reasonable enough. Hackles will rise in the next sections which point out that, even so, "current plural marriage bans are not narrowly tailored enough to withstand the close scrutiny that should be given to statutes that target religious practices." In other words, while gay marriage does not lead to polygamy, the dispassionate reevaluation of the grounds on which both those practices are prohibited leads to the conclusion that "the Free Exercise Clause requires an exception be recognized for some same-sex marriages and for some plural marriages involving consenting adults." His thesis should be taken seriously by anyone interested in what the law actually requires, rather than merely the legal supports for the things they prefer.

A surprisingly balanced presentation of the range of conservative arguments, not all of which will, of course, please gay readers. Jonathan Rauch begins by making a Burkean argument for incrementalism which balances a respect for tradition with acceptance of "gradual, bottom-up social evolution." For him, "the question is not whether same-sex marriage is a conservative policy, but whether it is being implemented in a conservative way." Jesse Choper and John Yoo (of torture memo fame) next argue that while under "existing judicial interpretation, neither the Due Process Clause nor Equal Protection Clause creates a federally-protected right of individuals of the same sex to marry when prohibited by state law," which they do not think states should do. Robert Nagel would unjustly reverse the burden of proof to show that same-sex couples are entitled to the public benefits of marriage. Rather than demanding the state to show why they should be excluded, he believes that "proponents of homosexual marriage must establish ... is that homosexual couples are as entitled as heterosexuals to the public recognition and respect that is an aspect of these legal entitlements." The best article in the series is that by Gerard Bradley. He identifies three liberal "mistakes" put forward in defense of same-sex marriage: that "the law of marriage does not rest upon a view of marriage as, in some basic or essential way, 'procreative'; that biological parents provide the optimal setting to raise children, and that "the law must recognize same-sex relationships as marriages because equal respect for the self-constituting choices of homosexuals and lesbians requires it." The quality of this argument comes not because because he is right -- indeed, each of his three arguments can be turned aside rather easily -- but from the lack of evident disdain for gay men and lesbians and the seriousness of his discussion. Both of these admirable qualities are missing in the piece by Charles Murray, best known for The Bell Curve. He states that because "marriage's role as an institution depends upon its function of perpetuating culture and civilization through the birth and nurturing of children," and therefore "gay marriage is an oxymoron." He is at least consistent in that for similar reasons he would deny marriage to sterile heterosexuals. David Frum wonders what the big deal is, since gay couples have not rushed to get married in those jurisdictions where it has become available. Dale Carpenter provides the final formal presentation, in which he points out that the Burkean conditions for social change are being met, and that, as gay and lesbian couples "are saying 'yes' to a traditionalizing institution...the question for conservatives at the end of the day is, why can't they take 'yes' for an answer?" The transcript of the symposium Q&A is fairly unremarkable, although it did allow one antigay spokesperson to show how unnuanced prejudice can be. When rhetorically asked, "But if the question is, 'Does somebody who has doubts about gay marriage, therefore become hostile to all efforts at being fair and receptive to the more particularized problems gay face?'", Teresa Stanton Collett pipes up, "Perhaps I might."

Are states required by the U.S. Constitution to recognize an adoption degree in another state regardless of the parents' sexual orientation. At least one state -- Oklahoma -- and one high-profile commentator -- Lynn Wardle -- say no, that, in the latter's words, "in many situations nonrecognition of lesbigay adoption decrees would be proper and permissible." Wasserman examines four different rationales to support such a conclusion, finding all to be flawed. Wardle's antigay posture, she argues, is contrary to "both Supreme Court precedent and an overriding policy favoring permanency in parent-child relationships."

This writer maps out the tensions inherent within the First Amendment’s protection of antigay hate speech, on the one hand, and, on the other of the expressive speech of LGBT persons themselves. He opines that these two threads are not independent: hate speech often occurs more frequently in response to expressive speech. The article concludes with the “normative proposal that expanded protection of LGBT expressive speech should lead to increased restrictions of homophobic hate speech.”

This case note was written in the interim between the lower court ruling in Varnum v. Brien, No. CV5965 (Iowa Dist. Ct. Aug. 30, 2007), which upheld the right of six same-sex couples to be issued marriage licenses, and the decision by the Iowa Supreme Court upholding that outcome (763 N.W.2d 862 (Iowa 2009)). Wieland hoped that a decision using the rational-basis test -- the lowest level of scrutiny in equal protection analysis -- would "shift the debate away from the divisive issue of marriage back to human equality -- from 'Do homosexuals deserve the traditional privilege of marriage?' to 'How should we provide equal access to government benefits and protections to all people, including homosexuals?'" The Iowa court has in the past employed a "rational-basis-with-bite test," or a "bare animosity review," and the authors believes that this would be the more appropriate path in the present instance. History has overtaken his arguments, however, as the court chose to uphold the right to same-sex marriage by relying upon an intermediate level scrutiny which requires that "a statutory classification must be substantially related to an important governmental objective." This standard the state could not satisfy.

The Matthew Shepard Act seeks to amend the federal hate-crime law to include sexual orientation and gender identity. Although the act passed the Congress in 2007, then-President Bush threatened to veto the Defense appropriations bill to which it was attached if it came to his desk including that section. Hopes are high that the bill will become law early in the Obama administration. Woods argues that the constitutional authority to pass such a law is to be found not in the Commerce Clause -- an increasingly sketchy basis on which to exert Congressional power -- but in the Fourteenth Amendment's Section 5 enforcement power. He reaches his result by pointing out that the effect of the hate crimes is to prevent victims "from reporting their crimes to the police, influence police officers not to categorize or investigate their crimes as bias crimes, and prevent prosecutors from prosecuting their crimes as bias crimes," the remedy for which falls to Section 5 "to ensure a right of access to the courts."