Misconstructing Sexuality in Same-Sex Marriage Jurisprudence

41 Pages Posted: 9 Aug 2014

Date Written: January 1, 2011


Drawing on sociology, queer studies, and legal scholarship, this Comment develops a textual methodology to study sexuality in court opinions. In particular, this methodology uses inconsistencies between opinions to highlight how courts rely on cultural assumptions. This Comment applies this methodology to eighteen state same-sex marriage cases, identifying four analytic models of sexuality: sexuality consists only of behaviors; sexuality belongs to lesbians and gays; society should regulate sexuality; and marriage forms a normatively desirable model for sexuality. These models contribute significantly to public discourse over the meaning of sexuality. Applying sociological insights to narrow judicial models of sexuality suggests that courts fail to recognize the diversity of sexuality and its importance to individual identities. This Comment argues that courts should protect same-sex marriage through equal protection, rather than due process, in order to maximize individual autonomy with respect to sexuality. Finally, the Comment considers recent opinions that make progress towards broader judicial understandings of sexuality.

Suggested Citation

Kosbie, Jeffrey, Misconstructing Sexuality in Same-Sex Marriage Jurisprudence (January 1, 2011). Northwestern Journal of Law and Social Policy, Vol. 6, No. 1, 2011, Available at SSRN: https://ssrn.com/abstract=2477617

Jeffrey Kosbie (Contact Author)

Positive Resource Center ( email )

785 Market Street, 10th Floor
San Francisco, CA 94103
United States

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