Tuesday, March 1, 2011
Adam Farra (University of Maryland School of Law) has posted "Theories of Discrimination & Gay Marriage" (69 Maryland L. Rev. Endnotes 1 (2010)). Here is the abstract:
America is embroiled in a culture war about gay marriage. This culture war has bled into both the federal legal system and various state legal systems. The result is a national patchwork of gay marriage jurisprudence. A variety of courts addressing the same question have arrived at vastly different decisions and rationales, even though the law they applied is not particularly different. The question each court has addressed is whether restricting the institution of civil marriage to heterosexual or ― opposite-sex couples violates some equal protection guarantee or equality principle. The answers are anything but consistent.
This Comment explores the inconsistency and then attempts to explain it. If multiple states are addressing the same question and applying, generally, the same body of law, then why do the results vary so much from state to state? Theoretically, if restricting marriage to heterosexual couples violates some basic principle of equal protection, then that legal conclusion should not change much based on jurisdiction. This Comment argues that the answer is embedded within the assumptions and themes guiding each court‘s moral understanding of discrimination — or, more plainly, why each court thinks discrimination is wrong to begin with.