From Nondiscrimination to Civil Marriage
London School of Economics (LSE); Pace Law School
April 18, 2010
Cornell Journal of Law and Public Policy, Vol. 19, pp. 383-428, 2010
As William Faulkner explained, we must be free not because we claim freedom, but because we practice it. This article analyzes the continuing constitutional struggle for civil rights on the basis of sexual orientation, concentrating on the constitution state's critique of its constitution. Connecticut is currently at the forefront of recognizing civil rights. Connecticut has ruled that discrimination against gay and lesbian persons is subject to intermediate scrutiny, which has historically been used to review laws that employ quasi-suspect classifications such as gender. Civil marriage for same sex couples is legal in Connecticut, Iowa, Massachusetts, New Hampshire and Vermont. New York recognizes marriages by same sex couples legally entered into in another jurisdiction. California’s Proposition 8 renders the Californian Constitution in conflict with itself. This analysis addresses the federal Defense of Marriage Act's impact on same sex couples that marry in Connecticut. It also considers comparative constitutionalism and the evolution of nondiscrimination measures.
Number of Pages in PDF File: 46
Keywords: Civil Marriage, Same Sex Couples, Sexual Orientation, Defense Of Marriage Act, Gay, Lesbian, Constitution, Civil Rights, Discrimination, Human Rights, Suspect Class, Connecticut, Iowa, Maine, Massachusetts, New Hampshire, Vermont, New York, Anti-Discrimination Statute, Religion, Christian, Bible
JEL Classification: A13, D1, D31, D63, D7, D81, H2, H4, H5, H51, H6, H7, H8, I00, I13, J1, J12, J11, J13, J14, J15, J16Accepted Paper Series
Date posted: July 22, 2009 ; Last revised: April 20, 2010
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