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Full-Text Articles in Family Law
The Constitutional Right To (Keep Your) Same-Sex Marriage, Steve Sanders
The Constitutional Right To (Keep Your) Same-Sex Marriage, Steve Sanders
Articles by Maurer Faculty
Same-sex marriage is legal in six states, and nearly 50,000 same-sex couples have already married. Yet 43 states have adopted statutes or constitutional amendments banning same-sex marriage (typically called mini defense of marriage acts, or “mini-DOMAs”), and the vast majority of these measures not only forbid the creation of same-sex marriages, they also purport to void or deny recognition to the perfectly valid same-sex marriages of couples who migrate from states where such marriages are legal. These non-recognition laws effectively transform the marital parties into complete legal strangers to each other, with none of the customary rights or incidents of …
The Argument For Same-Sex Marriage (Debate), Deborah A. Widiss, Nelson Tebbe, Shannon Gilreath
The Argument For Same-Sex Marriage (Debate), Deborah A. Widiss, Nelson Tebbe, Shannon Gilreath
Articles by Maurer Faculty
Perry v. Schwarzenegger, in which a federal district court held California's ban on same-sex marriages unconstitutional, is set for expedited review in the Ninth Circuit; many argue that the case will ultimately be decided by the Supreme Court. The arguments for and against the constitutionality of such statutes are thus at a fever pitch. In an article published earlier this year, Professors Nelson Tebbe and Deborah Widiss argued that marriage rights are best conceived of as an issue of equal access, rather than one of equal protection or substantive due process. Nelson Tebbe & Deborah A. Widiss, Equal Access and …
Equal Access And The Right To Marry, Deborah Widiss, Nelson Tebbe
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 …