76 Pages Posted: 3 May 2010 Last revised: 10 Jul 2013
How should courts think about the right to marry? This is a question of principle, of course, but it has also become a matter of litigation strategy for advocates challenging different-sex marriage requirements across the country. We contend that courts and commentators have largely overlooked the strongest argument in support of a constitutional right to marry. In our view, the right to marry is best conceptualized as a matter of equal access to government support and recognition and the doctrinal vehicle that most closely matches the structure of the right can be found in the fundamental interest branch of equal protection law. Two other arguments have dominated litigation and adjudication so far, but both of them suffer from weaknesses. First, a liberty theory grounded in due process argues that everyone has a fundamental right to civil marriage. But civil marriage is a government program that states likely could abolish without constitutional difficulty. In that way, it differs from other family-related liberties such as the ability to procreate or engage in sexual intimacy. Second, an equality theory suggests that classifications on the basis of sexual orientation are constitutionally suspect. But that approach is unlikely to succeed in the Supreme Court or many state tribunals. Equal access, in contrast, requires states to justify laws that selectively interfere with civil marriage, regardless of any independent due process or classification-based equal protection violations. We show how this approach is grounded in precedent regarding intimate relationships, as well as in analogous law concerning voting and court access. Our proposal offers courts a workable way to evaluate the constitutionality of different-sex marriage requirements and a more satisfying conceptual basis for the right to marry generally. It also suggests a useful framework for thinking about recognition of other nontraditional family structures.
Keywords: same-sex marriage, due process, equal protection, constitutional law, Perry v. Schwarzenegger, marriage, right to marry, family law
Suggested Citation: Suggested Citation
Tebbe, Nelson and Widiss, Deborah A., Equal Access and the Right to Marry. University of Pennsylvania Law Review, Vol. 158, p. 1375, 2010; Indiana Legal Studies Research Paper No. 164; Brooklyn Law School, Legal Studies Paper No. 186. Available at SSRN: https://ssrn.com/abstract=1594361