Marital Status as Property: Toward a New Jurisprudence for Gay Rights
58 Pages Posted: 1 May 2006
The issue of same-sex marriage, generally focused on arguments for the creation of such marriages, has recently centered on issues such as civil rights and equal protection of the laws. However, the preservation of same sex marriages can be justified on other grounds as well. In this article, I examine one such argument: property rights.
In short, I contend that when the state performed same-sex marriages - for example, in Oregon, New Mexico, California, and New York - it conferred a property right on those couples. By later invalidating those marriages, those states worked a taking of property. As such, those couples are entitled to compensation: either in the form of cash or reinstatement of their marriages.
The argument for recognizing a property interest in marital status applies equally to all couples, same-sex and opposite-sex. It requires fundamentally reconceptualizing the way we think about individualism, autonomy, and personal rights in society. Especially in America, property rights enjoy special, near-mythical status. Marital status is important, then, as an idea as well as an institution: demonstrating that we will deploy our most important constitutional protection for the most important social institution.
Keywords: same-sex marriage, gay marriage, takings, property rights
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