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

19 Pages Posted: 23 Apr 2012 Last revised: 23 May 2012

See all articles by Wilson Ray Huhn

Wilson Ray Huhn

Duquesne University - School of Law

Date Written: April 22, 2012

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.

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

JEL Classification: K10, K40

Suggested Citation

Huhn, Wilson Ray, The Growing Acceptance and Legal Recognition of Same-Sex Marriage in America Constitutes a Victory for Reality-Based Thinking (April 22, 2012). U of Akron Legal Studies Research Paper No. 12-10, Available at SSRN: https://ssrn.com/abstract=2043764 or http://dx.doi.org/10.2139/ssrn.2043764

Wilson Ray Huhn (Contact Author)

Duquesne University - School of Law ( email )

600 Forbes Avenue
Pittsburgh, PA 15282
United States

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