In such a fast moving area of the law, there is always the likelihood that events will over take articles. Here, the author is writing before the California Supreme Court has affirmed that then-current state law banning same-sex marriage violated the state constitution (which she favors), and before the subsequent passage of Proposition 8, which amended the constitution to reinstate the ban. Still, works such as this can be helpful to readers looking for a review of the lay of the legal land as it stood at that time.

The student author makes an intriguing proposal built upon the observation that "the debate over gay marriage [has] evolved into a balancing act that considers not only the rights of same-sex couples,but also the rights of these couple's children." Noting the rationales in cases like Lewis v. Harris, 908 A.2d 196 (N.J. 2006), and Hernandez v. Robles, 855 N.E.2d 1 (N.Y. 2006), the author sees a potential opening in arguments for same-sex marriage, one based on "an Equal Protection challenge based on a child's right to presumed legitimacy at birth." While interesting on its face, the article perhaps does not fully confront the unintended fallout of making marriage legitimacy a function of procreation rather than, as it is for heterosexuals, a union between two adults.

The author explores same-sex marriage in the larger social context of the struggle for equal rights for queer people. She begins with a review of the types of discrimination homosexuals have faced over the years. In this context, the author addresses the issues of sodomy, pathology, employment, military service, hate crimes, parental rights, and ultimately family law and marriage. The author then retraces cases in Hawaii, Alaska, and Vermont, leading up to the Goodridge decision legalizing same-sex marriage in Massachusetts, before summarizing the post-Goodridge cases in New Jersey, Connecticut, Maryland, and Iowa, as well as the losses to the same-sex marriage cause in New York and Washington. Finally, the author concludes with her view of what the future may hold for same-sex marriage.

The author compares the arguments against same-sex marriage with the arguments used to oppose interracial marriage. The article begins by recounting the history of miscegenation laws and their ultimate demise in Loving v. Virginia [388 U.S. 1 (1967)]. Then, after a brief history of same-sex marriage case law, the author demonstrates similarities between this debate and miscegenation laws, focusing on the application of the Due Process and Equal Protection Clauses of the U.S. Constitution. The article concludes with a comparison of the African-American community’s unfavorable reaction to the comparison.

The author discusses the Progressive Comparative (PC) Argument and how it is structurally imitative to conservatives’ slippery slope argument in regard to same-sex marriage. The PC argument states that it is irrational for the state to withhold marriage from committed same-sex partners because the state already allows other “unsavory” people to get married. The article provides multiple explanations why same-sex marriage proponents utilize the PC Argument and concludes by stating that such reliance is strategically counterproductive and normatively undesirable.

Cahill discusses the procreation rationale that has been employed in same-sex marriage litigation. The author discusses the idea that same-sex marriage is a type of counterfeit and how this designation has become common in the same-sex marriage debate. Cahill argues that even though the procreationist argument and the counterfeit rhetoric don’t make much sense as separate ideas, they make much more sense when examined together. She analyzes the history of sodomy and miscegenation in counterfeit terms to explain the procreationist rationale for prohibiting same-sex marriage. The author suggests that the image of same-sex marriage (and reproduction) as fraud is circular and revives the imagery of disgust that once surrounded sodomy regulation.

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.

Opinions in four states have recently upheld their bans on same-sex marriage: Hernandez v. Robles, 855 N.E.2d 1 (N.Y. 2006); Andersen v. King County, 138 P.3d 963 (Wash. 2006); Lewis v. Harris, 908 A.2d 196 (N.J. 2006); and Conaway v. Deane, 932 A.2d 571 (Md. 2007). Cox first argues that the reference by both sides to "same-sex marriage" appears to be asking for a new fundamental right, one that is easier for opponents to dismiss than if the case were framed as a denial of a fundamental right to marry. She then looks at the dissenting opinions in these four cases, showing how it is these that "best protect marriage and [how it is that] the dissenting justices[' understanding of marriage] best explains why individuals in same-sex couples seek the right to choose it for ourselves."

Scandinavian countries have offered same-sex couples marriage-like registered domestic partnerships since the early 1990’s. This book examines the implications of the experience in Scandinavia for the same-sex marriage debate in the United States. The book discusses the same-sex marriage debates in the United States and Scandinavia, lessons about the benefits of same-sex marriage as seen in Scandinavia, and whether data about Scandinavian marriage and registered partnerships supports arguments to limit marriage to heterosexual couples. Included are tables depicting gay-friendly state laws, and polls reflecting attitudes toward same-sex marriage. Appendices include the Danish Registered Partnership Act and related documents, and data about Scandinavia including: registered partnerships, marriage demographics, and households with children.

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.

The article provides a survey of an alternative model of marriage within contract and corporations law and seeks to evaluate this model’s potential effectiveness for arguing the recognition of same-sex marriage. After a discussion of the traditional “fundamental rights” path to recognition, the article turns to an examination of the corporations model of marriage and reviews the recent legal scholarship about this model. The author makes predictions regarding how courts might approach this model and concludes with a discussion about how this model could impact current notions of marriage.

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 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."

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.

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.

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.

This article argues that Goodridge v. Dep’t of Health [798 N.E.2d 941 (Mass. 2003)] is consistent with U.S. Supreme Court precedent describing the right to marriage and the protections that the U.S. Constitution affords individuals with respect to this right. In addition, the article argues that in defining the rights of gay men and lesbians, it is appropriate for courts to consider actions by courts and legislative bodies of other countries. The author argues that when courts recognize rights for same-sex couples, they consequently respect the rights and dignity of all individuals.

A student-written note, this piece analyzes the inconsistent stances of those states that deny same-sex couples the right to marry, yet allow them to adopt children. The author urges courts to reconcile these inconsistencies by incorporating broader definitions of family and relationships into same-sex marriage cases. The author suggests that such an approach would allow courts to conclude that gay men and lesbians have a fundamental right to marry that states could not legally impede.

The author argues that we are in the midst of a cultural shift with respect to the societal view of gay men and lesbians. The book begins with a review of the events of the past decade, and a discussion of the prejudices and obstacles still faced by lesbians and gay men. The author dedicates chapters to the issues of sexual privacy (from Bowers v. Hardwick to Lawrence v. Texas), same-sex marriage, equal protection, civil rights (housing, employment, and public accommodations), and gays in the military.

The author focuses on the antisubordination aspect of Loving v. Virginia [388 U.S. 1 (1967)], and how it can be utilized in the same-sex marriage context. The article begins with a summary of the debate which compares antimiscegenation laws to laws banning same-sex marriage and how Loving’s principles of freedom of choice, antidiscrimination, and antisubordination apply in both contexts. The article also argues how same-sex relationships challenge White supremacy and concludes by focusing on same-sex marriage as a civil rights issue.

This article provides an extensive comparison between recent U.S. case law regarding same-sex marriage and the landmark case of Minister of Home Affairs v. Fourie, 2006 (1) SA 524 (CC), which established same-sex marriage in South Africa. The author also analyzes the role that foreign and international law could and should play in deciding future cases and legislation regarding same-sex marriage in the U.S. in light of its consistent reluctance to do so.

Polikoff believes the LGBT community has been too narrowly focused on obtaining access to civil marriage, when the focus should be on creating a legal framework that values all families equally. Her solution will appeal to those who view children as the purpose of creating families -- of her "three principles for valuing all families," for example, the first two concern children, with relationships between adults falling a distant third. Thus, in her model, when designing employer-provided health benefits, my partner will be covered only if there are funds left after providing for everyone else's children (p. 149). Whatever this system might be, it is not one that "values all families equally" since it prioritizes the childless couple as inferior to those with offspring. While her motives to expand protections are admirable, she moreover fails to consider the administrative obstacles to awarding full financial benefits to any aggregate of individuals who present themselves. Her argument is strongest when framed by the family's united front before employers and governments, but weakest when considering how the interests of the various persons are to be weighed when such ephemeral groups--marked by no formalities or registration requirements--disintegrate.

The author argues that marriage (same-sex or otherwise) should be seen as a human right. He contrasts the external benefits of marriage (e.g., relational permanency, financial stability, child-rearing) with its internal benefits (the “connection to individual human dignity via the opportunity it provides its participants to achieve levels of human self-fulfillment”), stating that attainment of the latter should be the true goal of getting married. Despite this ideal, he notes that by limiting marriage rights to securing only its external benefits, as has occurred in recent U.S. same-sex marriage jurisprudence, human dignity is consequently demeaned.

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.

Tamayo provides a critical analysis of the New York Court of Appeals’ decision in Hernandez v. Robles, 855 N.E.2d 1 (N.Y. 2006), which upheld the restriction of marriage in New York state to opposite-sex couples. She argues that the court’s decision is representative of a view of marriage as a static institution which is at odds with historical reality.

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.

In K.M. v. E.G. [117 P.3d673 (Cal. 2005)], the California Supreme Court held that a lesbian who had donated her eggs to her partner and had helped raise the resulting children had legal parentage claims. Zapotocny explores this and other cases involving same-sex unions and the custody of children. The article includes a discussion of California surrogacy law, and an exploration of legal doctrines which may protect same-sex parents.