Same-Sex Marriage and the Constitution (Paperback)

~ (Author) "This book is about same-sex marriage as a fundamental constitutional right..." (more)
Key Phrases: countermajoritarian problem, heterosexual monopoly, principled adjudication, First Amendment, United States, New York (more...)

Editorial Reviews

From Publishers Weekly

In this provocative legal study, Gertsmann drills deep into the gay marriage debate, beyond the well-mined rhetoric of "gay rights," to focus on the true bedrock of Americans' freedom: the Constitution. According to the author, one of the most important issues challenging the Constitution's promise of legal equality is same-sex marriage. "Marriage was one of the first fundamental rights the Court recognized," writes Gertsmann. "Far from being limited to a racial context, it has been applied to individuals whom society has every reason to punish, individuals whose fitness for marriage and parenthood could be doubted." So why has same-sex marriage remained the exception to this fundamental right to marry? Early in the text, Gertsmann wisely concedes that it is not "irrational" for a society to ban same sex marriage, because legalizing these unions could be seen as an endorsement of homosexual relationships, much like legalizing heroin could be seen as a government endorsement of drug use. But while Gertsmann offers an understanding of why society is dragging its heels to the gay-marriage altar, he argues that giving gay couples marriage licenses no more endorses their homosexuality than giving them driver's licenses does. "In each case, the state is simply granting certain benefits to its citizens without respect to their sexual orientation," he writes. The author's balanced, well-measured defense of same-sex marriage argues that the most personal of decisions (whom we marry) will continue to be treated as a public act and, therefore, will continue to be stymied by government interference until the courts consider the right to marry with "the same rigor and consistency" that they apply to another touchstone of the Constitution: freedom of speech.
Copyright 2003 Reed Business Information, Inc. --This text refers to the Hardcover edition.

Review

"[Gerstmann] asks (and answers) the questions that everyone wants to know and many of us are afraid to tackle." Lambda Book Report

"...a well-organized, extremely articulate, and fearlessly logical analysis of the foundations of laws against same-sex marriage..." Perspectives on Political Science

"Evan Gerstmann has here presented a carefully crafted, highly nuanced, and imporant argument about same-sex marriage. His conclusion will be controversial, but in the best sense: people will be forced to reckon with his powerful argument." H.N. Hirsch, Macalester College

"This book does the best job I have seen in relating the constitutional law and theory of equal protection and the implied fundamental right of privacy to the politics of whether the Supreme Court should decide the important question of the right to same-sex marriage. This well-written, sensitive, and original book will be of invaluable use in undergraduate and law school classrooms. Evan Gerstmann demonstrates the tautological nature of arguments against gay marriage, while still being respectful to alternative arguments such as Sunstein's call for Supreme Court minimalism on this matter." Ronald Kahn, Oberlin College

"Gerstmann has developed a vitally important work in the ongoing legal debate over same-sex marriage. He presents an insightful framework for the Court's recognition of fundamental rights more generally--an area of constitutional interpretation that he terms a 'shambles' at present--and makes a strong argument that principle, rather than the potential of a backlash against an unpopular Court decision, should guide jurists. Highly recommended." Choice

"Reading Evan Gerstmann's book bolsters my hope that someday justice will come to same-sex couples." Kenneth Sherrill, Political Science Quarterly

"...Evan Gerstmann has now produced a forceful and tough-minded brief for the result that Scialia dreads. Careful, interesting. (and) worthwhile."... NEW REPUBLIC December 22, 2003

"In Same-Sex Marriage and the Constitution, Evan Gerstmann once again applies his considerable analytical scalpel to an issue of constitutional and moral importance. Showing due regard for competing normative and legal arguments, Gerstmann exposes the weaknesses in exisiting positions on both sides of the debate. He then presents an illuminating and convincing case on behalf of same-sex marriage rights based on a conception of equal protection that is applicable to all citizens, regardless of their sexual orientation. The book will enlighten not only those concerned with the issue of same-sex marriage, but also those interested in jurisprudence, constitutional law, and the relationship between constitutional law and citizenship. Gerstmann's innovative approach points us toward a more productive understanding of equal protection." Donald A. Downs, University of Wisconsin-Madison

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Product Details

• Paperback: 236 pages
• Publisher: Cambridge University Press (August 18, 2003)
• Language: English
• ISBN-10: 0521009529
• ISBN-13: 978-0521009522
• Product Dimensions: 8.8 x 5.6 x 0.6 inches
• Shipping Weight: 11.2 ounces
• Average Customer Review: 4.7 out of 5 stars  See all reviews (3 customer reviews)
• Amazon.com Sales Rank: #636,869 in Books (See Bestsellers in Books)

Customer Reviews

Most Helpful Customer Reviews

12 of 13 people found the following review helpful:

5.0 out of 5 stars Why same-sex marriage is Constitutional, April 11, 2005

By	John S. Ryan "Scott Ryan" (Silver Lake, OH) - See all my reviews (TOP 500 REVIEWER)    (REAL NAME)

Want to read a really good book setting out the case for the Constitutionality of same-sex marriage? This is it.

There are lots of books out there making the argument that recognition of same-sex marriage is a good idea. This is one of very few devoted solely to the case that the Constitution _requires_ such recognition. And it's very well-reasoned.

This book was being prepared for publication as _Lawrence v. Texas_ was decided, so you might think it would be outdated. But it isn't; that decision reinforces Gerstmann's analysis almost point by point.

I say 'almost' because _Lawrence_ was decided under the Due Process Clause, whereas Gerstmann thinks that fundamental rights are better regarded as founded in the Equal Protection Clause. (I disagree with him there, by the way, and I also wonder why he doesn't consider the Privileges and Immunities Clause. On the other hand, he gets extra credit for favorably considering the Ninth Amendment.)

But in the end it doesn't matter, because Gerstmann's argument is firmly grounded in the fact that the Supreme Court has long recognized the right to marry as a fundamental right. (Where that right is 'located' in the Constitution is a separate and subsidiary question.) This fundamental-right approach yields, on Gerstmann's view (and mine), a much more tenable analysis than the more common equal-protection approach. (And of course _Lawrence_ relied on a liberty-rights analysis in striking down state anti-'sodomy' laws -- which is why Gerstmann's analysis gets a fresh boost from that landmark decision.)

There are lots of other analytical treats throughout. For example, Gerstmann devotes the better part of a chapter to an argument that _Loving v. Virginia_ doesn't really provide a good analogy to same-sex marriage. He faces head-on the problems associated with judicial 'creation' of rights and offers a four-point pragmatic test for when it's okay. And he dismantles 'original intent'-based Constitutional interpretation by taking on the most capable and nuanced of its defenders.

(He also does a bang-up job setting out all the things that are _wrong_ with reliance on current Equal Protection jurisprudence. That won't surprise readers of Gerstmann's earlier book, _The Constitutional Underclass_, which I also highly recommend.)

But the best (and most important) part by far is the analysis of the right to marry as a fundamental right that encompasses same-sex marriage. This portion of Gerstmann's analysis should _gain_ in importance as post-_Lawrence_ courts address the Constitutionality of same-sex marriage bans. (And so should his argument that proponents of same-sex marriage should hold out for full-blown _marriage_ rather than, as William Eskridge has counselled, be at least temporarily satisfied with 'domestic partnerships' or 'civil unions'.)

My own opinion is that recognition of same-sex civil marriages is indeed required under the Constitution -- and since I held that opinion before reading Gerstmann's book, I may not be a good test of his persuasiveness. (I'm also a lawyer, so I can't tell you how 'readable' the book will be for non-lawyers.) But I find Gerstmann's argument cogent and, for the most part, right on the money.

7 of 8 people found the following review helpful:

5.0 out of 5 stars A legal book for everyone, February 8, 2005

By	Jesse Liberty "Silverlight Geek" (MA USA) - See all my reviews

This fascinating book is cogent, well argued and a straight-forward read. It is clearly targeted at lawyers, but is very accessible by the lay audience.

The author, a law professor, originally set out to prove that there is no Constitutional right to same-sex marriage, and became convinced, while doing his research, that he was wrong.

He argues strongly the Supreme Court has established a Fundamental Right To Marry and there is no reasonable legal defense against extending that right to same-sex couples.

3 of 4 people found the following review helpful:

4.0 out of 5 stars fundamental rights, July 2, 2005

By	A Reader (Philadelphia, PA United States) - See all my reviews

This is a well-done book, but one that will be a bit hard for those not at least somewhat familiar with constitutional law to follow. Gerstmann argues that marriage is a "fundamental right" under the constitution, and as such it is illegitimate to refuse to extend this right to same-sex couples. In making this argument he draws interesting analogies to the court's free speach jurisprudence. He tries to show how the more common "gender discrimination" argument doesn't work. I think this part is not 100% convincing, but it is a sophisticated approach. His discussion of the various "slippery slope" objections to gay marriage are also quite good. To my mind the biggest draw-back of this book is that it often makes quite teloscopic reference to other books (including Gerstmann's earlier book) in the place of detailed arguments. This book is not very long as it is, and it probably would have been better servered to give these arguments in more detail rather than just refering to other work as often as it does. This is especially the case for readers who do not have at least some constitutional law background.