The Growing Acceptance and Legal Recognition of Same-Sex Marriage in America Constitutes a Victory for Reality-Based Thinking

Abstract:     
This paper describes the recent strides towards marriage equality for gays and lesbians in the United States against the backdrop of the growing acceptance of realist philosophy and jurisprudence. Realist analysis now pervades American constitutional law as demonstrated by the adoption of the "rational basis" and "strict scrutiny" standards. Most significantly, constitutionality under Equal Protection is now determined under the reality-based "equality principle" which requires that persons who are similarly situated must be treated alike. To determine whether same-sex couples are similarly situated the courts have relied on expert testimony tested by cross examination as well as Brandeis briefs. The recent legislative enactments and judicial decisions recognizing same-sex marriage represent the triumph of reality-based analysis over traditional forms of legal reasoning.

Number of Pages in PDF File: 19

Keywords: same-sex marriage, marriage equality, legal realism, pragmatism, instrumentalism, Prop 8 Trial, Brandeis brief

JEL Classification: K10, K40

working papers series