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Same-Sex Marriage and the Constitution

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Same-Sex Marriage and the Constitution

Same-Sex Marriage and the Constitution, by Evan Gerstmann

The debate over gay marriage is one of the most significant and important social issues facing America today. If gays are denied the right to marry, then homosexual relationships will remain in a second-class status as compared to heterosexual relationships. If gays are afforded the same right to marry as others, then America’s promises of liberty and equality will be expanded to include another group. What does the Constitution tell us about how this issue should be decided?


Title: Same-Sex Marriage and the Constitution
Author: Evan Gerstmann
Publisher: Cambridge University Press
ISBN: 0521009529

• Solid and informative legal analysis of the ban on gay marriage
• Provides good legal arguments in favor of gay marriage

• A very academic book, perhaps not aimed at most readers

• Explains which arguments for gay marriage are legally sound and which are not
• Argues that, on balance, there are better reasons for allowing gay marriage than not
• Argues for new ways to approach constitutional rights and analysis

Book Review

The debate over gay marriage may be political and cultural, but it is also legal. Supporters of gay marriage offer many reasons to think that prohibitions against gay marriage violate a variety of constitutional principles. Defenders of the prohibitions argue that nothing in the Constitution would provide gays with a right to marry — and, just to be sure, many want to amend the Constitution so that it says so explicitly.

Evan Gerstmann set out to write a book against the idea that courts should defend a right to same-sex marriage — he believed that this is a political issue which should be decided in the legislatures, not by unelected judges. In the process, though, he fouind that while some arguments in defense of same-sex marriage rights were poor, others were strong. Ultimately he converted to the position he sought to argue against.

Gerstmann’s is a tough book — not that it’s tough to read, but in that Gerstmann is tough on both sides of the debate. He found that many of the arguments used by supporters of gay marriage rights don’t work. In order to make the best case he can for gay marriage rights, he makes it clear which arguments are sound and which are not, so he doesn’t pull any punches in criticizing some of the more popular legal arguments that are used.

Gerstmann doesn’t believe, for example, that gay marriage should be protected on the theory that gays are a “suspect class” that has historically been discriminated against and needs its rights more carefully protected today. In fact, he rejects the entire “suspect class” line of reasoning in favor of equal protection of fundamental rights for all.

Gerstmann rejects the idea that bans on gay marriage are a form of gender discrimination because the ban treats both men and women equally. If restricting marriage to opposite-sex couples is unconstitutional, then single-sex sports teams would be as well. He doesn’t think that Loving v. Virginia is a good analogy to same-sex marriage because that case was part of an overall system of repression of blacks, while bans on gay marriage are not part of a coherent legal system of repression against gays (even if some would like to see that happen).

How does Gerstmann defend a constitutional right to gay marriage? First, he insists that we think in terms of “fundamental rights” that apply to all. We should focus on rights we all have in common, not rights that apply to specific groups because they have been discriminated against. If gays have a right to marry, it is be because we all have a right to marry that must be protected equally and consistently.

That, in the end, is what Gerstmann argues: gays have a right to marry because we all have a right to marry. The Supreme Court has consistently held that marriage is a fundamental right (it was, in fact, the first right identified as such).

Same-Sex Marriage and the Constitution

Same-Sex Marriage and the Constitution, by Evan Gerstmann

Efforts by the government to restrict or prohibit marriage in specific cases have consistently been struck down. The state can regulate marriage and even prohibit it in some cases, but because of the state’s monopoly power it cannot prohibit marriage from an entire group of people without good reason — and Gerstmann is unable to locate a reason for preventing gays from marrying each other.

Gerstmann spends a lot of time discussing freedom of speech because he considers much constitutional precedent to be confused, contradictory, and even incoherent. The most rigorous and consistent facet of constitutional law today is that concerning free speech — it’s not perfect, but it’s a strong model for how the Supreme Court should protect a “fundamental liberty” irrespective of things like religion, politics, ethnicity, race, or sexual orientation.

If the Supreme Court treated the right to marry like the right to speak (or even just the privilege of getting a driver’s license!), gays would already be marrying. Thus, Gerstmann argues not only for a different way to understand gay rights, but also for a different way to understand rights generally. Whether judges will pay attention and take his ideas to heart remains to be seen, though.

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