Same-Sex Marriage and the Constitution / Edition 2

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Does the Constitution protect the right to same-sex marriage? Much of the writing on this subject has been highly one-sided. This book takes a careful second look at the issue. Not only does it carefully look at the legal debate, but it also asks whether, in a democratic society, the courts should settle this question rather than the voters and it takes on the issue of whether such a court-created law could be effective in the face of public opposition. The book argues that this issue is one of the most significant constitutional issues facing society because it challenges society's commitment to the promise of true legal equality.
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Editorial Reviews

The Washington Post
By the time you read this, the Massachusetts Supreme Court may have decided whether or not the Constitution protects a right to gay marriage. Regardless of what the court decides, it will hardly settle what has become one of our most hotly contested constitutional debates. Evan Gerstmann's new book, Same-Sex Marriage and the Constitution, won't settle it either; but it is a clear and fair-minded guide to the strengths and weaknesses of the leading constitutional arguments for and against gay marriage.—Jeffrey Rosen
From the Publisher
"[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

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Product Details

  • ISBN-13: 9780521709132
  • Publisher: Cambridge University Press
  • Publication date: 12/31/2007
  • Edition description: Revised Edition
  • Edition number: 2
  • Pages: 248
  • Product dimensions: 5.98 (w) x 8.98 (h) x 0.55 (d)

Meet the Author

Evan Gerstmann is Associate Professor and Chair of Political Science at Loyola Marymount University in Los Angeles. He holds a Ph.D. from the University of Wisconsin–Madison (1996) and a J.D. from the University of Michigan Law School (cum laude, 1986). He is the author of two books on constitutional law: Same-Sex Marriage and the Constitution (2003) and The Constitutional Underclass: Gays, Lesbians, and the Failure of Class-Based Equal Protection (1999), and has coauthored a third book, Academic Freedom at the Dawn of a New Century: How Terrorism, Governments, and Culture Wars Impact Free Speech (2006). His other publications have appeared in PS: Political Science and Politics and The Journal of International Law and International Relations, and his works have been reviewed in numerous journals, including The New Republic, The Washington Post, The Nation, and The Chronicle of Higher Education.
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Table of Contents

Pt. I The Challenge of Same-Sex Marriage
1 Introduction 3
2 Reason and Prejudice: Is the Heterosexual Monopoly on Marriage Rational? 13
3 Looking for Stricter Scrutiny: Sexism, Heterosexism, and Class-Based Equal Protection 41
Pt. II Marriage as a Fundamental Constitutional Right
4 The Fundamental Right to Marry 67
5 Same-Sex Marriage and the Fundamental Right to Marry 85
Pt. III Rights and Equality
6 Should Courts Create New Rights? 115
7 Identifying Fundamental Rights 134
Pt. IV Rights in a Democratic Society
8 Democracy, Neutrality, and Consistency of Principle 159
9 Principles and Practicalities 194
Bibliography 211
Index 219
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