The Right to Contract: Use of Domestic Partnership as a Strategic Alternative to the Right to Marry Same-Sex Partners
Women's Rights Law Report, Vol. 28, Nos. 2 & 3, p. 145, Spring/Summer 2007
18 Pages Posted: 31 Jul 2011 Last revised: 10 Aug 2011
Date Written: March 30, 2007
Shortly after the Civil War, a series of cases argued that the Civil Rights Act of 1866 gave black Americans the right to make contracts, including a marriage contract, with whomever they chose. While the cases were almost uniformly unsuccessful at that time, this paper argues that claims based on private contracts replicating some of marriage’s benefits, stripped of the social and religious freight of marriage, are more compelling. State constitutional amendments banning not only marriage, but any legal recognition of a marriage-like relationship, demonstrate that animus underlies the prohibitions and that the amendments violate the Equal Protection Clause even under rational basis review.
Keywords: Constitutional law, same-sex marriage
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