Same-Sex Cynicism and the Self-Defeating Pursuit of Social Acceptance Through Litigation

71 Pages Posted: 7 Oct 2014 Last revised: 29 Apr 2015

Date Written: October 5, 2014

Abstract

Unrepresented in the literature on same-sex marriage is the perspective of a family law scholar who supports legal marriage for same-sex couples as a matter of policy and morality but denies that same-sex couples have a constitutional right to state-issued marriage certificates. This article exposes the disingenuous distortions and intentional omissions that advocates for same-sex marriage and their supporters in the judiciary and the academy deploy to secure the policy result they desire through the courts. It demonstrates that the same-sex marriage movement's past successes have actually undermined, rather than advanced, their case for court-mandated expansion of legal marriage. It articulates precisely, in a way defenders of state law and judges have generally been unable or unwilling to do, what the state's justification for opposite-sex-only legal marriage actually is -- one quite familiar to family law scholars. And it explains why a litigation strategy for securing dignity is delusional, self-defeating, and unduly dismissive of an American public that has already demonstrated remarkable capacity for "evolving."

Keywords: same-sex marriage, gay rights, marriage, equal protection, fundamental rights, suspect class, procreation, Fourteenth Amendment

Suggested Citation

Dwyer, James Gerard, Same-Sex Cynicism and the Self-Defeating Pursuit of Social Acceptance Through Litigation (October 5, 2014). Southern Methodist University Law Review, Vol. 68, 2015; William & Mary Law School Research Paper No. 09-285. Available at SSRN: https://ssrn.com/abstract=2505754

James Gerard Dwyer (Contact Author)

William & Mary Law School ( email )

South Henry Street
P.O. Box 8795
Williamsburg, VA 23187-8795
United States

HOME PAGE: http://law2.wm.edu/faculty/bios/fulltime/dwyer-648.php

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