Same-sex marriage receives close scrutiny in a University of Virginia Law Review article published in October 2011. After painstakingly laying out alternative decisional pathways for an eventual U.S. Supreme Court opinion, Cornell University Law School professor Michael C. Dorf concludes that there is no scholarly basis for banning gay marriage under the U.S. Constitution.
The stated purpose of Professor Dorf’s monograph is to explore how same-sex marriage bans and civil union statutes might be deemed to violate the Establishment Clause or Equal Protection Clause of the U.S. Constitution.
The article drives home the message that restricting the right to marry based on gender is at the very least a policing and stereotyping of sex roles in a manner inferring that gays and lesbians are second-class citizens. At worst, it is homophobia.
Professor Dorf focuses on two analogies: state-sponsored display of the Confederate flag, and the public school teaching of evolution to the exclusion of creationism. But this blogger finds those examples less relevant to the issue of gay marriage than the opinions of the Supreme Court in granting blacks and whites the right to marry each other, Loving v. Virginia; and in requiring blacks and whites be taught in the same classroom, Brown v. Bd. Ed.
The Supreme Court declared it unconstitutional to create second class citizens based on the color of one’s skin. By the same token, it is the view of this blogger that preventing same-sex couples from marrying — or relegating them to separate but equal civil unions like our formerly separate but equal segregated classrooms — makes second class citizens out of gay and lesbian couples. If states were truly interested in promoting the institution of marriage, they would confer the status based on celebrants’ committed relationship, their love for each other, their cohabitation, and their desire to have children and raise a family. States should not be focused on the gender or sexual anatomy of couples seeking to marry.
by Michael C. Dorf, 97 Va. L. Rev. 1267 (2011).