Document Type

Working Paper

Publication Date

2010

Center/Program

Center for Gender & Sexuality Law

Abstract

History and tradition have taken a prominent place as favored rationales for the exclusion of same-sex couples from marriage. Incrementalism likewise has been invoked to suggest that states can permissibly move “one step at a time” to redress the unequal status of same-sex couples, including by creating a civil union/marriage regime instead of providing marriage for all. Yet constitutional jurisprudence is clear that neither longevity nor tradition alone can justify the continuation of a discriminatory rule. This Article asks, then, what work these rationales perform in the marriage/civil union jurisprudence and debate, given their inadequacy from a doctrinal standpoint. The central claim here is that governments invoke history and tradition to suggest that private actors, rather than the state, are responsible for marriage having a higher social status than civil unions. Yet this premise ignores the state’s monopoly over marriage and, therefore, over marriage’s socially valuable connotations. Consequently, even if private actors contribute to marriage’s special social value, state control over access to that value falls well within standard understandings of state action. Context-sensitive skepticism is similarly necessary toward state claims that unequal treatment should be sustained so long as the inequality is characterized as an incremental step in the direction of full equality.

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