Synopsis
In Same-Sex Marriage and the Constitution, Evan Gerstmann, a Professor of Political Science at Loyola Marymount University, delivers a compelling and nuanced legal analysis of the constitutional right to same-sex marriage, arguing that it is a fundamental right protected by the U.S. Constitution. First published in 2002, with updated editions reflecting subsequent legal developments, the book stands out for its focus on the constitutional necessity of recognizing same-sex marriage rather than merely advocating for its social or moral desirability. Gerstmann, trained as both a lawyer and a political scientist, grounds his argument in a careful examination of constitutional law, particularly the Equal Protection and Due Process Clauses, while engaging respectfully with opposing viewpoints. His work is noted for its accessibility, avoiding dense legal jargon to appeal to readers interested in same-sex equality, constitutional law, or the Supreme Court’s role in shaping societal norms. The book’s prophetic vision, as later editions highlight, anticipated the 2015 Supreme Court decision in Obergefell v. Hodges, which affirmed a constitutional right to same-sex marriage.
Gerstmann begins by framing same-sex marriage as one of the most significant constitutional issues of our time, as it tests society’s commitment to true legal equality. He explores whether the Constitution protects the right to same-sex marriage and whether courts, rather than voters, should resolve this question in a democratic society. He acknowledges the tension between judicial intervention and public opinion, questioning whether a court-created right could be effective amid opposition. Gerstmann argues that bans on same-sex marriage lack a rational basis, comparing the issuance of marriage licenses to same-sex couples to granting driver’s licenses—neither endorses personal characteristics but provides equal access to state benefits. He critiques the notion that legalizing same-sex marriage endorses homosexuality, emphasizing that marriage is a public act subject to constitutional scrutiny, akin to protections like freedom of speech.
The book delves into the legal foundations of marriage as a fundamental right, drawing on precedents like Loving v. Virginia (1967), which struck down bans on interracial marriage. However, Gerstmann argues that Loving is not a perfect analogy, as same-sex marriage bans involve distinct issues of sexual orientation rather than race. He advocates for grounding the right to same-sex marriage in the Equal Protection Clause, though he notes the Supreme Court’s preference for the Due Process Clause in Lawrence v. Texas (2003) and later Obergefell. Gerstmann critiques the inconsistencies in current Equal Protection jurisprudence, building on his earlier work in The Constitutional Underclass, and proposes a framework for identifying fundamental rights that avoids judicial overreach. He also addresses counterarguments, such as claims that same-sex marriage leads to a “slippery slope” toward polygamy, dismissing these as unfounded while respectfully engaging with scholars like Cass Sunstein, who advocate judicial minimalism.
In its later editions, particularly the third, the book analyzes the Obergefell decision, explaining why the Supreme Court rejected arguments that same-sex marriage bans were irrational, hateful, or a form of gender discrimination, instead affirming marriage as a fundamental right for all couples. Gerstmann discusses the dissenting justices’ concerns about polygamy and the controversy over religious exemptions for businesses refusing to serve same-sex couples. He argues that courts have a legitimate role in enforcing constitutional rights, even against democratic majorities, and that principle, not fear of backlash, should guide judicial decisions. The book also debunks myths, such as the idea that same-sex marriage has been politically damaging for progressives or that courts usurp democracy by protecting minority rights. Gerstmann’s rigorous yet accessible analysis makes the book a touchstone for understanding the constitutional dimensions of marriage equality, offering a roadmap for advocates of fundamental rights jurisprudence.