Legally Wed: Same-Sex Marriage and the Constitution [Hardcover]

Mark Strasser (Author)

Book Description

ISBN-10: 0801434068 | ISBN-13: 978-0801434068 | Publication Date: April 1997 | Edition: 1St Edition

Mark Strasser examines the issue of same-sex marriage in light of contemporary constitutional and domestic relations law, showing why the usual arguments against recognizing such unions are either weak or irrelevant. The Supreme Court has articulated numerous interests promoted by marriage, all of which apply to same-sex as well as opposite-sex couples. According to Strasser, the argument made most frequently to deny recognition to same-sex unions--that marriage exists to provide a setting for the production and raising of children--is in fact a reason to acknowledge such unions. The claim that marriage is for children biologically related to both parents is refuted in the case law, which treats biological and adopted children as legally indistinguishable. Strasser explains Baehr v. Lewin, the precedent setting case in Hawaii, and addresses the implications of state-by-state decisions to ban or recognize same-sex unions. He analyzes what it would mean to say that a policy violates the Equal Protection or Due Process Clauses of the Constitution, and compares biased policies that target gays and lesbians with those that victimize racial minorities. Strasser argues that the Defense of Marriage Act (DOMA) is both unconstitutional and a public policy disaster. It does not give states additional rights with respect to which marriages they need not recognize, Strasser explains, but only with respect to which divorces they need not recognize. For example, DOMA seems to allow an individual to avoid a court-imposed duty to support an ex-spouse of the same sex simply by changing his or her domicile. Moreover, Strasser argues, DOMA is an open invitation for states to demand exceptions that will wreak havoc in domestic relations law. In a reasoned response to conservative arguments about marriage, Legally Wed explicates established and evolving legal principles, and shows how invidiously these have been applied to the issues of gay rights in general and same-sex unions in particular.

Editorial Reviews

From Library Journal

Strasser (law, Capital Univ., Columbus, Ohio) here analyzes the arguments against same-sex marriage one by one and concludes that none achieves legal credibility. He reviews the bars on marriage based on definition, procreation, custody, and protection of children and the debates centered on equal protection. Looking at the recently passed Defense of Marriage Act, he concludes that it may be unconstitutional. The logic of the case presented by Strasser will be debated by lawyers and its success or failure decided by judges in the years to come. As such, this is of great current relevance, but much of the material has already appeared in law reviews, and the legal language may make it more appropriate for special and academic collections. Public libraries should consider Andrew Sullivan's Same-Sex Marriage, Pro and Con (LJ 3/15/97).?Jeffery Ingram, Newport P.L., Ore.
Copyright 1997 Reed Business Information, Inc.

Product Details

• Hardcover: 241 pages
• Publisher: Cornell Univ Pr; 1St Edition edition (April 1997)
• Language: English
• ISBN-10: 0801434068
• ISBN-13: 978-0801434068
• Product Dimensions: 9.2 x 6.2 x 0.9 inches
• Shipping Weight: 1.1 pounds (View shipping rates and policies)
• Average Customer Review: 5.0 out of 5 stars  See all reviews (1 customer review)
• Amazon Best Sellers Rank: #977,904 in Books (See Top 100 in Books)

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5.0 out of 5 stars THE LEGAL BASES FOR SAME-SEX MARRIAGE, September 24, 2010

By 

James L. Park "James Leonard Park" (Minneapolis, MN USA) - See all my reviews
(REAL NAME)   

This review is from: Legally Wed: Same-Sex Marriage and the Constitution (Hardcover)

Mark Strasser
Legally Wed:
Same-Sex Marriage and the Constitution

(Ithica, NY: Cornell UP, 1997) 241 pages
(ISBN: 0-8014-3408-8; hardcover)
(ISBN: 0-8014-8429-4; paperback)
(Library of Congress call number: KF511.S77 1997)

An examination of all the legal and constitutional implications
of attempting to prevent same-sex couples
from having legally-recognized marriages.
There is no compelling state interest in prohibiting same-sex marriages.
Contrary to the claims of opponents, same-race marriages were not sullied
when people of different races were permitted to marry each other.

The state need not have the same rules about marriage
as any given church or religious tradition.
Some very liberal religious bodies now celebrate same-sex unions.
And some religions endorse polygamy.
If same-sex marriages were made legal by any government,
no religious organization would be compelled
to solemnize or recognize such unions.

Denying same-sex couples the right to marry
is denying them the "equal protection of the laws".
The "Defense of Marriage Act" is unconstitutional
because it could only have been born out of
animosity toward a certain class of people.
The only people affected are homosexuals.
Usually the federal government has allowed states
to make their own domestic relations laws.
Now the "Defense of Marriage Act" has announced in advance
that only marriages between partners of different sexes
will be recognized by the federal government
--no matter what the states might do in the future.

Congress did not consider a number of unintended consequences
of the "Defense of Marriage Act".
Could couples of the same sex married in one state
declare themselves unmarried
by moving to a non-recognition state?
Would child-support for a same-sex couple now divorced
be uncollectible in a non-recognition state?

The "Defense of Marriage Act" supports bigotry.
It tells young and old alike
that the federal government discriminates against same-sex couples.
What are people to think when they hear of such a law?
Some will think they are justified
in their own discriminatory behavior against the disfavored group.

This book is rather technical in some places,
but it is a very important book.
Its arguments should have been considered
by the Congress and the President
before passing and signing the "Defense of Marriage Act" in 1996.
And now it should be read by all judges
called upon to rule on the constitutionally of that Act.

Eventually, when same-sex marriages are recognized in some form
--such as state laws permitting people to register as domestic partners--
this book will be seen as one that forged the way forward for legal reform.
It definitely presents only the legal arguments favoring same-sex marriage
--as any good lawyer would do.
Contrary views are only presented to be demolished.
It would be interesting to read another book
by an equally intelligent and knowledgeable person
defending such discrimination against same-sex couples.

If you would like to read other books supportive of same-sex marriage,
search the Internet for these magic words:
"SAME-SEX MARRIAGE--FIRST BOOKS".