Title: Legally Wed: Same-Sex Marriage and the Constitution
Author: Mark Strasser
Publisher: Cornell University Press
Powerful legal analysis not usually found in most books on gay marraige
Several years old - much has happened since, though basic legal issues remain much the same
Analysis of family and marriage laws which apply to the gay marriage debate
Argues that the legal barriers to gay marriage are not sound
Explains how gay marriage should be legal based upon current law and constitutional principle
The legal questions about gay marriage have been made especially intense by events like mayor of San Francisco issuing marriage licenses to gay couples despite the law not being settled and Massachusetts moving towards full legalization of gay unions. The nature of the law, however, has not changed tremendously and thus while it is several years old by this point, Mark Strassers book Legally Wed: Same-Sex Marriage and the Constitution provides a very informative and educational introduction to the issues.
Although the moral and philosophical issues may appear rather straightforward no matter what side of the debate one is on, it cannot be argued that the legal issues are straightforward, obvious, or easy. The laws about marriage, family, parenthood, and states relationships with one another are in fact very complex. They involve contemporary legislation, the Constitution, precedents from numerous court decisions, and common law.
- The right to marry is fundamental and it is a violation of Substantive Due Process for states to abridge fundamental rights without compelling reasons to do so. The Supreme Court has articulated several interests that are served by marriage, all of which apply to same-sex as well as opposite-sex unions. Thus far, states have failed to articulate the compelling interests that are served by same-sex marriage bans.
- Some courts and commentators argue that there is no fundamental right to marry a same-sex partner. The test cited to establish that thesis, however, is not the appropriate test, since it might also be used to establish that there are no fundamental rights to contraception, abortion, or interracial marriage. ...The states refusal to recognize same-sex marriages and the courts complicity in upholding those refusals have implications that affect everyone. The law of domestic relations has to be turned on its head to justify such bans. Such fundamental changes in the law bode poorly for the protection of fundamental rights generally and numerous kinds of family specifically.
What exactly is a marriage? Upon what grounds can a state deny a marriage license to a couple? Upon what grounds can a state refuse to recognize a marriage entered into in another state? What exactly is a family and what do familial ties mean within the law? Who qualifies as a parent and why? All of these questions and more come into play when we consider expanding the legal relationship of marriage to include gay couples. Those completely unfamiliar with any of this will be at a decisive disadvantage when it comes to any substantive debate about the issues.