The Gay Rights Canon and the Right to Nonmarriage

65 Pages Posted: 28 May 2017  

Courtney G. Joslin

University of California, Davis - School of Law

Date Written: May 26, 2017

Abstract

In the line of cases from Romer v. Evans to Obergefell v. Hodges, lesbian, gay, bisexual, and transgender (“LGBT”) people went from outlaws to citizens entitled to dignity and equality. These decisions represent incredible successes for the LGBT rights movement. Some who support LGBT equality, however, argue that these victories came at a great cost: the gay rights canon, it is said, entrenches the supremacy of marriage and the marital family.

Marriage equality skeptics are right to be concerned about this possibility. Marriage is increasingly a marker of privilege. Individuals who marry and stay married are disproportionately likely to be white and more affluent. It is also important, however, not to overlook the more progressive potential of the gay rights canon. This Article reclaims this potential.

This Article offers two novel and important contributions. First, it identifies and gives substance to the constitutional principles of the gay rights canon. Second, this Article uses the principles of the gay rights canon to offer a rereading of Obergefell. This progressive rereading supports, rather than forecloses, the extension of constitutional protection to those living outside marriage.

Keywords: due process, equal protection, Fourteenth Amendment, equality, marriage, gay marriage, nonmarriage, sexual orientation, discrimination, nonmarital

Suggested Citation

Joslin, Courtney G., The Gay Rights Canon and the Right to Nonmarriage (May 26, 2017). 97 Boston University Law Review 425 (2017). Available at SSRN: https://ssrn.com/abstract=2975463

Courtney G. Joslin (Contact Author)

University of California, Davis - School of Law ( email )

400 Mrak Hall Drive
Davis, CA CA 95616
United States
(530) 752-8325 (Phone)

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