* Staff Writer, Boston College Third World Law Journal (2002–2003).
1 Gary Chartier, Natural Law, Same-Sex Marriage, and the Politics of Virtue, 48 UCLA L. Rev. 1593, 1599 (2001).
2 See Jack M. Battaglia, Religion, Sexual Orientation, and Self-Realization: First Amendment Principles and Anti-Discrimination Laws, 76 U. Det. Mercy L. Rev. 189, 204 (1999); Timothy E. Lin, Social Norms and Judicial Decisionmaking: Examining the Role of Narratives in Same-Sex Adoption Cases, 99 Colum. L. Rev. 739, 741 (1999).
3 William N. Eskridge, A History of Same-Sex Marriage, 79 Va. L. Rev. 1419, 1423 (1993).
4 Andrew Koppelman, The Gay Rights Question in Contemporary American Law 35 (2002).
5 See Edward Stein, Evaluating the Sex Discrimination Argument for Lesbian and Gay Rights, 49 UCLA L. Rev. 471, 483 (2001). Strict scrutiny is applied to legislation that affects race, which requires that the legislation be narrowly tailored to serve a compelling state interest. Koppelman, supra note 4, at 9–10. Minimal scrutiny is applied to most other legislation, which asks whether legislation is rationally related to a legitimate state interest. Id. at 10. Intermediate scrutiny requires legislation to be substantially related to a legitimate state interest. Id. The Supreme Court has not directly addressed whether homosexuals constitute a “discrete and insular minority” so as to trigger heightened or intermediate scrutiny. Stein, supra, at 482–83.
6 Koppelman, supra note 4, at 35, 53. The right to privacy is not an enumerated right, but can nonetheless trigger heightened review of legislation if it affects the right to marry or divorce, the right of married and unmarried persons to use contraceptives, the right of extended families to live together, or the right to abortion. Id. at 35 (citing Loving v. Virginia, 388 U.S. 1 (1967) (right to marry); Zablocki v. Redhail, 434 U.S. 374 (1978) (right to marry); Turner v. Safley, 482 U.S. 78 (1987) (right to marry); Boddie v. Connecticut, 401 U.S. 371 (1971) (right to divorce); Griswold v. Connecticut, 381 U.S. 479 (1975) (right to use contraceptives); Eisenstadt v. Baird, 405 U.S. 438 (1972) (right to use contraceptives); Carey v. Population Servs., 431 U.S. 678 (1977) (right to use contraceptives); Moore v. E. Cleveland, 431 U.S. 494 (1977) (right to live together); Roe v. Wade, 410 U.S. 113 (1973) (right to abortion)).
7 See id. at 73.
8 Id.
9 Id.
10 Koppelman, supra note 4, at 73.
11 See id.
12 See id. at 72–93.
13 Id. at 73, 93.
14 Id. at 72–93.
15 See Lynn D. Wardle, A Critical Analysis of Constitutional Claims for Same-Sex Marriage, 1996 B.Y.U. L. Rev. 1, 57 (stating that two-thirds of Americans oppose same-sex marriage).
16 See John G. Culhane, “Clanging Silence”: Same-Sex Couples and Tort Law, 89 Ky. L.J. 911, 938 (2000–01); Eskridge, supra note 3, at 1423 (suggesting that hostility to same-sex marriage stems not from logic, but rather from negative cultural attitudes); Michael Wald, Same-Sex Couple Marriage: A Family Perspective, 9 Va. J. Soc. Pol’y & L. 291, 292 (2001); see also Elvia Rosales Arriola, Sexual Identity and the Constitution: Homosexual Persons as a Discrete and Insular Minority, 14 Women’s Rts. L. Rep. 263, 285 (1992) (finding that discrimination against homosexuals is closely related to deeply held gender-specific social and sexual roles within a culture); Battaglia, supra note 2, at 203–04 (stating that religious beliefs are historically used to justify discrimination against homosexuals); Lin, supra note 2, at 758 (observing that fear, hatred, and stigmatization have defined attitudes toward gay and lesbian Americans, who have been derided as “faggots,” “monsters,” “fairies,” “bull dykes,” “perverts,” “freaks,” and “queers” and whose relationships have been labeled “abominations,” “crimes against nature,” and “sins not fit to be named among the Christians”); Nancy D. Polikoff, This Child Does Have Two Mothers: Redefining Parenthood to Meet the Needs of Children in Lesbian-Mother and Other Nontraditional Families, 78 Geo. L.J. 459, 549 (1990) (recognizing that many people think homosexuality immoral because of religious beliefs).
17 David B. Cruz, “Just Don’t Call it Marriage”: The First Amendment and Marriage as an Expressive Resource, 74 S. Cal. L. Rev. 925, 1008 (2001). Morality arguments were routine during the debates of the Federal Defense of Marriage Act, where congressional leaders decried same-sex marriage as “trendy moral relativism” and decried its advocates as “bent on forcing a tortured view of morality on the rest of the country.” Id. at 1008 (citing 142 Cong. Rec. S4947 (1996) (statement of Sen. Coats) and 142 Cong. Rec. H7482 (1996) (statement of Rep. Barr), respectively). Other representatives thought it improper for government to “treat homosexual relationships as morally equivalent to heterosexual relationships” and that doing so would “legitimize unnatural and immoral behavior.” Id. (citing 142 Cong. Rec. H7491 (1996) (statement of Rep. Canady); citing 142 Cong. Rec. H7494 (1996) (statement of Rep. Smith)).
18 See Koppelman, supra note 4, at 72; Carlos A. Ball, Sexual Ethics and Postmodernism in Gay Rights Philosophy, 80 N.C. L. Rev. 371, 373 (2002) [hereinafter Ball, Sexual Ethics]; Carlos A. Ball, Moral Foundations for a Discourse on Same-Sex Marriage: Looking Beyond Political Liberalism, 85 Geo. L.J. 1871, 1878 (1997) [hereinafter Ball, Moral Foundations]; Wald, supra note 16, at 339. After questioning the prejudice against gay and lesbians, Koppelman also posits that the central claim of gay liberation is based in morality. Koppelman, supra note 4, at 72. Thus, he realizes that he is put in the “awkward position” of having to prove that “there is no good reason to regard the sex of one’s partner as a morally significant factor in evaluating sexual conduct. Id. at 72–73.
19 See Jennifer Gerarda Brown, Competitive Federalism and the Legislative Incentives to Recognize Same-Sex Marriage, 68 S. Cal. L. Rev. 745, 749–51 (1995) (implying that questions surrounding the morality of same-sex marriage are distinct from, and fail to account for, economic concerns); Darren Bush, Moving to the Left by Moving to the Right: A Law & Economics Defense of Same-Sex Marriage, 22 Women’s Rts. L. Rep. 115, 116–17, 126 (2001) (criticizing law and economics theorists who justify non-intervention in heterosexual marriage on economic terms but who accept prohibitions on same-sex marriage because of the moral considerations); Tobin A. Sparling, All in the Family: Recognizing the Unifying Potential of Same-Sex Marriage, 10 Law & Sexuality 187, 197 (2001) (stating that judges and lawmakers have a duty to look beyond moral and religious principles when addressing same-sex marriage); Wald, supra note 16, at 339 (lamenting that failure to make assessments of objective data influences politicians and scholars alike to ignore evidence and oppose same-sex couple marriage).
20 Bush, supra note 19, at 116–17; Wald, supra note 16, at 339; Jeremy Waldron, Ego-Bloated Hovel, 94 Nw. U. L. Rev. 597, 611 (2000); see also Ball, Moral Foundations, supra note 18, at 1942 (arguing that societal acceptance of same-sex marriage is dependent upon “communal recognition” that such unions are “normatively good”).
21 See Bush, supra note 19, at 116.
22 See Robert Cooter & Thomas Ulen, Law & Econ. 1, 12–13 (1988).
23 Id. at 22–23.
24 Id. at 23.
25 See Richard Posner, An Economic Analysis of Law 3 (Little, Brown & Co. 2d ed. 1992).
26 Richard Posner, Rational Choice, Behavioral Economics, and the Law, 50 Stan. L. Rev. 1551, 1551 (1998).
27 Bush, supra note 19, at 115–16.
28 See Posner, supra note 25, at 15; see, e.g., Elaine A. Welle, Freedom of Contract and the Securities Laws: Opting Out of Securities Laws by Private Agreement, 56 Wash. & Lee L. Rev. 519, 539 (1999). Government regulation is typically disfavored, although some limited intervention is welcomed to enforce contracts, protect private property, and address imperfections in the marketplace. Id.
29 See Posner, supra note 25, at 335–36; see, e.g., Schwartz, What do I do for the Economists?, 50 Case W. Res. L. Rev. 347, 348 (1999) (identifying inefficiencies in areas such as the former antitrust regulations with respect to mergers, government price fixing in transportation, and restriction on competition among law firms).
30 Bush, supra note 19, at 116; see Posner, supra note 25, at 335–36.
31 Bush, supra note 19, at 116.
32 Id.
33 Id.
34 See id.; see, e.g., Richard Posner, Sex and Reason 313 (1992) (concluding that, even though the benefits of same-sex marriage may outweigh the costs, hostile public opinion is too prevalent to justify recognition of homosexual marriage).
35 See Bush, supra note 19, at 116–17.
36 See Koppelman, supra note 4, at 71; Ball, Moral Foundations, supra note 18, at 1878; Ball, Sexual Ethics, supra note 18, at 373; Sparling, supra note 19, at 197; Wald, supra note 16, at 339.
37 See Bush, supra note 19, at 116–17; Wald, supra note 16, at 339.
38 See Waldron, supra note 20, at 611; see also Ball, Moral Foundations, supra note 18, at 1942 (arguing that societal acceptance of same-sex marriage is dependent upon “communal recognition” that such unions are “normatively good”).
39 See Posner, supra note 34, at 311.
40 See Wald, supra note 16, at 305.
41 See id.
42 See F. H. Buckley & Larry E. Ribstein, Calling a Truce in the Marriage Wars, 2001 U. Ill. L. Rev. 561, 579; Wald, supra note 16, at 305, 307; see, e.g., Adam Chase, Tax Planning for Same-Sex Couples, 72 Denv. U. L. Rev. 359, 367 (1995) (observing that married couples have many state-inherited rights that activate upon dissolution of the relationship that same-sex couples do not have).
43 See Wald, supra note 16, at 308.
44 See id. at 305.
45 Lisa M. Farabee, Marriage, Equal Protection, and New Judicial Federalism: A View from the States, 14 Yale L. & Pol’y Rev. 237, 239 (1996).
46 Brown, supra note 19, at 785.
47 Id.
48 Id.
49 Id. at 785–86.
50 Id. at 785. Through contract, same-sex couples can approximate marriage, though at higher cost because fringe benefits and social insurance are often more generous for married than for single people. Posner, supra note 34, at 292.
51 Buckley &Ribstein, supra note 42, at 595.
52 Id. at 595–96.
53 Brown, supra note 19, at 786.
54 Id.
55 See Buckley & Ribstein, supra note 42, at 585; Cruz, supra note 17, at 1019; Wald, supra note 16, at 336.
56 See Raum v. Rest. Assocs., 675 N.Y.S.2d 343, 344 (App. Div. 1998) (denying unmarried partners the right to bring wrongful death actions); Rutgers Chapter of AAUP Chapters v. Rutgers, the State Univ., 689 A.2d 828, 829, 837 (N.J. Super. Ct. App. Div. 1997) (refusing to extend coverage of school employees to their same-sex domestic partners because they were not considered “spouses” or “dependents”).
57 See Gary Spitko, Judge Not: In Defense of Minority-Culture Arbitration, 77 Wash. U. L.Q. 1065, 1080 (1999); Wald, supra note 16, at 808.
58 Vasquez v. Hawthorne, 994 P.2d 240, 243 (Wash. Ct. App. 2000).
59 Vasquez v. Hawthorne, 145 Wash.2d 103, 104–05 (2001); see Marissa J. Holob, Note, Respecting Commitment: A Proposal to Prevent Legal Barriers from Obstructing the Effectuation of Intestate Goals, 85 Cornell L. Rev. 1492, 1495 (2000) (citation omitted).
60 See Holob, supra note 59, at 1495 (citation omitted).
61 E. Gary Spitko, The Expressive Function of Succession Law and the Merits of non-Marital Inclusion, 41 Ariz. L. Rev. 1063, 1066 (1999). The Uniform Probate Code grants all or most of the decedent’s intestate estate to a surviving spouse, or, if there is none, to the decedent’s descendants and then to members of his or her biological or adoptive family. Uniform Probate Code §§ 2–101 to –103 (1993).
62 See Unif. Probate Code §§ 2–101 to –103 (1993); Spitko, supra note 61, at 1066.
63 See Nancy J. Knauer, The September 11 Attacks and Surviving Same-Sex Partners: Defining Family Through Tragedy, 75 Temp. L. Rev. 31, 40 (2002).
64 See id.
65 See id. at 44. “The closet, homophobia, and the pressures of grief can greatly complicate the relationship between a surviving partner and the next of kin, who may seek to justify dispossessing the surviving partner on the grounds that the couple were not really a couple or that the absence of a will is a clear statement of the decedent’s intent to prefer family over a ‘roommate.’” Id.
66 See Spitko, supra note 61, at 1080.
67 See Brown, supra note 19, at 784–85.
68 See Merrianne E. Dean, Estate Planning for Non-Traditional Families, 309 Practising Law Institute (PLI)/Est. 1087, 1095 (2001) (observing that many gay and lesbian couples delay estate planning assistance because they are reluctant or afraid to disclose the nature of their relationships to a stranger); Knauer, supra note 63, at 37–38.
69 Wald, supra note 16, at 308. Although the associated substantive costs to both the child and couple are beyond the scope of this paper, several authors have highlighted the restriction’s negative impact. See id. at 310 (observing that the un-adopted child is not entitled to financial support, nor may the non-biological parent file for custody or visitation rights, nor sign medical consent forms, thereby impacting the emotional bond between the child and the couple).
70 Pamela Gatos, Note, Third-Parent Adoption in Lesbian and Gay Families, 26 Vt. L. Rev. 195, 205 (2001).
71 Wald, supra note 16, at 308.
72 Gatos, supra note 70, at 206.
73 Wald, supra note 16, at 309.
74 Id.
75 See Gatos, supra note 70, at 205; see, e.g., In re Adoption of Tammy, 619 N.E.2d 315, 321–22 (Mass. 1993) (Nolan, J., dissenting) (refusing to agree that the couple’s sexual orientation should not determine the outcome of the case).
76 Wald, supra note 16, at 309 (citation omitted). See, e.g., In re Adoption of Tammy, 619 N.E.2d at 317 (noting that over a dozen witnesses testified as to the suitability of the same-sex couple as parents, including mental health professionals, teachers, colleagues, neighbors, blood relatives, and a priest and nun; the Department of Social Services conducted a thorough home study; and a court-appointed guardian ad litem conducted a thorough clinical assessment of the couple and the child).
77 Wald, supra note 16, at 309. Florida has prohibited lesbian and gay second-parent adoptions through legislation. See Fla. Stat. Ann. § 63.042(3) (West 1997). Wisconsin has prohibited it through strict interpretation of statutory language found in sections 48.81–.82. See In The Interest of Angel Lace M., 516 N.W.2d 678, 686 (Wis. 1994) (reasoning that second-parent adoption would cause the biological parent to terminate parental rights). States that do not provide for second-parent adoptions in their adoption statutes include: Arizona, Ariz. Rev. Stat. Ann. § 8–103 (West 1999), Arkansas, Ark. Code. Ann. § 9–9–204 (Michie 2002), Idaho, Idaho Code § 16–1501 (Michie 2001), Kansas, Kan. Stat. Ann. § 59–2113 (1994), Kentucky, Ky. Rev. Stat. Ann. § 199.470 (Michie 1998), Louisiana, La. Children’s Code Ann. arts. 1198, 1202 (West 1995), Maine, Me. Rev. Stat. Ann. tit. 18-A § 9–103 (West 1964), Mississippi, Miss. Code Ann. § 93–17–3 (1972), Missouri, Mo. Ann. Stat. § 453.010 (West 1997), Montana, Mont. Code Ann. § 42–1–106 (2001), North Carolina, N.C. Gen. Stat. § 48–2–301 (2001), South Carolina, S.C. Code Ann. § 20–7–1670 (Law. Co-op. 1976), South Dakota, S.D. Codified Laws § 25–6–2 (Michie 1999), Tennessee, Tenn. Code Ann. § 36–1–115 (2001), Utah, Utah Code Ann. § 78–30–1 (1953), Virginia, Va. Code Ann. § 63.1–219.9 (Michie 2001), West Virginia, W. Va. Code Ann. § 48–22–201 (Michie 2001), and Wyoming, Wyo. Stat. Ann. § 1–22–103 (Michie 2001).
78 Wald, supra note 16, at 309.
79 See Polikoff, supra note 16, at 526.
80 Id. at 526–27.
81 See id. at 309; see, e.g., T.B. v. L.R.M., 786 A.2d 913, 914 (Penn. 2001) (dispute regarding the rights of a former lesbian partner who did not legally adopt the child she and her partner agreed to raise from birth); V.C. v. M.J.B., 748 A.2d 539, 541–42 (N.J. 2000).
82 Spitko, supra note 57, at 1080.
83 Id.
84 See Buckley & Ribstein, supra note 42, at 595.
85 See Nancy J. Knauer, Domestic Partnership and Same-Sex Relationships: A Marketplace Innovation and a Less Than Perfect Institutional Choice, 7 Temp. Pol. & Civ. Rts. L. Rev. 337, 360 (1998).
86 Kris Franklin, Note, “A Family Like Any Other Family”: Alternative Methods of Defining Family Law, 18 N.Y.U. Rev. L. & Soc. Change 1027, 1071 (1990–91).
87 Id.
88 Brown, supra note 19, at 786.
89 Id.
90 Kathleen Guzman, About Outing: Public Discourse, Private Lives, 73 Wash. U. L.Q. 1531, 1542 (1995).
91 Id. at 1542–43 (citations omitted).
92 Id. (citations omitted).
93 Chase, supra note 42, at 366.
94 Id. at 366–67.
95 Guzman, supra note 90, at 1543.
96 Nancy K. Kubasek et al., Fashioning a Tolerable Domestic Partners Statute is an Environment Hostile to Same-Sex Marriages, 7 Law & Sexuality 55, 82 (1997).
97 James P. Baker, Equal Benefits at Work? The Law of Domestic Partner Benefits, 14 Lab. Law. 23, 25 (1998).
98 See Dominick Vetri, Almost Everything You Always Wanted to Know About Lesbians and Gay Men, Their Families, and the Law, 26 S.U. L. Rev. 1, 68 (1998).
99 Jean Reith Schroedel & Pamela Fiber, Lesbian and Gay Policy Priorities: Commonality and Difference, in The Politics of Gay Rights 113, 115 (Craig A. Rimmerman et al. eds., 2000).
100 See Sue Nussbaum Averill, Note, Desperately Seeking Status: Same-Sex Couples Battle for Employment-Linked Benefits, 27 Akron L. Rev. 253, 256 (1993); see, e.g., Tanner v. Oregon Health Servs. Univ., 971 P.2d 435, 505–06 (Or. Ct. App. 1998) (holding that employer’s denial of insurance benefits to domestic partners of homosexual employees violated the state constitution but did not violate a state sex discrimination statute); Rutgers Council of AAUP Chapters v. Rutgers, the State Univ., 689 A.2d 828, 831 (N.J. Super. App. Div. 1997) (holding that denial of health care insurance coverage to same-sex partners was justified because such partners are not considered to be spouses).
101 See Kate Latimer, Domestic Partners and Discrimination: The Need for Fair Employment Compensation, 12 Hamline J. Pub. L. & Pol’y 329, 339 (1991); see, e.g., Tanner, 971 P.2d at 505–06; Rutgers, 689 A.2d at 831.
102 See Wald, supra note 16, at 306.
103 Id.
104 Id.
105 Posner, supra note 34, at 313.
106 See id. at 313 (questioning whether a homosexual might marry a succession of AIDS patients in order to entitle them to spouse’s medical benefits); Lindsay Brooke King, Enforcing Conventional Morality Through Taxation?: Determining the Excludability of Employer-Provided Domestic Partner Health Benefits Under Sections 105(b) and 106 of the Internal Revenue Code, 53 Wash. & Lee L. Rev. 301, 313–14 (1996).
107 Bush, supra note 19, at 129.
108 See id.
109 Id.
110 Id.
111 See King, supra note 106, at 314.
112 See id. at 315; see also Raymond C. O’Brien, Domestic Partnership: Recognition and Responsibility, 32 San Diego L. Rev. 163, 179 (1995).
113 See O’Brien, supra note 112, at 179. At least two health insurance companies have extended health benefits to same-sex domestic partners: Blue Cross and Blue Shield of Massachusetts and Kaiser Permanente of Northern California. Id.
114 See Kubasek et al., supra note 96, at 82; Jarrett Tomas Barrios, Note, Growing Pains in the Workplace: Tax Consequences of Health Plans for Domestic Partners, 47 Tax Law. 845, 847 (1994). For example, the increased cost of providing health insurance to the domestic partners of city employees in Seattle, Washington increased the city’s total costs for medical and dental coverage only 1.1% between May through December, 1990. Kubasek et al., supra, note 96, at 82. In Berkeley, California, the extension of dental benefits raised its premiums by only 2%. Id.
115 King, supra note 106, at 315–16 (citations omitted).
116 See id. at 316; Richard Posner, Should There Be Homosexual Marriage? And if so, Who Should Decide?, 95 Mich. L. Rev. 1578, 1581 (1997) (realizing that, because there are substantially more heterosexuals than homosexuals, and because a much smaller fraction of homosexuals than of heterosexuals will marry, the costs of same-sex marriage to society, on a per capita basis, would be small). Other commentators have noted that same-sex marriages will never amount to more than a very small proportion of American marriages because there are fewer homosexuals than heterosexuals. Wald, supra note 16, at 333. One of the most comprehensive national studies on sexual behavior found that approximately 2.8% of men and 1.4% of women identify themselves as homosexual. Carlos A. Ball & Janice Farrell Pea, Warring with Wardle: Morality, Social Science, and Gay and Lesbian Parents, 1998 U. Ill. L. Rev. 253, 284 (1998) (citing Edward O. Laumann et al., The Social Organization of Sexuality: Sexual Practices in the United States 297 (1994)).
117 See Greg Johnson, Vermont Civil Unions: The New Language of Marriage, 25 Vt. L. Rev. 15, 19 (2000).
118 See Cruz, supra note 17, at 1019; Michael Mello, For Today I’m Gay: The Unfinished Battle for Same-Sex Marriage in Vermont, 25 Vt. L. Rev. 149, 251 (2000); Wald, supra note 16, at 338.
119 Ball, Moral Foundations, supra note 18, at 1939–40.
120 Wald, supra note 16, at 302.
121 See Vetri, supra note 98, at 45.
122 Ball, Moral Foundations, supra note 18, at 1940.
123 Chartier, supra note 1, at 1620.
124 Id. at 1621.
125 Id.
126 Id.
127 Id.
128 Chartier, supra note 1, at 1622.
129 See Cruz, supra note 17, at 1019.
130 Wald, supra note 16, at 338.
131 Id.
132 Chartier, supra note 1, at 1622.
133 Posner, supra note 34, at 312.
134 See id.
135 See id.
136 Id. at 311. Posner points out that recognition of same-sex marriage would raise the self-esteem of lesbians and gay men. Id.
137 Vetri, supra note 98, at 47.
138 See id.
139 See Wald, supra note 16, at 338.
140 Chartier, supra note 1, at 1621.
141 Id. at 1622.
142 See id.; Wald, supra note 16, at 339.
143 Koppelman, supra note 4, at 35, 53, 72, 94.
144 See id. at 73.
145 Id. at 35, 53, 72, 94.
146 See id. at 72–93.
147 See Barbara J. Cox, But Why Not Marriage: An Essay on Vermont’s Civil Union Law, Same-Sex Marriage, and Separate But (Un)equal, 25 Vt. L. Rev. 113, 135 (2000).
148 See Koppelman, supra note 4, at 145.
149 Id.
150 See Posner, supra note 34, at 308 (arguing that even if a gay man is likely to be less happy than a heterosexual man, this is, in itself, a reason to remove obstacles such as marriage prohibition “in order to alleviate gratuitous suffering”).
151 Koppelman, supra note 4, at 145.
152 Id. at 141; see Baker v. State, 744 A.2d 864, 887 (Vt. 1999).
153 See Battaglia, supra note 2, at 206–07; Lin, supra note 2, at 741–42; Wald, supra note 16, at 339.
154 See Battaglia, supra note 2, at 206–07; Lin, supra note 2, at 741–42; Wald, supra note 16, at 339.
155 See Koppelman, supra note 4, at 145.
156 Koppelman, supra note 4, at 141, 144. Koppelman supports this assertion with Posner’s comment that public opinion may change, but at present, it is too firmly against same-sex marriage for the courts to act. Id. at 144–45. Posner’s suggestion is to “[allow] the matter to simmer for a while before the heavy artillery of constitutional rightsmaking is trundled out.” Id. at 145; see, e.g., Romer v. Evans, 517 U.S. 620, 632 (1996) (striking down Colorado’s Amendment 2, which prohibited government-backed preferential treatment of homosexuals, because it was motivated by animus); Baker v. State, 744 A.2d 864, 911 (Vt. 1999) (holding that same-sex couples are entitled, under the state constitution, to the same legal benefits as heterosexual married couples); Baehr v. Lewin, 852 P.2d 44, 67 (Haw. 1993) (holding that denial of same-sex marriage is gender discrimination); Brause v. Bureau of Vital Statistics, No. 3AN-95–6562CI, 1998 WL 88743, at *6 (Alaska Feb. 27, 1998) (holding that denial of marriage license to same-sex couples violates state constitution).
157 See Baehr, 852 P.2d at 67. After Hawaii’s Supreme Court ruled that the state constitution required recognition of same-sex marriage, voters overruled the decision by passing a constitutional amendment. See id.; Koppelman, supra note 4, at 142. A similar amendment passed in Alaska after a district court ordered recognition of a same-sex marriage. See Brause, 1998 WL 88743, at *6; Koppelman, supra note 4, at 142; Buckley & Ribstein, supra note 42, at 580.
158 Buckley & Ribstein, supra note 42, at 580.
159 Edmund Burke, Reflections on the Revolution of France 31 (Oxford 1993) (1790), quoted in Buckley & Ribstein, supra note 42, at 580.
160 Buckley & Ribstein, supra note 42, at 581; see also Mark Tanney, The Defense of Marriage Act: A “Bare Desire to Harm” an Unpopular Minority Cannot Constitute a Legitimate Government Interest, 19 T. Jefferson L. Rev. 99, 119 (1997) (stating that defending marriage as strictly heterosexual “because ‘it has always been that way’ is simply wrong”); Desiree Alonso, Note, Immigration Sponsorship Rights for Gay and Lesbian Couples: Defining Partnerships, 8 Cardozo Women’s L.J. 207, 230 (2002) (observing that change related to sexual identity is particularly threatening, which makes “tradition” a natural and easy argument for conservatives to make).
161 Buckley & Ribstein, supra note 42, at 581.
162 Vetri, supra note 98, at 45.
163 Id.
164 See Posner, supra note 34, at 308.
165 See Wald, supra note 16, at 339.
166 See Bush, supra note 19, at 137; Wald, supra note 16, at 338.
167 See Wald, supra note 16, at 344.