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.

Writing as part of a larger symposium on the fortieth anniversary of the Loving decision, Ball considers the detail that the plaintiffs in that famous case were also parents. Laws against miscegenation were often justified in terms of the potential offspring of such unions, and Ball finds that the concerns about children are echoed in today's conservative arguments against same-sex marriage. Both share the feature of essentializing a dualistic understanding of race and gender, leading the author to conclude that while most courts reject the relevance of Loving to same-sex marriage, "that case would seem to be highly relevant to an equality-based challenge to same-sex marriage bans given that the optimal parenting justification for those bans is grounded ... in the idea of natural, essential, and predetermined differences between men and women that is similar to the notion of natural, essential, and predetermined differences between whites and blacks that served as the normative foundation for the antimiscegenation regime."

This student note advances a commonly held, but erroneous argument that marriage is an intrinsically religious institution, and thus civil laws regulating it are unconstitutional. While well-intentioned, the position ignores the historical development of marriage in Western Civilization, in which Christianity came late to having any specific interest in it. The church wedding was elevated to the status of a sacrament only in the fifteenth century, and the presence of a priest required for a valid and binding marriage not until 1563 (see Lawrence Stone, The Family, Sex, and Marriage in England 1500-1800 (1979)). The secular interests in marriage have always been the more fundamental. So while this author argues that the state should cease to regulate marriage and leave these to religion, and instead offer civil unions, in fact it is as validly argued that the proper solution is the reverse.

The author creates a four part typology of state defense of marriage amendments: court-stripping amendments that reserves the question strictly to the legislature; marriage definition amendments that install a one-man-one-woman definition of marriage into the constitution; amendments that ban same-sex marriage and comparable statuses; and amendments banning recognition and the legal incidents thereof. Butland then ascertains the differential impact of the equal protection analysis of Romer v.Evans, 517 U.S. 620 (1996), for each of the four amendment types, concluding that types 3 and 4 violate the Romer standards, while types 1 and 2 do not.

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.

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.”

While much of the debate over same-sex marriage has focused on questions of rights, Culhane directs attention to a different inline of argumentation, that of public health. In this light the central question is whether the public goods from marriage "would be realized by marriage equality?" While assertions that gay marriage would be harmful to society have been "cast in general, speculative terms," the author constructs "a preliminary case that allowing same-sex couples to marry would materially advance public health."

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.

The author contends that the movement in support of same-sex marriage is inconsistent with traditionally recognized human. The author argues that same-sex relationships are distinctly different from heterosexual marriage, and that they “do not fit well with the social and economic characteristics of traditional marriage laws.” The author explores the legalization of same-sex marriage in the Netherlands, Spain, Canada, and South Africa, as well as Massachusetts, and attempts to draw a correlation between legalizing same-sex marriage, and a break-down in the institution of marriage, the family, and community.

Eaton provides in-depth review and analysis of the New Jersey Supreme Court’s decision in Lewis v. Harris, 908 A.2d 196 (N.J. 2006), requiring that same-sex couples be treated equally under the law, but deferring to the legislature the decision of whether or not to call it “marriage”. Ultimately, the New Jersey legislature adopted civil unions instead of same-sex marriage. The author argues that civil unions are inherently unequal.

Transcript of an accessible and at times even entertaining conversation on same-sex marriage. Eskridge argues for strict scrutiny of a form of sex discrimination when same-sex couples are denied marriage licenses. There is perhaps not enough disagreement between Eskridge and his principle discussant, Lawrence Rosenthal, to make this a page-turner, which in itself says a lot about how far the issue has come.

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.

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.

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.”

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.

The author argues that marriage has not been static, but rather has adapted to a changing society. The author then explores the evolution of the non-traditional family during the years leading up to the struggle for same-sex marriage, and ultimately, the Goodridge decision in Massachusetts, before comparing same-sex marriage in Massachusetts with same-sex marriage in other countries such as Canada, South Africa, Belgium, The Netherlands, and Spain. The article concludes with a discussion of interstate conflict arguments that may result from Goodridge.

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.

A common argument against same-sex marriage invokes fears that its practice would incur "negative externalities," or costs borne by those outside the marriage (see, e.g., Charles Murray, "Love Has Nothing To Do With It," 50 S. Texas L. Rev. 77 (2008)). These authors attempt to test this claim empirically, specifically that "same-sex marriage will have negative impacts on marriage, divorce, abortion rates, the proportion of children born to single women, and the percent of children in female-headed households." They compare data from all fifty states for the years 1990, 2000, and 2004, and conclude that no adverse outcomes follow from permitting same-sex marriages or civil unions, and indeed there may be signs of positive outcomes on these criteria. As the depth of data is quite shallow -- gay marriages being allowed in only two states in 2004 -- it is possible that more extensive data covering more years and more gay-friendly states will show a different result. But work such as this represents a welcome relief of solid data in an arena better known for its baseless assertions.

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."

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.

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.

The authors raise the intriguing point that, given the existence of a federal constitutional amendment prohibiting same-sex marriage, no private or public party would have standing to bring suit. In the first case the amendment creates no right, and "the tests for the type of injury sufficient to gain legal standing could not be satisfied by a third party complaining about another's marriage." The Eighteenth Amendment -- "the only relevant case in our constitutional history" -- offers an ambiguous record that the authors suggest failed due to the "infeasibility of federal enforcement" of morality. "Thus, with neither private nor public enforcement actions created by it, the proposed marriage ban would be a provision lacking legal effect."

Pinello chronicles the same-sex marriage movement in the United States by interviewing fifty same-sex couples as well as numerous public officials and interest group representatives. These in-depth interviews are woven together to recreate the story of the struggle for same-sex marriage in communities around the country. He concludes with a discussion of children and same-sex marriage, a comparison of the various same-sex civic models (civil unions, domestic partnerships, reciprocal benefits), and the roles of the courts and legislatures.

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.

In the well-trod path of arguments over same-sex marriage, it is rare to come across a piece that strikes the reader as presenting something new. Here, Poirier refigures the traditionalist arguments against gay marriage in a way that not only makes them more intelligible, and may mark a path toward new and more effective counterstrategies. His thesis is that these claims are of the same sort "as is often made by Native Americans, indigenous, and other culturally-subordinated groups to certain cultural resources -- a right to exclude others in order to protect sacred objects, places, and rituals, so as to preserve and perpetuate group identity over time.... Access to marriage by same-sex couples is understood by traditionalists to threaten the desecration of this ritual, status, and identity" in much the same way that Native Americans believe allowing tourists into areas sacred to them reduce them to the mundane, ordinary, and profane. Poirier does not believe that such traditionalist claims should be determinative -- any more, one might observe, than Native American claims have proven successful in most instances in which they have been asserted -- but the insight offered by the comparison, he hopes, will open up "a different line of potential progressive responses to the traditionalist claim."

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."

Before reading this article one might wish first to become familiar with the works of Patricia Cain on the relationship of the tax code and sexual orientation. Rickey takes her observations a step further, finding in the tensions between DOMA, which forbids recognizing same-sex marriages, and the IRC, "which uses marital status to identify parties likely to collude in order to minimize their collective tax burden," a new way to force the hand of anti-marriage supporters. They must either knowingly "allow a 'homosexual-only tax shelter'" or "recognize same-sex relationships for the purpose of tax law." Forcing the government to make this choice results from what the author calls a "gonzo" tax strategy, one that by insisting upon the strict application of the rules leads to their disruption, which can be contrasted with a "guerilla" strategy of collective disobedience of those rules.

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."

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.

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."

Turner contrasts the two opposing opinions in National Pride at Work v. Governor of Michigan, 2005 WL 3048040 (Mich. Ct. App. Sept. 27, 2005); 732 N.W.2d 139 (Mich. Ct. App. 2007), both of which seek to construe whether the Michigan constitutional amendment prohibiting same-sex marriage also forbids public employers "from conferring employee benefits on the same-sex partners of their employees." The different outcomes, he suggests, are due to the fact that while the trial court is more consistent "with the language of the amendment itself, and also with the principles of constitutional interpretation that both courts claim to agree on," the appellate court imported understandings that marriage "precedes and exceeds the church and state," and is thus extra-legal. In such an environment, "law can describe marriage accurately or inaccurately, but law cannot change what marriage fundamentally is," an assertion that "is antithetical to the Anglo-American legal and political tradition." Even in the absence of overt claims of this kind, such ontological thinking is evidenced by the appellate decision's reliance upon entry criteria to marriage, even though the constitutional amendment speaks in terms of benefits.

Executive review is the ability of the President to interpret and enforce the Constitution; whether this power allows the President to refuse to enforce federal statutes is a matter of current debate. Williams examines executive review at the state and local level. This exhaustive article describes how state constitutions fragment executive authority, and analyzes the ways state courts respond to claims of executive review. The article focuses this discussion on the actions of state and local officials who issued marriage licenses to same-sex couples.

Preservationism, as it is discussed in this article, is a term used to describe the evolving rhetoric of those opposed to same-sex marriage. The author argues that although the underpinning reasoning of those opposed to same-sex marriage is almost uniformly based in religious beliefs, the rhetoric has become more secular in an attempt to “couch…arguments in positive-sounding, seemingly un-bigoted terms.” Preservationism as an argument has been used to support the Defense of Marriage Act (DOMA), as well as the numerous “mini-DOMAs” around the nation and the Federal Marriage Amendment. The author applies the “Lemon Test” from Lemon v. Kurtzman to arrive at the conclusion that laws banning same-sex marriage violate the Establishment Clause of the First Amendment.

Zaske describes the history and current content of U.S. immigration laws which impact homosexuals. Zaske goes on to discuss the Permanent Partners Immigration Act [H.R. 3006, 109th Cong. (2005)]. A comparative analysis of immigration laws from other countries is included in Zaske’s analysis of how PPIA may be implemented.