Perry v. Schwarzenegger, in which a federal district court held California’s ban on same-sex marriages unconstitutional, is set for expedited review in the Ninth Circuit; many argue that the case will ultimately be decided by the Supreme Court. The arguments for and against the constitutionality of such statutes are thus at a fever pitch. In an article published earlier this year, Professors Nelson Tebbe and Deborah Widiss argued that marriage rights are best conceived of as an issue of equal access, rather than one of equal protection or substantive due process. Nelson Tebbe & Deborah A. Widiss, Equal Access and the Right to Marry, 158 U. Pa. L. Rev. 1375, 1377 (2010).
In The Argument for Same-Sex Marriage, Professors Tebbe and Widiss revisit the arguments they made in Equal Access and the Right to Marry and emphasize their belief that distinguishing between different-sex marriage and same-sex marriage is inappropriate. They lament the sustained emphasis on the equal-protection and substantive-due-process challenges in the Perry litigation and suggest that an equal-access approach is more likely to be successful on appeal.
In his rebuttal, Professor Shannon Gilreath questions some of the fundamental premises for same-sex marriage in Arguing Against Arguing for Marriage. He challenges proponents to truly reflect on “what there is to commend marriage to Gay people,” and points to his own reversal on the question as evidence. Though he stands fully in opposition to critics of same-sex marriage who use the stance to veil attacks on equality generally, Gilreath argues that marriage can be seen as a further institutionalization of gays and lesbians that risks “assimilationist erasure of Gay identity.” Gilreath concludes by noting that to the extent that marriage is assumed to be normatively good, the Tebbe-Widiss equal access approach to same-sex marriage recognition may be the most successful; still, he invites those on all sides of the debate to vigorously challenge that assumption.
Read the full argument at the University of Pennsylvania Law Review's PENNumbra website.
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