Law Commons^™

Before Loving: The Lost Origins Of The Right To Marry, Michael Boucai

Utah Law Review

For almost two centuries of this nation’s history, the basic contours of the fundamental right to marry were fairly clear as a matter of natural, not constitutional, law. The right encompassed marriage’s essential characteristics: conjugality and contract, portability and permanence. This Article defines those four dimensions of the natural right to marry and describes their reflections and contradictions in positive law prior to Loving v. Virginia (1967). In that landmark case, the Supreme Court enforced a constitutional “freedom to marry” just when marriage’s definitive attributes were on the brink of legal collapse. Not only did wedlock proceed in Loving’s wake …

The Unnecessary And Unfortunate Focus On “Animus,” “Bare Desire To Harm,” And “Bigotry” In Analyzing Opposition To Gay And Lesbian Rights, James E. Fleming

Faculty Scholarship

I am delighted to participate in this symposium on Professor Linda C. McClain’s wonderful new book, Who’s the Bigot? Learning from Conflicts over Marriage and Civil Rights Law. All of the other papers in this symposium focus on Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission (and thus connect with Chapter Eight of her book, on claims of religious exemptions from protections of gay and lesbian rights), while my piece will join issue with the related Chapter Seven, on bigotry, motives, and morality in the Supreme Court’s gay and lesbian rights cases. In this brief Essay, I cannot do justice …

Religious Freedom, Human Rights, And Peaceful Coexistence, Leslie C. Griffin

Scholarly Works

At the Second Vatican Council, Fr. John Courtney Murray, S.J., persuaded the Catholic Church to abandon its long, and absolute, opposition to the separation of church and state. He brought a new concept of religious freedom to the Catholic Church. In honor of Murray, this essay looks at several current ways “religious freedom” harms individual rights.

The article describes the ministerial exception, which gives religious organizations the right to dismiss many employment discrimination lawsuits brought against them. It studies women’s right to contraceptive access, which has long been opposed by the Catholic hierarchy, and where employers have earned a legal …

The Family, The State, And American Political Development As A Big Tent: Asking Basic Questions About Basic Institutions, Linda C. Mcclain

Faculty Scholarship

This article, contributed to a symposium on “The Family, the State, and American Political Development”, evaluates the proposition that the relationship between the basic institutions of the family and the state should be more central to the study of American political development (“APD”). It argues that, happily, such relationship is no longer as neglected by scholars as it once was, but that much work remains to be done. The article begins by comparing parallel efforts by pioneering feminist political and legal theorists to put on the table such issues as the public/private distinction between the polity and the family, assumptions …

Up From Marriage: Freedom, Solitude, And Individual Autonomy In The Shadow Of Marriage Equality, Catherine Powell

Fordham Law Review

Obergefell v. Hodges represents a tremendous victory for those of us who believe that each individual has the right to love, form bonds, and create families with whomever one so desires. Through Obergefell and the line of cases from Griswold v. Connecticut and Loving v. Virginia onward, the Court has now repeatedly affirmed the freedoms to plan, to choose, and to create one’s own family as fundamental.

Roberts, Kennedy, And The Subtle Differences That Matter In Obergefell, Joseph Landau

Fordham Law Review

By upholding a nationwide right to marry for same-sex couples in Obergefell v. Hodges, the Supreme Court’s enormously significant decision resolves a major civil rights question that has percolated through our legal system and coursed through our culture for some time. The ruling was not an unforeseen outcome, but it brings welcome clarity by ensuring marriage rights for same-sex couples throughout all fifty states. Building on United States v. Windsor—a 2013 decision striking down section 3 of the Defense of Marriage Act (DOMA), which prevented gay and lesbian married couples from receiving federal benefits—Obergefell is an important and …

The Power Of Dignity, Elizabeth B. Cooper

Fordham Law Review

This Essay juxtaposes the historical and judicial equating of homosexuality and stigma with the Court’s development of a jurisprudence of dignity for gay men and lesbians, culminating in its decision in Obergefell v. Hodges. The language of Obergefell reflects an acceptance of and respect for gay men and lesbians that—regardless of one’s actual desire to marry or attitudes toward the institution of marriage—will profoundly change not only how the law treats LGB individuals, but also how we are treated by others, as well as how we perceive ourselves. I do not mean to assert that Obergefell is without its …

Perspectives On Marriage Equality And The Supreme Court, The Editors

Fordham Law Review

On June 26, 2015, the U.S. Supreme Court decided Obergefell v. Hodges, one of the most significant civil rights decisions in recent years. For many of our generation, the Court’s conclusion that same-sex couples enjoy the constitutional right to marry simply confirmed deeply held beliefs about the importance of marriage equality and inclusion for all. We recognize, however, that for American society more broadly, the decision has evoked strong feelings on both sides of the marriage equality debate. For some, Obergefell delivered a unique gift that was unimaginable even a few decades ago: the ability of same-sex couples to …

Hail Marriage And Farewell, Ethan J. Leib

Fordham Law Review

My conclusion in what follows is that, notwithstanding much rhetoric in the opinion, states have some room to rethink marriage in light of marriage equality. And with some intellectual jujitsu, this opening to rethink the state’s place in relational ordering gives marriage-skeptics another bite at the apple to get something they wanted all along: to decenter the largely religious, gendered, and bourgeois institution of marriage. Justice Kennedy’s opinion has the unfortunate result of reaffirming marriage at the top of a relational hierarchy, yet there are surely other ways we can have civil rights and equality for gay people without marriage …

The Seventh Circuit Finds The Fundamental Right To Marry Includes The Right To Choose One's Spouse, Even In Prison, Lauren B. Wright

Seventh Circuit Review

In recent years, the Supreme Court has continuously reiterated the importance of the right to marry, finding it to be a fundamental right protected by the Constitution. Activists across the nation have celebrated the Court's continued protection of this fundamental right as it has expanded the rights of same-sex couples. What has received somewhat less attention is how the Court's right to marry doctrine has affected a different segment of the population—prisoners. In the United States, there are currently 2.2 million people serving time in our nation's prisons or jails. For many of us, prisoners are people we would rather …

Obergefell'S Conservatism: Reifying Familial Fronts, Clare Huntington

Fordham Law Review

I am delighted with the result in Obergefell v. Hodges, but I am unhappy with the Court’s reasoning. In lieu of a straightforward, and far more defensible, decision based purely on the Equal Protection Clause, Justice Kennedy’s reliance on the Due Process Clause is deeply problematic.

Race, Dignity, And The Right To Marry, Robin A. Lenhardt

Fordham Law Review

Justice Kennedy’s majority opinion in Obergefell v. Hodges asserts legal marriage’s capacity to afford same-sex couples a measure of “equal dignity” and belonging too long denied. In this Essay, I ask whether there is any reason to believe that marriage could do the same for African Americans. Could broader entrance into marriage, as some conservatives suggest, provide Blacks—gay and straight—a measure of belonging that has been frustratingly elusive, even as the nation prepares to celebrate the one hundred and fiftieth anniversary of the Thirteenth Amendment’s ratification?

Lawrence V. Texas: The Decision And Its Implications For The Future, Martin A. Schwartz

Touro Law Review

No abstract provided.

Marriage Rulings In West Virginia, Missouri Rebuke Sixth Circuit, Arthur S. Leonard

Other Publications

No abstract provided.

The Constitutional Right To (Keep Your) Same-Sex Marriage, Steve Sanders

Michigan Law Review

Same-sex marriage is now legal in six states, and tens of thousands of same-sex couples have already gotten married. Yet the vast majority of other states have adopted statutes or constitutional amendments banning same-sex marriage. These mini-defense of marriage acts 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 nonrecognition laws effectively transform the marital parties into legal strangers, causing significant harms: property rights are potentially altered, spouses disinherited, children put at risk, and financial, …

Civil Marriage: Threat To Democracy, Jessica Knouse

Michigan Journal of Gender & Law

This Article argues that civil marriage and democracy are inherently incompatible, whether assessed from a transcultural perspective that reduces them to their most universal aspects or a culturally situated perspective that accounts for their uniquely American elaborations. Across virtually all cultures, civil marriage privileges sexual partners by offering them exclusive access to highly desirable government benefits, while democracy presupposes liberty and equality. When governments privilege sexual partners, they effectively deprive their citizens of liberty by encouraging them to enter sexual partnerships rather than selfdetermining based on their own preferences; they effectively deprive their citizens of equality by establishing insidious status …

Why Marriage?, Suzanne B. Goldberg

Faculty Scholarship

In a well-known New Yorker cartoon, a man and a woman sit together on a couch, clearly in the midst of a conversation about marriage for gay and lesbian couples. “Haven't they suffered enough?” one of them asks. Although the cartoon characters jest, the question of why gay people are fighting so hard for the right to marry is a serious one. After all, marriage rates have been dropping steadily in the United States and in much of the world, and divorce rates remain high. Why, then, are lesbians and gay men fighting so hard to join an institution that …

Why Lesbians And Gay Men Should Read Martha Fineman, Nancy D. Polikoff

American University Journal of Gender, Social Policy & the Law

No abstract provided.

Why Lesbians And Gay Men Should Read Martha Fineman, Nancy D. Polikoff

American University Journal of Gender, Social Policy & the Law

No abstract provided.

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

Cornell Law Faculty Publications

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 …

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

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 …

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 …

Hiv Patients' Right To Marry: Indian-Bangladeshi Laws In Perspective, Dr. Zahidul Islam Biswas

Dr. Zahidul Islam

One of the hotly debated legal issues of the present time is whether HIV patients should have right to marry. Though a good number of countries have already enacted laws giving legal right to marry to the AIDS patients, it is still undecided in most of the countries of the globe. India and Bangladesh are two neighbouring countries which do not have any specific legislation settling the issue, though HIV/AIDS is considered to be a great threat to both Indian and Bangladeshi society. This write-up examines the present legal position regarding this issue in both the countries.

Longing For Loving, Katherine M. Franke

Fordham Law Review

No abstract provided.

Love V. Virginia: The Constitutionality Of The Marshall/Newman Amendment, Pavitra Mohan Ram

ExpressO

My comment explores the constitutionality of a recent amendment in Virginia, the Marshall/Newman Amendment, which bans gay marriage and civil unions between unmarried people, and precludes Virginia from recognizing such arrangements formed in other states. The analysis is particularly timely, because even though the Democrats have regained a majority in Congress, and a traditionally Republican Virginian constituency just elected a Democratic senator, a majority of Virginians adopted this Amendment, indicating conservative values still reign.

The comment argues that the Amendment is demonstrably inconsistent with the mandates of the Fourteenth Amendment of the Federal Constitution. The first provision seeks to ban …

Equal Marriage Rights For Transgendered Individuals , Parker Thoeni

The Modern American

No abstract provided.

Family, Naomi R. Cahn

GW Law Faculty Publications & Other Works

Based on contemporary privacy law, this entry discusses two different aspects of family privacy: (1) the marital relationship and (2) the parent-child relationship. Marital privacy protects several aspects of married life. The first form of marital privacy protects the very decision of whom to marry. While state laws generally establish who may marry whom, the Supreme Court has established the quasi-fundamental nature of the right to marry. The second form of marital privacy involves the right to relational privacy. This constitutionally developed right to marital privacy protects the relationship from undue interference, particularly in the context of sexual decision-making.

There …

Don’T Blame Canada, Arthur S. Leonard

Other Publications

No abstract provided.

Suffer The Little Children: Justifying Same-Sex Marriage From The Perspective Of A Child Of The Union, Lewis A. Silverman

Scholarly Works

No abstract provided.