Cover image for Same sex marriage and the Constitution
Same sex marriage and the Constitution
Gerstmann, Evan.
Personal Author:
Publication Information:
Cambridge [England] ; New York : Cambridge University Press, 2004.
Physical Description:
xiii, 222 pages ; 24 cm

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Material Type
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KF539 .G47 2004 Adult Non-Fiction Non-Fiction Area

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Does the Constitution protect the right to same-sex marriage? Much of the writing on this subject has been highly one-sided. This book takes a careful second look at the issue. Not only does it carefully look at the legal debate, but it also asks whether, in a democratic society, the courts should settle this question rather that the voters and it takes on the issue of whether such a court-created law could be effective in the face of public opposition. The book argues that this issue is one of the most significant constitutional issues facing society because it challenges society's commitment to the promise of true legal equality.

Author Notes

Evan Gerstmann is an Associate Professor at Loyola Marymount University

Reviews 2

Publisher's Weekly Review

In this provocative legal study, Gertsmann drills deep into the gay marriage debate, beyond the well-mined rhetoric of "gay rights," to focus on the true bedrock of Americans' freedom: the Constitution. According to the author, one of the most important issues challenging the Constitution's promise of legal equality is same-sex marriage. "[Marriage] was one of the first fundamental rights the Court recognized," writes Gertsmann. "Far from being limited to a racial context, it has been applied to individuals whom society has every reason to punish, individuals whose fitness for marriage and parenthood could be doubted." So why has same-sex marriage remained the exception to this fundamental right to marry? Early in the text, Gertsmann wisely concedes that it is not "irrational" for a society to ban same sex marriage, because legalizing these unions could be seen as an endorsement of homosexual relationships, much like legalizing heroin could be seen as a government endorsement of drug use. But while Gertsmann offers an understanding of why society is dragging its heels to the gay-marriage altar, he argues that giving gay couples marriage licenses no more endorses their homosexuality than giving them driver's licenses does. "In each case, the state is simply granting certain benefits to its citizens without respect to their sexual orientation," he writes. The author's balanced, well-measured defense of same-sex marriage argues that the most personal of decisions (whom we marry) will continue to be treated as a public act and, therefore, will continue to be stymied by government interference until the courts consider the right to marry with "the same rigor and consistency" that they apply to another touchstone of the Constitution: freedom of speech. (Oct.) Copyright 2003 Reed Business Information.

Choice Review

In its analysis of statutes passed by majoritarian institutions, the US Supreme Court applies heightened scrutiny whenever statutes pertain to "suspect" (or, in the case of sex, "semisuspect") classifications or when they abridge "fundamental" rights (substantive rights not explicitly laid out in the Constitution). Gerstmann enters the discussion on a hotly debated legal and public policy issue in arguing that the latter concept should be applied in Court analysis of bans on same-sex marriage. This fundamental right notion undergirds the majority opinion in the 2003 Goodridge v. Department of Public Health decision--handed down soon after the book's publication--in which the Massachusetts high court interpreted that state's bar to same-sex marriage to be in conflict with the state constitution. In presenting his argument in a step-by-step manner and in clear text, Gerstmann responds to critics from the Right and Left. Gerstmann has developed a vitally important work in the ongoing legal debate over same-sex marriage. He presents an insightful framework for the Court's recognition of fundamental rights more generally--an area of constitutional interpretation that he terms a "shambles" at present--and makes a strong argument that principle, rather than the potential of a backlash against an unpopular Court decision, should guide jurists. ^BSumming Up: Highly recommended. Upper-division undergraduates and above. J. Barth Hendrix College

Table of Contents

Prefacep. ix
Acknowledgmentsp. xiii
Part I The Challenge of Same-Sex Marriage
1 Introductionp. 3
2 Reason and Prejudice: Is the Heterosexual Monopoly on Marriage Rational?p. 13
3 Looking for Stricter Scrutiny: Sexism, Heterosexism, and Class-Based Equal Protectionp. 41
Part II Marriage as a Fundamental Constitutional Right
4 The Fundamental Right to Marryp. 67
5 Same-Sex Marriage and the Fundamental Right to Marryp. 85
Part III Rights and Equality
6 Should Courts Create New Rights?p. 115
7 Identifying Fundamental Rightsp. 134
Part IV Rights in a Democratic Society
8 Democracy, Neutrality, and Consistency of Principlep. 159
9 Principles and Practicalitiesp. 194
Bibliographyp. 211
Indexp. 219