Same Sex Marriage & The Constitution

Same Sex Marriage and the Constitution argues that same-sex marriage is an important constitutional issue facing society.

"[Gerstmann] asks (and answers) the questions that everyone wants to know and many of us are afraid to tackle." Lambda Book Report"...a well-organized, extremely articulate, and fearlessly logical analysis of the foundations of laws against same-sex marriage..." Perspectives on Political Science"Evan Gerstmann has here presented a carefully crafted, highly nuanced, and imporant argument about same-sex marriage. His conclusion will be controversial, but in the best sense: people will be forced to reckon with his powerful argument." H.N. Hirsch, Macalester College"This book does the best job I have seen in relating the constitutional law and theory of equal protection and the implied fundamental right of privacy to the politics of whether the Supreme Court should decide the important question of the right to same-sex marriage. This well-written, sensitive, and original book will be of invaluable use in undergraduate and law school classrooms. Evan Gerstmann demonstrates the tautological nature of arguments against gay marriage, while still being respectful to alternative arguments such as Sunstein's call for Supreme Court minimalism on this matter." Ronald Kahn, Oberlin College"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. Highly recommended." Choice"Reading Evan Gerstmann's book bolsters my hope that someday justice will come to same-sex couples." Kenneth Sherrill, Political Science Quarterly"...Evan Gerstmann has now produced a forceful and tough-minded brief for the result that Scialia dreads. Careful, interesting. (and) worthwhile."... NEW REPUBLIC December 22, 2003"In Same-Sex Marriage and the Constitution, Evan Gerstmann once again applies his considerable analytical scalpel to an issue of constitutional and moral importance. Showing due regard for competing normative and legal arguments, Gerstmann exposes the weaknesses in exisiting positions on both sides of the debate. He then presents an illuminating and convincing case on behalf of same-sex marriage rights based on a conception of equal protection that is applicable to all citizens, regardless of their sexual orientation. The book will enlighten not only those concerned with the issue of same-sex marriage, but also those interested in jurisprudence, constitutional law, and the relationship between constitutional law and citizenship. Gerstmann's innovative approach points us toward a more productive understanding of equal protection." Donald A. Downs, University of Wisconsin-Madison

This book takes a careful second look at the issue of Constitutional rights and same-sex marriage. Not only does it carefully look at the legal debate, but it also asks whether, in a democratic society, courts should settle this question rather that the voters in the face of public opposition.

Part I. The Challenge of Same Sex Marriage: 1. Introduction; 2. Reason and prejudice: is the heterosexual monopoly on marriage rational?; 3. Looking for stricter scrutiny: sexism, heterosexism, and class-based equal protection; Part II. Marriage as a Fundamental Right: 4.The fundamental right to marry; 5. Same-sex marriage and the fundamental right to marry; Part III. Rights and Equality: 6. Should courts create new rights?; 7. Identifying fundamental rights; Part IV. Rights in a Democratic Society: 8. Democracy, neutrality and consistency of principle; 9. Principles and practicalities; Bibliography.