Marriage Equality: An Idea Whose Time Is Coming ..., 37 Review of Law & Social Change 245 (2013)
Case, Hollingsworth v. Perry?' Does the state's reinstatement of the exclusion of
lesbian and gay couples from civil marriage violate the Equal Protection Clause?
As I have long argued, the most principled understanding of the clause's text,
original purpose, and precedents requires states to afford committed lesbian and
gay couples equal marriage rights. In an ideal world, where principled
constitutionalism holds sway, even where unpopular or contrary to the personal
preferences of Supreme Court Justices, the exclusion of lesbian and gay couples
from civil marriage would fall.
But the world we live in is one of great normative heterogeneity, and the
United States, even in 2013, is a country whose citizens remain intensely divided
with regard to marriage equality. Until there is greater consensus, the Court
ought to avoid any broad pronouncements on the merits of plaintiffs' claim that
denying marriage equality to lesbian and gay couples violates the Fourteenth
Amendment. In Perry, the Court's best course of action would have been to deny
the certiorari petition altogether. If the Court reaches the merits of the Equal
Protection claim, the Justices ought to affirm the lower court decision based
upon its precedent in Romer v. Evans.
Date of Authorship for this Version
Eskridge, William N. Jr, "Marriage Equality: An Idea Whose Time Is Coming ..." (2013). Faculty Scholarship Series. Paper 4794.