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.”

The tiered analyses under the Equal Protection Clause offer a complicated and not wholly consistent approach to deciding the validity of laws that negatively impact a discernible group. Ewing traces out the shortcomings, noting that the method has been criticized on a number of grounds, including its rigidity revealed in its "all-or-nothing approach. Unless a class meets the criteria for suspect or quasi-suspect status, the Court reviews all classifications under the deferential rational basis standard." He believes that cases litigating the right for same-sex marriage highlight both the standard federal approach's limitations, as well as the alternatives articulated in state courts. Particularly favored is the "unitary analysis" found in Lewis v. Harris, 908 A.2d 196 (N.J. 2006), and Baker v. State, 744 A.2d 864 (Vt. 1999). This alternative incorporates all the concerns of the tiered approach. "In essence, courts should ask whether an impartial lawmaker could rationally believe that the classification would serve a legitimate public purpose that transcends the harm to the members of the disadvantaged class. In assessing the harm to the disadvantaged class, courts should consider the invidiousness of the classification and the importance of the right involved. Against this, courts should balance the importance of the governmental interest and how effectively the classification serves that interest. This unitary standard abandons the current rigidity of tiered analysis and forces courts to conduct a thorough assessment of all relevant equal protection analysis."

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/).

Gerstmann makes some hard arguments in this slim (210 pp.) volume. The goal of the text is to argue that the best argument for same-sex marriage is to be found in the fundamental right to marriage that has already be found by the U.S. Supreme Court in cases from Meyer v. Nebraska, 262 U.S. 390 (1923), to Griswold v. Connecticut, 381 U.S. 479 (1965), to finally Loving v. Virginia, 388 U.S. 1 (1967), Zablocki v. Redhail, 434 U.S. 374 (1978), and Turner v. Safley, 482 U.S. 78 (1987). This approach is not merely the better one, it is, he suggests, the only valid one. He underscores this conclusion with a scathing critique of the sex discrimination argument that had been advanced by the Hawaii Supreme Court in Baehr v. Lewin, 852 P.2d 44 (Haw. 1993). The analogy with Loving fails, he believes, because while the discrimination in that case could be tied to a broader scheme of white supremacy, bans on same-sex marriage cannot be reasonably argued to disadvantage women relative to men. This reading can be somewhat difficult to someone who would prefer to leave every argumentative strategy on the table, but Gerstmann does a good job of showing that the fundamental rights argument is so persuasive that no one who would reject it would then be swayed by the weaker sex discrimination arguments.

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.

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."

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.”

The connecting theme of Nussbaum's accessible and challenging text is the contrast between the position expressed by Lord Patrick Devlin that "when an average member of society...feels disgust at the thought of some behavior that does not directly affect him, we may conclude that this conduct is a 'vice so abominable that its mere presence is an offence.'" In other words, the rights of a minority may legitimately be limited if the majority is repulsed by the thought of contact with that minority. Devlin's position is contrasted with that earlier expressed by John Stuart Mill, that society can only limit the liberty of citizens when their conduct "interferes with nonconsenting others." While this contrast describes multiple areas of social regulation -- prostitution, gambling, alcohol -- Nussbaum uses it to explain the historical treatment of homosexuals in American society from Bowers to Lawrence and Rohmer, with a look toward the future of same-sex marriage, a history which she describes as a movement from pure Devlinism toward one reflective of a more Millian perspective.

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.

The heart of this book is an exhaustive study of the two sodomy cases, Bowers v. Hardwick (1986) and the case that overruled it, Lawrence v. Texas (2003). Richards emphasizes the role of the swing votes in the two cases: Justice Powell, whose change of mind resulted in the ruling upholding the Georgia sodomy law in Bowers, and Justice Kennedy, who wrote the compelling majority opinion in Lawrence. The book also considers the abortion and contraception cases that established the privacy doctrine on which Lawrence is grounded, and the implications of Lawrence for other issues, particularly same-sex marriage. A final chapter considers the nature of judicial review and places Lawrence and the struggle for LGBT rights in the context of other landmark cases.

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'."

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.”

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."

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.