Law Commons^™

Baehr V. Lewin: Hawaii Takes A Tentative Step To Legalize Same-Sex Marriage, Marty K. Courson

Golden Gate University Law Review

In Baehr v. Lewin, the Supreme Court of Hawaii sparked a controversy that has potential nationwide implications. The court held that three same-sex couples were entitled to an evidentiary hearing to determine if the State can demonstrate that denying the couples the right to marry under the Hawaii Marriage Law furthers compelling state interests. If the State fails its burden, it can no longer refuse marriage licenses to couples merely on the basis that they are of the same sex. Should this occur, gay marriages will become legal in Hawaii.

Our Past Must Be Our Present (To Ourselves): How Transsexuals Can Survive Proposition 8, Katrina C. Rose

Journal of Race, Gender, and Ethnicity

No abstract provided.

Clarion Call Or False Alarm: Why Proposed Exemptions To Equal Marriage Statutes Return Us To A Religious Understanding Of The Public Marketplace, Taylor Flynn

Faculty Scholarship

This Article discusses the problematic issues arising from proposed religious exemptions to equal marriage statutes. In the Author's view these exemptions would create the societal framework in which lesbians, bisexuals, and gay men can be refused service in virtually all aspects of life, whether fundamental or mundane—from healthcare to housing, from employment to flower-buying. This would all be accomplished with the express permission of the state. The Author believes that these proposals could permit widespread discrimination on a multitude of protected bases. The proposals appear to have been crafted to seize on cultural and religious anxiety and fears concerning same-sex …

Taxing Civil Rights Gains, Anthony C. Infanti

Michigan Journal of Gender & Law

This Article is divided into four parts. In Part I, the nature of the levy that the DOMAs impose on same-sex couples is explained. In Part II, how this levy can be classified as a "tax" is explained. In Part III, the federal- and state-level ramifications of classifying the levy that the DOMAs impose as a "tax" are discussed. Finally, brief concluding remarks are provided that discuss how this Article might pave the way for making similar arguments with respect to other nontraditional families and, concomitantly, how it demonstrates the transformative potential of same-sex marriage.

The Meaning Of Marriage: Immigration Rules And Their Implications For Same-Sex Spouses In A World Without Doma, Scott Titshaw

Scott Titshaw

An estimated 35,000 U.S. Citizens are living in our country with same-sex foreign partners, but with no right to stay here together on the basis of their relationship. Many are faced with a choice between their partners and the country they love. This is true, even if the couple is legally married in one of the growing number of states and foreign countries that recognize same-sex marriage. The Defense of Marriage Act (DOMA), which defines “marriage” under all federal law as an exclusively heterosexual institution, now stands squarely in their way. Reform options that would help these couples to stay …

The Argument For Same-Sex Marriage, Nelson Tebbe, Deborah A. Widiss, Shannon Gilreath

Cornell Law Faculty Publications

Professors Tebbe and Widiss revisit the arguments they made in "Equal Access and the Right to Marry" and emphasize their belief that distinguishing between different-sex marriage and same-sex marriage is inappropriate. They lament the sustained emphasis on the equal-protection and substantive-due-process challenges in the Perry litigation and suggest that an equal-access approach is more likely to be successful on appeal.

Professor Shannon Gilreath questions some of the fundamental premises for same-sex marriage. He challenges proponents to truly reflect on "what there is to commend marriage to Gay people," and points to his own reversal on the question as evidence. Though …

Testing Democracy: Marriage Equality, Citizen-Lawmaking And Constitutional Structure, Francisco Valdes

Articles

No abstract provided.

Civil Rites: The Gay Marriage Controversy In Historical Perspective, Joanna L. Grossman

Faculty Journal Articles and Book Chapters

This short essay, written for a volume that celebrates and reflects on Lawrence M. Friedman’s work in legal history and legal culture, explores the modern controversy about same-sex marriage through a historical lens. The legalization of same-sex marriage by five states, and the express condemnation of it by more than forty others, has reintroduced the age-old problem of non-uniform marriage laws and the complicated interactions that follow. This modern story - a challenge to traditional marriage, a divisive moral debate, and the emergence of strong oppositional forces that are stuck, at least temporarily, but perhaps indefinitely, in a kind of …

Taking Initiatives: Reconciling Race, Religion, Media And Democracy In The Quest For Marriage Equality, Anthony E. Varona

Articles in Law Reviews & Other Academic Journals

Election Days 2008 and 2009 were disappointing ones for advocates of equal rights for lesbian, gay, bisexual and transgender (LGBT) Americans, especially supporters of marriage equality. In this comprehensive article, Professor Varona identifies and examines five interrelated tactical lessons the LGBT movement can glean from these recent defeats. He also provides a roadmap at the end of the Introduction to the article, describing the five subsections devoted to these individual lessons.

Section I, provides an overview of what occurred in the various statewide ballot initiative battles in 2008 and 2009 and then describes the preliminary analyses of the reasons for …

A Marriage Is A Marriage Is A Marriage: The Limits Of Perry V. Brown, Robin West

Georgetown Law Faculty Publications and Other Works

The Ninth Circuit’s decision in Perry v. Brown, authored by Judge Reinhardt, has been widely lauded by marriage equality proponents for its creative minimalism. In keeping with commentators’ expectations, the court found a way to determine that California’s Proposition 8 violated the U.S. Constitution’s Equal Protection Clause, namely that the provision took away an entitlement that had previously been enjoyed by same-sex couples—the right to the appellation of one’s partnership as a “marriage”—for no rational reason. The people of California’s categorization and differential treatment of same-sex couples as compared with opposite-sex couples, the court held, failed the test of …

Eve Sedgwick, Civil Rights, And Perversion, Katherine M. Franke

Faculty Scholarship

It is hard to imagine where queer theory would be without Eve Sedgwick. Indeed, I can't imagine where my own thinking would be had it not been informed, enriched, challenged, repulsed, and seduced by Sedgwick's writing. Between Men: English Literature and Male Homosocial Desire and The Epistemology of the Closet, the early work, gave me the tools to think about the fundamental landscapes of my intellectual world in ways that decoupled and reconfigured the binaries of male/ female, heterosexual/homosexual, friend/lover, and public/private. Sedgwick gave us the idea of homosociality and a critique of identity and identification that exploded the …

Equal Access And The Right To Marry, Deborah Widiss, Nelson Tebbe

Articles by Maurer Faculty

How should courts think about the right to marry? This is a question of principle, of course, but it has also become a matter of litigation strategy for advocates challenging different-sex marriage requirements across the country. We contend that courts and commentators have largely overlooked the strongest argument in support of a constitutional right to marry. In our view, the right to marry is best conceptualized as a matter of equal access to government support and recognition and the doctrinal vehicle that most closely matches the structure of the right can be found in the fundamental interest branch of equal …