The Fourteenth Amendment Protects the Right to Same-Sex Marriage
18 Pages Posted: 21 Nov 2010 Last revised: 1 Dec 2010
Date Written: November 21, 2010
Abstract
This essay was prepared for use in a debate in November, 2010, regarding whether gay and lesbian couples have a right to marry under the Fourteenth Amendment. It contends that the right to marry is a fundamental right under the Due Process Clause and that gays and lesbians are a suspect class within the meaning of the Equal Protection Clause, and that therefore laws denying gay and lesbian couples the right to marry are subject to the "strict scrutiny" standard. Furthermore, these laws fail even the "rational basis" test, because there is no legitimate reason to prohibit gay and lesbian couples from marrying. The essay also addresses a number of other arguments commonly raised against same-sex marriage.
This essay is based upon a longer article written by the author and published at 28 North Carolina Central Law Review 1 (2005), "Ohio Issue 1 Is Unconstitutional." Most of that previous article is omitted here, and approximately half of this essay consists of new material. This is a work in progress in this rapidly evolving area of civil rights law.
Keywords: Same-Sex Marriage, Equal Protection, Due Process, Fourteenth Amendment, Civil Rights Movement, Civil Rights, Gay Rights, Gay Marriage
JEL Classification: K19
Suggested Citation: Suggested Citation