Can marriage be altered to accommodate same-sex couples and also remain a robust institution for heterosexuals? The author answers this question with an emphatic “no.” The author describes marriage as an institution which effectively regulates procreation, and argues that altering marriage for same-sex couples will create loopholes which can be exploited by selfish heterosexual husbands and wives.

More sociological than legal in emphasis, this article discusses the comments of respondents to a qualitative study of lesbian parents in the United Kingdom. Respondents discuss routes to conception and involvement of fathers in children’s lives.

This article explores the differences in moral reasoning between what are referred to as the “Abrahamic faiths” (Christianity, Judaism, and Islam), and those who support same-sex marriage. In exploring these differences, the author looks at the role of reason in comparison to emotion, the role of children, and the idea of freedom with respect to sexual unions. Finally, the author explores the consequences of adopting the moral reasoning of those who support same-sex marriage, and concludes that it could be detrimental to religious institutions. The author reiterates questions concerning the “legal severance of the tie between sexual love and new life…public ideals about marital fidelity…[and] the subordinate[ion] of the legal importance of biological ties.” The author also is particularly concerned about negative implications for family law, specifically the best interests of the child, adoption, custody, child support, and inheritance.

Parent-child relationships are impacted when states take conflicting positions on whether to recognize a same-sex relationship. The author advocates changes to the Uniform Parentage Act to incorporate more gender-neutral principles, to promote consistency in the law, and to “avoid treating children differently based on their parents’ marital status.”

This discussion of “the presumption of legitimacy” in parenting cases reveals tensions between some feminist theorists and gay rights advocates. The author suggests an approach to parentage cases that emphasizes genetics and gestation as central to recognition of gender equality. In particular, she examines how a biological emphasis may lead to different treatment for heterosexual and lesbian couples, in opposition to gay male couples, who seek legal recognition as parents of a child.

Building on the author’s previous work asserting the morality of gay rights, this article argues that anti-gay adoption statutes in Florida and Oklahoma are immoral because they tangibly harm children (often relegating them to the foster care system) and use children as a means to send a message of disapproval about homosexuality.

The author compares the backlash against desegregation which occurred after Brown v. Board of Education [347 U.S. 483 (1954)], to attacks on gay rights following Goodridge v. Dept. of Public Health [798 N.E.2d 941 (Mass. 2003)]. The author concludes that while backlash cannot be avoided in significant civil rights advances, it can be overcome.

In many states, family law has not responded quickly to accommodate the various permutations of the modern American family. Lesbian and gay families, in particular, are affected by the slow evolution of family law. Some courts, nonetheless, have upheld child support obligations of parents in same-sex families under equitable principles. Similarly, the American Law Institute supports impositions of child support via “parents by estoppel.” The author of this article provides an overview of the topic and supplies an array of recommendations for courts considering the issues.

This article provides an economic analysis of the foster care system and the barriers to entry that same-sex partners must overcome to adopt a child. It argues that providing homosexuals with adoptive and other rights that heterosexuals enjoy would increase demand for adoption and reduce costs of foster care and of social welfare systems.

A general discussion of same-sex parenting is followed by specific attention to the legal status of same-sex co-parents in Missouri, which is unsure at best. This article may be helpful to persons researching developing law on same-sex parenting in conservative states. In the absence of statutory guidelines, the author advocates that courts use equitable theories to protect children born to same-sex couples.

This text takes an interdisciplinary approach to the issue of same-sex marriage, written from the viewpoint of scholars in both law and psychology. The legal scholars begin by tracing the development of the law with respect to adult sexual relations over the past forty years, both at the state and federal levels. The psychology scholars follow with a history of the theories of the origin of homosexuality, and the role that psychologists and psychiatrists have played in shaping public opinion of homosexuals. The text devotes three full chapters to children in queer families, providing empirical evidence in support of gays and lesbians as parents, as well as looking at issues associated with homosexuality and adoption. The book concludes with a review of marriage law in the U.S. and abroad, focusing on the practical benefits of marriage, and ultimately advocates for same-sex marriage.

This is a policy paper in opposition to the Federal Marriage Amendment (FMA). The author outlines four arguments against the FMA: 1) it is unnecessary because federal and state laws already make nation wide same-sex marriage unlikely for the foreseeable future, 2) the FMA is anti-federalist, especially in light of the fact that family law has traditionally been reserved for state regulation, 3) the FMA would cut short the democratic process, and 4) the amendment is poorly constructed overreaching, and possibly does not allow state legislatures the constitutional room to offer any form of legal support for same-sex relationships.

After exploring early Christian views regarding marriage and sexuality, and the historical role of polygamy in the Mormon culture, this article addresses defenses of same-sex marriage under Equal Protection and Due Process grounds. (The author extends Equal Protection doctrine to same-sex marriage, but concludes that Due Process “has not evolved enough to include same-sex marriages.”) After setting the stage, the author then responds to the common “slippery-slope” argument that legalization of same-sex marriage will lead to legalization of other forms of marriage, specifically polygamy. Ultimately, the author concludes that polygamy is distinguishable from same-sex marriage because “the history of plural marriage in the United States reveals a pattern of sexual abuse, incest, child-brides, poverty, and discrimination against women.”

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.

The same-sex marriage debate assumes that government should promote and define marriage. Davis argues for an alternative model where government would protect marriage-like relationships by enforcing private agreements. The article discusses the impact of governmental promotion of marriage, and the costs and benefits of moving to an alternative model.

This rich legal history of same-sex parenting in America is punctuated by detailed analysis of significant cases from around the country. A traditional approach is presented in Nancy S. v. Michele G. [279 Cal. Rptr. 212 (Ct. App. 1991)], while a third-party treatment of same-sex coparents appears in five cases: In Re Olivia H. [101 Cal. Rptr. 2d 364 (Ct. App. 2000)]; In Re E.L.M.C. [100 P.3d 546 (Colo. Ct. App. 2004)]; In Re H.S.H.-K. [533 N.W. 2d 419 (Wis. 1995)]; E.N.O. v. L.M.M. [711 N.E. 2d 886 (Mass. 1999)]; and T.B. v. L.R.M. [786 A.2d 913 (Pa. 2001)]. Judicial recognition of same-sex coparenthood occurs in two analyzed cases: V.C. v. M.J.B. [748 A.2d 539 (N.J. 2000)] and In Re L.B. [122 P.3d 161 (Wash. 2005)]. Assisted reproduction cases involving same-sex parents include: Rubano v. DiCenzo [759 A.2d 959 (R.I. 2000)] and Elisa B. v. Superior Court [117 P.3d 660 (Cal. 2005)]. Enforcement of child support obligations in alternative insemination circumstances is discussed in Kristine H. v. Lisa R. [117 P.3d 690 (Cal. 2005)]. In addition to these listed cases, which are discussed in detail, several related cases receive passing attention. The article will be especially valuable to attorneys and researchers seeking citations and legal arguments.

Why has the right to marry emerged as a top priority for the gay community? What are the costs of this choice? Franke shows how the focus on marriage limits our identity, excludes many of us, and distracts away from issues of greater concern, such as the militarization of foreign policy.

This article includes a short essay and the brief filed by history and family law professors in the New York appellate case, Hernandez v. Robles [7 N.Y.3d 338 (2006)]. The essay posits that arguments against same-sex marriage rely upon an inaccurate history of marriage. The brief traces the history of marriage in New York State. Both the brief and the article show that marriage has not remained consistent over time, and has not always been connected to procreation.

Goldhaber considers the impact on children of state Defense of Marriage Acts (“mini-DOMAs”), which deny recognition of the legal status of same-sex couples. It argues these states should allow both biological and non-biological parents in same-sex couples to have visitation/custody rights, when it would be in the best interest of the children.

With an abundance of photographs alongside personal accounts, this book documents the events leading up to the landmark Massachusetts Supreme Court decision of Goodridge v. Department of Public Health, which legalized same-sex marriage in Massachusetts. It also takes a look back at the history of the gay rights movement in Massachusetts and to a lesser extent the nation as a whole.

When legislatures and courts refuse to recognize same-sex marriages and same-sex civil unions, they usually reject same-sex intestacy rights as well. The author of this article posits that states may reject formal recognition of the relationships for public policy reasons while still recognizing intestacy rights of survivors to a same-sex marriage or civil union. She says that this compromise allows states to exercise powers under the Full Faith and Credit Clause while still respecting the likely donative intent of a decedent and preserving wealth that two same-sex partners jointly generate.

All the usual suspects in the same-sex marriage controversy are summarized: DOMA, constitutional amendments, full faith and credit, and conflict of laws. Although readers who are familiar with this area of law will find little new material, the article provides a fine introduction to the issues.

Recounting the famous civil rights test cases which led to the “separate but equal” doctrine and eventually the decision in Brown v. Board of Education of Topeka overturning that doctrine, this note draws parallels to the same-sex marriage test cases of today. The author begins with a history of support structures—“ organizations with political and financial backing that seek social change using the test case strategy among other tools.” Specifically, the author discusses the Brotherhood of Liberty and the Baltimore NAACP, and compares those organizations to GLAD, the Human Rights Campaign, and Lambda Legal. The author concludes that same-sex marriage test-case litigation has been successful in humanizing the issue, thus garnering public support. The author also encourages support structures to supplement their test-case strategy with “legislative advocacy and public protest to complement the litigation already in progress.”

Former partners of lesbians who choose to become parents through alternative insemination may be required to provide child support under varying legal theories, including estoppel and conflicts with public policy. Scenarios are presented through close examination of four court opinions: Elisa B. v. Superior Court [117 P. 3d 660 (Cal. 2005)]; Kristine H. v. Lisa Ann R. [117 P.3d 690 (Cal. 2005)]; L.S.K. v. H.A.N. [813 A.2d 827 (Pa. Super. Ct. 2002)]; and T.F. v. B.L. [813 N.E. 2d 1244 (Mass. 2004)]. After a survey of the case law landscape, the author offers “precautionary measures for same-sex parents” that may protect the interests of their children.

Using equal protection analysis, the author of this comment hypothesizes that anti-gay partnership laws cannot survive rational basis review because their scope is too far-reaching. On the other hand, he suggests that anti-gay marriage laws may survive rational basis review because they are tailored to address concerns about family and children. Romer v. Evans [517 U.S. 620 (1996)] and Equality Foundation of Greater Cincinnati, Inc. v. City of Cincinnati [128 F.3d 289 (6th Cir. 1997)] receive special attention as the author attempts to draw the distinction.

Adapted from a dissertation written by a sociology scholar, this text seeks to capture the cultural debate for and against same-sex marriage. The author examines the debate from a sociological perspective, and places the dialogue into context with interviews from same-sex couples. She argues that the language of the debate on both sides of the issue is deeply rooted in cultural ideology, and draws parallels to show that both sides are using similar arguments to arrive at different conclusions.

HRW provides a comprehensive report of U.S. immigration law and its effects on same-sex couples in the U.S., illustrated through compelling personal stories. Same-sex binational couples do not have the right to marry in the U.S.; consequently, such relationships do not enjoy the same privileges of immigration as their heterosexual counterparts. HRW, while it supports marriage equality, sees immigration equality as a separate issue, and advocates for the passage of the Uniting American Families Act (UAFA), which would add the category “permanent partner” to the classes of family members entitled to sponsor a foreign national for U.S. immigration. This report explores the history of exclusion from immigration in the U.S. based on gender and sexuality from McCarthyism to the HIV ban, and then reports on the lack of progress that has been made with respect to obtaining visas and immigration status for same-sex binational couples. Appendices to the report include the text of the UAFA, a list of countries protecting same-sex couples’ immigration rights, census information on binational same-sex couples in the United States, and a list of organizations that work with LGBT immigrants, asylum seekers, and binational couples.

Many Native American tribal governments recently enacted legislation which prohibits same-sex marriage. Jacobi argues that such legislation conflicts with traditional tribal values, which tolerated homosexuality. Jacobi explores the recent case of two Cherokee women who married, and how various tribes treated “two-spirit” (homosexual) individuals before European contact. Jacobi concludes by arguing that for many tribes, same-sex unions reflect historical tradition.

While holding in favor of same-sex litigants, remedial relief was delayed by the courts in both Goodridge v. Dept. of Public Health [798 N.E.2d 941 (Mass. 2003)] and Baker v. State [744 A.2d 864 (Vt. 1999)]. This author examines the doctrinal and political reasons for this delay. The author also discusses whether Goodridge was responsible for the 2004 presidential election, and whether Goodridge caused a political backlash against gay rights.

This article discusses the novel question of whether takings jurisprudence can apply to same-sex marriage. Jois argues that marital status should be protected as a property interest, and applies the elements of a takings claim to cases where same-sex marriages were legalized or performed. States discussed include Massachusetts, Oregon, California, New Mexico, New York, and Maryland.

Relying heavily on miscegenation cases, this book attempts to apply choice of law doctrines to same sex marriages in the U.S. It examines the rules of marriage recognition, legal precedents originating from the interracial marriage controversy, and the public policy for and against same sex marriage. It surveys choice of law rules, and it proposes rules to determine when, and when not, to recognize same sex marriages.

The evolution of same-sex parenting rights in California is given both a historical and a theoretical examination in this article. The Uniform Parentage Act (UPA) and recent decisions by the California Supreme Court receive the bulk of attention: Elisa B. v. Superior Court [117 P.3d 660 (Cal. 2005)]; K.M. v. E.G. [117 P.3d 673 (Cal. 2005)]; and Kristine H. v. Lisa R. [117 P.3d 690 (Cal. 2005)].

In anticipation of a showdown between state and federal law, this author argues that the federal Defense of Marriage Act (DOMA) is unconstitutional in that it usurps state rights, under the Tenth Amendment, to define marriage. The author also explores the Due Process and Equal Protection claims against DOMA. Specifically, the author is concerned that a federal court may not extend the spousal privilege to same-sex spouses, thus requiring one same-sex spouse to testify against the other, or risk being held in contempt of court.

Lester first explores the debate within the gay community regarding whether marriage should be the focus of gay rights activism. To tease out an answer to the question presented in the title, Lester discusses the Tenth and Fourteenth Amendments, Loving v. Virginia [388 U.S. 1 (1967)], Romer v. Evans [517 U.S. 620 (1996)] and Lawrence v. Texas [539 U.S. 558 (2003)]. Lester analyzes the opinions of each current Justice for indicia of future rulings, and concludes that a same-sex marriage victory may occur in the Supreme Court.

Alaska Civil Liberties Union ex. rel. Carter v. Alaska [122 P.3d 781 (Alaska, 2005)] struck down a provision which limited public employee benefits to spouses. Carter is significant because it was the first state court decision which extended public employee benefits to same-sex couples in a state with a marriage amendment. Lobsinger first explores the history of Alaskan laws pertaining to same-sex couples. He then analyzes whether Carter may act as a model for other states who must navigate between rights for same-sex couples and state DOMAs.

Proposed legislation in the Texas Senate would prevent lesbians and gay men from becoming foster parents. A Fourteenth Amendment analysis of the legislation is followed by a discussion of a Florida case, Lofton v. Secretary of the Department of Children and Family Services [157 F. Supp. 2d 1372 (S.D. Fla. 2001)], in which a federal court upheld a Florida ban on adoptions by lesbians and gay men. Rather than discriminate by statute, the author suggests a case-by-case approach to child placement that includes sexual orientation as one among multiple considerations.

The author explores the due process and equal protection analysis used by courts in same-sex marriage cases, and the effect of public attitudes on case outcome. The author concludes that courts are side-stepping constitutional principles to craft holdings which conform to public opinion.

After examining the interaction between state supreme courts and legislatures, Miller turns his attention to Massachusetts. Miller explores the different institutional perspectives held by the court and legislature, and concludes that greater communication is needed between these two branches of government.

This article explores the implications of Goodridge (legalizing same-sex marriage in Massachusetts) on real estate law in Massachusetts as compared to other states in the New England region. The author concludes that although same-sex couples can now marry in Massachusetts, they “are not free to hold title as tenants by the entireties and enjoy all of the rights and benefits afforded them as such.” Rather they are joint tenants, which the author argues is an important distinction—as joint tenants, the couple will act as two individuals, whereas in a tenancy by the entirety “the cotenants are intrinsically linked together in their ownership ‘as one person.’” In comparing Massachusetts with other states in the New England area, the author found the laws in Vermont and New Jersey (both of which have civil unions as opposed to marriage) to be much more explicit, extending the rights of tenancy by the entirety to same-sex couples.

While advocating a restricted judicial role and a narrow reading of constitutional mandates, Walker posits that the decision in Lawrence v. Texas [539 U.S. 558 (2003)] strengthens the claims of polygamists for constitutional protection. To bolster his argument, the author reviews the central polygamy case, Reynolds v. United States [98 U.S. 145 (1878)] and Goodridge v. Department of Public Health [798 N.E. 2d 941 (Mass. 2003)]. Walker informs readers in footnote 1 that he does not advocate polygamy.

Thomas Paprocki is an Auxiliary Bishop of Chicago and Adjunct Professor at Loyola University Chicago School of Law, and this article is taken from his remarks at a conference on the legal issues of same-sex relationships. Paprocki presents the Catholic viewpoint in opposition to same-sex marriage. He argues that the nature of marriage as a union of one man and one woman is rooted in human history, and that simply because the church supports this status quo, it does not imply a violation of the First Amendment Establishment Clause. He also compares civil law with natural law, while making the claim for the uniqueness of procreation.

K.M. v. E.G. [117 P.3d 673 (Cal. 2005)] is the focus of this discussion of the Uniform Parentage Act (UPA). The author asserts that the court improperly applied the UPA, although she supports the ultimate outcome of the case, in which each lesbian partner was granted the status and duties of a “parent.”

Pingree delves extensively into the historical details of the cultural and legal furor surrounding Mormon polygamy that culminated in the decision of Reynolds v. U.S. [98 U.S. 145 (1878)]. He pays special attention to the rhetorical depiction of the practice, believing that the insights extracted from this study can productively inform other debates occurring at the same intersection of autonomy and community, not least that about same-sex marriage.

This book describes the United Kingdom’s Civil Partnerships Act 2004, which recognizes the legal status of same-sex relationships, and examines the Act’s provisions and impact in areas such as tax, inheritance and parenting, as well as international aspects and the role of courts in dissolution proceedings.

Advances in assisted reproductive technology (ART) have begun to diminish the “genetic link in defining parentage.” Increasingly, legislatures and courts are recognizing the importance of “social parents,” who act as parents to children although possessing no genetic link. The author defines lesbian legal theory and then uses this critical method to examine the link, or lack thereof, between genetics and parenthood. Finally, she examines how ART and morphing social patterns are affecting the evolution of American family law.

Written by a legislative attorney with the American Law Division of the Congressional Research Service, this report provides a comprehensive review of the current state of same-sex marriage laws in the U.S. Beginning with the federal Defense of Marriage Act (DOMA), the author explores potential constitutional challenges, specifically focusing on the Full Faith and Credit Clause, Equal Protection, and Due Process. The report then turns to the states, with a discussion of interstate recognition of same-sex marriage, and individual states’ responses to same-sex marriage. The discussion includes so-called mini-DOMAs, state constitutional amendments, and civil union laws. Ultimately, the author concludes that under Romer v. Colorado and Lawrence v. Texas, it is unclear whether statutes banning same-sex marriage would stand up to a constitutional challenge.

Written from the perspective of an associate professor of government and politics, as opposed to a legal scholar, this book presents the political theorists view of same-sex marriage in a democratic society by drawing on the works of John Locke, Immanuel Kant, and John Stuart Mill, among others. The author’s central argument is that democracy does not merely allow, but requires the legalization of same-sex marriage, even if the majority of Americans are opposed to it. She reasons that democracy is not merely majority rule, but rather democracy requires equality among citizens. Specifically, the author considers the legal principles of equality, separation of church and state, individual rights and liberties, and personal autonomy. Then, she responds to the opposition from what she calls three different strands of conservatism: religious conservatives, traditionalists, and conservative communitarians. Finally, the author responds to liberal academic critics of same-sex marriage.

This is a three-volume treatise with articles written by noted legal scholars. The first volume is titled “Separate but Equal No More: A Guide to the Legal Status of Same-Sex Marriage, Civil Unions, and Other Partnerships.” It includes articles on civil unions, domestic partnerships, the legalization of same-sex marriage in Massachusetts, corporate domestic partnership benefits, lessons learned from San Francisco, the federal Defense of Marriage Act, the federal Marriage Amendment, adoption, custody, and the rights of children.

The second volume is titled “Our Family Values: Same-Sex Marriage and Religion.” The volume includes articles on same-sex marriage and Hindus, Buddhists, Muslims, Lutherans, Presbyterians, Catholics, Unitarians, Pentecostals, Episcopalians, Methodists, Christians generally, Jews, sexuality and the black church, and historical reflections on religion and the freedom to marry in America.