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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.

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