Skip to main content
It looks like you're using Internet Explorer 11 or older. This website works best with modern browsers such as the latest versions of Chrome, Firefox, Safari, and Edge. If you continue with this browser, you may see unexpected results.

Same-Sex Marriage Research Guide: Home

A Selective Bibliography of the Legal Literature compiled by Paul Axel-Lute originally published September 2002 last updated March 7, 2017/ DC

Introduction

Same-Sex Marriage: A Selective Bibliography of the Legal Literature

compiled by Paul Axel-Lute

originally published September 2002

last updated March 7, 2017/ DC

The movement to open civil marriage to same-sex couples achieved its first temporary success in 1993 with the decision of the Hawaii Supreme Court that the restriction of marriage to opposite-sex couples would be presumed unconstitutional unless the state could demonstrate that it furthered a compelling state interest. In response to this decision the state constitution was amended to allow the legislature to preserve that restriction. A similar court decision in Alaska in 1998 led to an even stronger constitutional amendment, itself defining marriage as between one man and one woman. In further reaction to the Hawaii case, the federal Defense of Marriage Act (1996) provided that no state would be required to recognize a same-sex marriage from another state, and also defined marriage for federal-law purposes as opposite-sex. The majority of the states also passed their own "marriage protection acts." (In November 2004, eleven more U.S. states amended their constitutions to prohibit same-sex marriage.)

In Vermont, after that state's Supreme Court held in 1999 that the state must extend to same- sex couples the same benefits that married couples receive, the legislature in 2000 created the status of "civil union" to fulfill that mandate. Connecticut adopted a similar civil union law in 2005.

In 2001, the Netherlands became the first country to open civil marriage to same-sex couples. Belgium became the second in 2003. In 2002 through 2004, courts in six Canadian provinces held that the opposite-sex definition of marriage was contrary to Canada's Charter of Rights, and in 2005 federal legislation extended same-sex marriage to all of Canada. Same-sex marriage was also legalized in Spain in 2005 , in South Africa in 2006, in Norway and Sweden effective in 2009, in Portugal, Iceland, and Argentina effective in 2010, and in Colombia, Brazil, France, New Zealand, and the United Kingdom effective in 2013.

In November 2003, the Massachusetts Supreme Judicial Court held that excluding same-sex couples from the benefits of civil marriage violated the state constitution, and in February 2004 that court further held that a "civil union" law would not be sufficient, and on May 17, 2004 Massachusetts became the first state in the United States where same-sex marriage per se is legal.

In July 2006, opposite-sex definitions of marriage were upheld by the highest courts of both New York and Washington; likewise in Maryland in 2007.

In October 2006, the New Jersey Supreme Court held that same-sex couples were entitled to the same rights and benefits enjoyed by opposite-sex couples under the civil marriage statutes. The Legislature complied with that decision by enacting a civil union act in December 2006.

In May 2008, California became the second state to legalize same-sex marriage when the California Supreme Court held that laws restricting marriage to opposite-sex couples were unconstitutional. Connecticut followed suit in October 2008. In California, the Supreme Court decision was overturned by voter initiative in the November 2008 election, but that initiative was held unconstitutional by the U.S. Court of Appeals for the Ninth Circuit in February 2012.

In 2009, same-sex marriage was legalized in Iowa by decision of its Supreme Court, in Vermont, New Hampshire, and the District of Columbia by legislation, and in Connecticut by both. New York's Marriage Equality Act was enacted in June 2011. The states of Maryland and Washington legalized same-sex marriage by statute in 2012; Delaware, Hawaii, Illinois, Minnesota, and Rhode Island did likewise in 2013.

In June 2013, the Supreme Court of the United States invalidated the federal Defense of Marriage Act as an unconstitutional infringement on personal liberty. Later that year, allowance of same-sex marriage was required by state court decision in New Jersey and by federal district court decision in Utah (but the Utah decision was stayed pending appeal in January 2014).

The journal articles included in this bibliography are from 1997 through 2013. Arrangement is alphabetic, by author's last name, except that symposium issues are listed by symposium title only, without listing the individual articles. Articles by student authors are excluded. Books and articles about particular jurisdictions are listed under those jurisdictions rather than in the general books and articles sections. The arrangement of entries under each jurisdiction is chronological, with undated items given first alphabetically. Federal court cases are listed under the states in which they arose--except for cases concerning the federal Defense of Marriage Act.

ALR Annotations

  • Annotation: "Marriage Between Persons of Same Sex," 81 ALR 5th 1-40 (2000) (by Robin Cheryl Miller). This annotation, updated by an annual pocket supplement,provides citations and lengthy summaries of caselaw from the United States concerning the validity of same-sex marriages.
  • Annotation: "Marriage Between Persons of the Same Sex--United States and Canadian Cases," 1 ALR Fed 2d 1 (2005) (by Robin Cheryl Miller and Jason Binimow) 

Books

  • Babst, Gordon Albert, Liberal Constitutionalism, Marriage, and Sexual Orientation: A Contemporary Case for Dis-establishment (Peter Lang, 2002) (Teaching Texts in Law and Politics, v. 15) [call no. KF 539.B33 ]
  • Badgett, M. V. Lee, When Gay People Get Married: What Happens When Societies Legalize Same-Sex Marriage (New York University Press, 2009)
  • Cahill, Sean, Same-Sex Marriage in the United States: Focus on the Facts (Rowman & Littlefield, 2004)
  • Cantor, Donald J., et al., Same-Sex Marriage: The Legal and Psychological Evolution in America (Wesleyan University Press, 2006)
  • Chauncey, George, Why Marriage? The History Shaping Today's Debate Over Gay Equality(Basic Books, 2004)
  • Cretney, Stephen Michæl, Same-Sex Relationships: From 'Odious Crime' to 'Gay Marriage'(Oxford University Press, 2006) (Clarendon Law Lectures)
  • Defense of Marriage: Does It Need Defending?, edited by James Perkins (Nova Science, 2004)
  • Depuis, Martin, Same-Sex Marriage, Legal Mobilization, and the Politics of Rights (Peter Lang, 2002) (Teaching Texts in Law and Politics, v. 17)
  • Eskridge, William N., Jr., The Case for Same-Sex Marriage: from Sexual Liberty to Civilized Commitment (Free Press, 1996). [call no. HQ 76.3,U5E85 ]
  • Eskridge, William N., Gay Marriage: For Better or For Worse? What We've Learned from the Evidence. (Oxford Univ. Press, 2006)
  • Gerstmann, Evan, Same-Sex Marriage and the Constitution (Cambridge Univ. Press, 2004, and second editon 2008) [ call no. KF 539.G47 ]
  • Gill, Emily R., An Argument for Same-Sex Marriage: Religious Freedom, Sexual Freedom, and Public Expressions of Civic Equality (Georgetown University Press, 2012) [ call no. HQ1034.U5 G55 2012 ]
  • Goldberg-Hiller, Jonathan, The Limits to Union: Same-Sex Marriage and the Politics of Civil Rights (Univ. of Michigan Press, 2002) [ call no. HQ 1034.U5 G65 ]
  • Gozemba, Patricia A., History of America's First Legal Same-Sex Marriages (Beacon Press, 2007) [ call no. HQ 1034.U5G69 ]
  • Hume, Robert J., Courthouse Democracy and Minority Rights : Same-Sex Marriage in the States ( Oxford University Press, 2013) [ call no. KF539 .H86 2013 ]
  • Klarman, Michæl J., From the Closet to the Altar : Courts, Backlash, and the Struggle for Same-Sex Marriage. (Oxford University Press, 2013) [ call no. KF539 .K58 2013 ]
  • Koppelman, Andrew, Same Sex, Different States: When Same-Sex Marriages Cross State Lines (Yale University Press, 2006)
  • Legal Recognition of Same-Sex Partnerships [Conference] (1999 : London). The Legal Recognition of Same-Sex Partnerships : a Study of National, European and International law / edited by Robert Wintemute and Mads Andenæs ( Hart Pub., 2001) [ call no. K699 .A6 1999 ]
  • Lee, Man Yee Karen, Equality, Dignity, and Same-Sex Marriage : a Rights Disagreement in Democratic Societies (Martinus Nijhoff Publishers, 2010)
  • Marriage and Same-Sex Unions: a Debate / edited by Lynn D. Wardle et al. (Præger, 2003). [ call no. HQ 1034.U5 M37 ]
  • Mello, Michæl, Legalizing Gay Marriage (Temple University Press, 2004) [ call no. HQ1034.U5 M45 2004 ]
  • Merin, Yuval, Equality for Same-Sex Couples : the Legal Recognition of Gay Partnerships in Europe and the United States ( University of Chicago Press, 2002) [ call no. K699 .M37 2002 ] Includes extensive bibliography, and English translations of Scandinavian registered partnerships laws and of Netherlands law opening civil marriage to same sex couples.
  • Moral Argument, Religion, and Same-Sex Marriage: Advancing the Public Good, edited by Gordon A. Babst, Emily R. Gill, & Jason Pierceson Lexington Books, 2009) [ call no. KF 539.M67 2009 ]
  • Nicolas, Peter, & Mike Strong, The Geography of Love: Same-Sex Marriage & Relationship Recognition in America (The Story in Maps, 2011)
  • Pierceson, Jason, Courts, Liberalism and Rights: Gay Law and Politics in the United States and Canada (Temple University Press, 2005) [ call no. KF4754.5 .P54 2005 ] Includes chapters on same-sex marriage.
  • Pierceson, Jason, Same-Sex Marriage in the United States : The Road to the Supreme Court (Rowman & Littlefield Publishers, 2013) [ call no. HQ1034.U5 P54 2013 ]
  • Pinello, Daniel R., America's Struggle for Same-Sex Marriage (Cambridge University Press, 2006).
  • Richman, Kimberly D., License to Wed: What Legal Marriage Means to Same-Sex Couples(NYU Press, 2013)
  • Rosenberg, Gerald N., The Hollow Hope : Can Courts Bring About Social Change? 2nd edition (University of Chicago Press, 2008). [call no. KF8700.R66] Includes chapters on litigation for same-sex marriage.
  • Rosenfeld, Michæl J., The Age of Independence: Interracial Unions, Same-Sex Unions, and the Changing American Family (Harvard University Press, March 2007).
  • Same-Sex Marriage in Latin America : Promise and Resistance / edited by Jason Pierceson, Adriana Piatti-Crocker, and Shawn Schulenberg (Lexington Books, 2013) [call no. KG147 .S26 2013 ]
  • Same-Sex Marriage : Pro and Con : A Reader / [edited by] Andrew Sullivan with research assistance by Joseph Landau (Vintage Books, 1997) [call no. HQ76.25 .F677 1997 ]
  • Same-Sex Marriage : The Moral and Legal Debate / edited by Robert M. Baird and Stuart E. Rosenbaum (Prometheus Books, 1997) [ call no. HQ76.3.U5 S33 1997 ]
  • Snyder, R. Claire, Gay Marriage and Democracy: Equality for All (Rowman & Littlefield, 2006)
  • Strasser, Mark, The Challenge of Same-Sex Marriage : Federalist Principles and Constitutional Protections (Præger, 1999) [ call no. KF539 .S768 1999 ]
  • Strasser, Mark, Legally Wed : Same-Sex Marriage and the Constitution (Cornell University Press, 1997) [call no. KF539 .S77 1997 ]
  • Strasser, Mark, On Same-Sex Marriage, Civil Unions, and the Rule of Law: Constitutional Interpretation at the Crossroads (Præger, Oct. 2002) [ call no. KF539 .S769 2002 ]
  • Sullivan, Andrew, Virtually Normal: an Argument about Homosexuality (Knopf, 1995) [ call no. HQ 76.25.S85 ]. At pages 178-185, discusses equal access to civil marriage as centerpiece of a politics of homosexuality.
  • What's the Harm? Does Legalizing Same-Sex Marriage Really Harm Individuals , Families or Society? / edited by Lynn D. Wardle (University Press of America, 2008)
  • Wolfson, Evan, Why Marriage Matters: America, Equality, and Gay People's Right To Marry(Simon & Schuster, 2004) [ call no. HQ1034.U5 W65 2004 ]
  • Zylan, Yvonne, States of Passion: Law, Identity, and the Social Construction of Desire (Oxford University Press, 2011), Chapter 6, "Aspiring to Be Iowan: Same Marriage and the End of Gayness As We Know It," p.202-267. [ call no. KF 9325.Z85 ]

Articles Opposing Same-Sex Marriage

  • Beckwith, Francis J., "Justificatory Liberalism and Same-Sex Marriage," Ratio Juris, 26:487-509 (2013)
  • Bradley, Gerard V., "Same-Sex Marriage: Our Final Answer?" Notre Dame Journal of Law, Ethics & Public Policy, 14:729-752 (2000)
  • Coolidge, David Orgon; & Duncan, William C., "Reaffirming Marriage: A Presidential Priority," Harvard Journal of Law & Public Policy, 24:623-651 (Spring 2001)
  • Coolidge, David Orgon, "Same-Sex Marriage? Bæhr v. Miike and the Meaning of Marriage," South Texas Law Review, 38:1-119 (March 1997).
  • Dent, George W. Jr., "The Defense of Traditional Marriage," The Journal of Law and Politics,15:581-644 (Fall 1999)
  • Duncan, William C. "Avoidance Strategy: Same-Sex Marriage Litigation and the Federal Courts," Campbell Law Review, 29:29-46 (2006).
  • Duncan, William C., "Whither Marriage in the Law?" Regent University Law Review, 15:119-128 (2003)
  • Finnis, John, "The Good of Marriage and the Morality of Sexual Relations: Some Philosophical and Historical Observations," American Journal of Jurisprudence, 42:97-134 (1997)
  • Gallagher, Maggie, "What Is Marriage For? The Public Purposes of Marriage Law," Louisiana Law Review, 62:773-791 (2002)
  • Girgis, Sherif, Robert P. George and Ryan T. Anderson, "What is Marriage?" Harvard Journal of Law & Public Policy, 34:245-287 (2011)
  • Graglia, Lino A., "Single-Sex 'Marriage': the Role of the Courts," Brigham Young Univ. Law Review, 2001:1013-1021
  • Lee, Patrick; & George, Robert P., "What Sex Can Be: Self- Alienation, Illusion, or One-Flesh Union," American Journal of Jurisprudence, 42:135-157 (1997)
  • MacLeod, Adam J., "The Search for Moral Neutrality in Same-Sex Marriage Decisions," BYU Journal of Public Law, 23:1-59 (2008).
  • O'Brien, Matthew B, "Why Liberal Neutrality Prohibits Same-Sex Marriage: Rawls, Political Liberalism, and the Family," forthcoming in The British Journal of American Legal Studies, Vol. 1, Issue 2 (Summer/Fall 2012). Available at http://ssrn.com/abstract=2136540 (May 1, 2012)
  • Reid, Eric, "Assessing and Responding to Same-Sex "Marriage" in Light of Natural Law," Georgetown Journal of Law & Public Policy, 3:523-539 (2005)
  • Schowengerdt, Dale M., "Defending Marriage: A Litigation Strategy to Oppose Same-Sex 'Marriage'," Regent University Law Review, 14:487-510(2002)
  • Spaht, Katherine Shaw, "Revolution and Counter-Revolution: the Future of Marriage in the Law," Loyola Law Review, 49:1-78 (2003) (disccusses same-sex marriage at pages 19-28, 46-48)
  • Stewart, Monte Neil, "Genderless Marriage, Institutional Realities, and Judicial Elision," Duke Journal of Constititutional Law & Public Policy, 1:3-78 (2006)
  • Stewart, Monte Neil, "Judicial Redefinition of Marriage," Canadian Journal of Family Law, 21:11-132 (2004), available at http://www.manwomanmarriage.org/jrm/pdf/jrm.pdf
  • Stewart, Monte Neil and William C. Duncan, "Marriage and the Betrayal of Perez and Loving," BYU Law Review, 2005:555-595, available at http://digitalcommons.law.byu.edu/cgi/viewcontent.cgi?article=2236&context=lawreview
  • Stewart, Monte Neil, "Marriage Facts." Harvard Journal of Law & Public Policy, 31:313-369 (2008).
  • Stewart, Monte Neil, Jacob D. Briggs, & Julie Slater, "Marriage, Fundamental Premises, and the California, Connecticut, and Iowa Supreme Courts," Brigham Young University Law Review, 2012:193-280; available at http://digitalcommons.law.byu.edu/cgi/viewcontent.cgi?article=2639&context=lawreview
  • "Symposium: Law and the Politics of Marriage: Loving v. Virginia After Thirty Years," B.Y.U. Journal of Public Law, 12:201-332 (1998) (five articles)
  • "Symposium: Law and the Politics of Marriage: Loving v. Virginia After Thirty Years," Catholic University Law Review, 47:1207-1325 (Summer 1998) (four articles)
  • "Symposium: Moral Realism and the Renaissance of Traditional Marriage," Regent University Law Review, 17:185-310 (2004-2005) (seven articles)
  • [Symposium: Traditional Marriage,] North Dakota Law Review, 83:1199-1411 (2007) (six articles).
  • United States Senate, Republican Policy Committee, "The Threat to Marriage from the Courts," http://rpc.senate.gov/releases/2003/jd072903.pdf (July 29, 2003)
  • Wardle, Lynn D. &Lincoln C. Oliphant, "In Praise of Loving: Reflections on the 'Loving Analogy' for Same-Sex Marriage," Howard Law Journal, 51:117-186 (2007)
  • Wardle, Lynn D. "The Judicial Imposition of Same-Sex Marriage: The Boundaries of Judicial Legitimacy and Legitimate Redefinition of Marriage," Washburn Law Journal, 50:79-107 (2010)
  • Wardle, Lynn D., "Legal Claims for Same-Sex Marriage: Efforts to Legitimate a Retreat from Marriage by Redefining Marriage," South Texas Law Review, 39:735-768 (June 1998)
  • Wardle, Lynn D. , "'Multiply and Replenish': Considering Same-Sex Marriage in Light of State Interests in Marital Procreation," Harvard Journal of Law & Public Policy, 24:771-814 (Summer2001)
  • Wardle, Lynn D., "What is Marriage?" Whittier Journal of Child & Family Advocacy, 6:53-103 (2006).
  • Wardle, Lynn D. , "A Response to the Conservative Case for Same-Sex Marriage: Same-Sex Marriage and the Tragedy of the Commons," BYU Journal of Public Law, 22:441-474 (2008)
  • Wilkins, Richard G., "The Constitutionality of Legal Preferences for Heterosexual Marriage", Regent University Law Review, 16:121-137 (2003-2004).

Symposia with Mixed Views

  • "Conference on the Constitutional and Legal Issues Presented by Same-Sex Relationships," Loyola Univ. of Chicago Law Journal, 38:215-397 (2007) (seven articles)
  • "Conference on Marriage, Families, and Democracy," Hofstra Law Review 32:23-421 (2003) (thirteen articles)
  • "Editors' Symposium: The Meaning of Marriage," San Diego Law Review, 42:821-1149 (2005) (twenty-two articles) (including pro and con on the Federal Marriage Amendment)
  • "Same-Sex Marriage Symposium," George Mason University Civil Rights Law Journal, 16:329-358 (2006). Transcript of a debate between two Virginia State Delegates.
  • "Same-Sex Marriage Symposium Issue," BYU Journal of Public Law, 18:273-693 (2004) (eleven articles)
  • "Single-Sex Marriage" (Symposium), Issues in Legal Scholarship, Issue 5 (inaugurated August 2004), http://www.bepress.com/ils/iss5/ (four articles)
  • "Symposium: Breaking with Tradition: New Frontiers for Same-Sex Marriage," Yale Journal of Law & Feminism, 17:65-308 (2005) (eight articles)
  • >Symposium: "Can Anyone Show Just Cause Why These Two Should Not Be Lawfully Joined Together?" New England Law Review, 38:487-688 (2003-04) (fifteen articles)
  • Symposium: "Constructing Family, Constructing Change: Shifting Legal Perspective on Same- Sex Relationship," Temple Political and Civil Rights Law Review, 7:245-506 (Spring 1998) (fourteen articles)
  • "Symposium: Gay Marriage in the Conservative Movement," South Texas Law Review, 50:1-127 (2008) (eight articles)
  • Symposium: "Same-Sex Couples: Defining Marriage in the Twenty-First Century," Stanford Law & Policy Review 16:1-232 (2005) (eight articles)
  • Symposium: "Should the Government Recognize Same-Sex Marriage?" University of Chicago Law School Roundtable, 7:1-60 (2000) (two panel sessions)
  • Symposium: "State Marriage Amendments," Florida Coastal Law Review, 7:181-472 (2005) (ten articles)
  • "Symposium 2006: Same-Sex Couples and the Exclusive Commitment: Untangling the Issues and Consequences," Rutgers Law Review, 59:221-412 (2007) (seven articles)

Polygamy

  • Chambers, David L., "Polygamy and Same-Sex Marriage," Hofstra Law Review, 26:53-83 (1997)
  • Gher, Jaime M. "Polygamy and Same-Sex Marriage--Allies or Adversaries within the Same-Sex Marriage Movement," William & Mary Journal of Women & the Law, 14:559-603 (2008)
  • Kindregan, Charles P., Jr., "Religion, Polygamy, and Non-Traditional Families: disparate views on the evolution of marriage in history and in the debate over same-sex unions," Suffolk University Law Review, 41:19-48 (2007)
  • Strassberg, Maura I., "The Challenge of Post-Modern Polygamy: Considering Polyamory," Capital University Law Review, 31:439-563 (2003)

Other Articles

  • Abramschmitt, Celine, "The Same-Sex Marriage Prohibition: Religious Morality, Social Science, and the Establishment Clause," FIU Law Review, 3:113-186 (2007). [not examined]
  • Allen, Douglas W. "An Economic Assessment of Same-Sex Marriage Laws," Harvard Journal of Law & Public Policy, 29:949-980 (2006).
  • American Bar Association, "A White Paper: An Analysis of the Law Regarding Same-Sex Marriage, Civil Unions, and Domestic Partnership," Family Law Quarterly, 38:339-425 (2004)
  • Berger, Eric, "Lawrence's Stealth Constitutionalism and Same-Sex Marriage Litigation," William & Mary Bill of Rights Journal, 21:765-820 (2013)
  • Boonin, David, "Same-Sex Marriage and the Argument from Public Disagreement," Journal of Social Philosophy, 30:251-259 (June 1999)
  • Boucai, Michæl, "Sexual Liberty and Same-Sex Marriage: An Argument from Bisexuality," San Diego Law Review, 49:415-486 (2012)
  • Buckley, F.H., & Larry E. Ribstein, "Calling a Truce in the Marriage Wars," University of Illinois Law Review, 2001:561-610
  • Cahill, Courtney Megan, "If Sex Offenders Can Marry, Then Why Not Gays and Lesbians?": an Essay on the Progressive Comparative Argument." Buffalo Law Review, 55:777-814 (2007)
  • Carter, Stephen L., "'Defending' Marriage: a Modest Proposal," Howard Law Journal, 41:215-228 (1998)
  • Christensen, Craig W., "If not marriage? On Securing Gay and Lesbian Family Values by a 'Simulacrum of" Marriage,' " Fordham Law Review, 66:1699-1784 (April 1998)
  • Clark, Stephen, "Same-Sex but Equal: Reformulating the Miscegenation Analogy," Rutgers Law Journal, 34:107-185 (2002)
  • Copeland, Charlton, "Creation Stories: Stanley Hauerwas, Same-Sex Marriage, and Narrative in Law and Theology," Law & Contemporary Problems, 75:87-113 (2012)
  • Culbertson, Tucker, "Arguments Against Marriage Equality: Commemorating & Reconstructing Loving v. Virginia.Washington University Law Review, 85:575-609 (2007). Argues for rights to sex and family, but against a fundamental right to marry.
  • Culhane, John G., "A 'Clanging Silence': Same-Sex Couples and Tort Law," Kentucky Law Journal, 89:911-996 (2001)
  • Culhane, John G., "Marriage Equality? First, Justify Marriage (If You Can)," Drexel Law Review, 1:485-511 (2009)
  • Culhane, John G., "Public Health and Marriage (Equality," in: Reconsidering Law and Policy Debates: A Public Health Perspective, edited by John G. Culhane, at 89-122 (Cambridge University Press, 2011)
  • Dane, Perry, "A Holy Secular Institution," Emory Law Journal, 58:1123-1194 (2009), available at http://ssrn.com/abstract=1293946
  • Dane, Perry, "The Intersecting Worlds of Religious and Secular Marriage," in Law and Religion: Current Legal Issues, 4:385- (Richard O'Dair & Andrew Lewis, eds., Oxford University Press 2001)
  • Devins, Neal, "Same-Sex Marriage and the New Judicial Federalism: Why State Courts Should Not Consider Out-of-State Backlash," in: New Frontiers of State Constitutional Law: Dual Enforcement of Norms, edited by james A. Gardner & Jim Rossi, at 81-102 (Oxford University Press, 2011)
  • Donovan, James, "An Ethical Argument to Restrict Domestic Partnerships to Same-Sex Couples," Law & Sexuality, 8:649-670 (1998)
  • Donovan, James M., "Same-Sex Union Announcements: Whether Newspapers Must Publish Them, and Why We Should Care," Brooklyn Law Review,, 68:721-807 (2003).
  • Donovan, James M. Comment. "Same-Sex Union Announcements: Précis on a Not So Picayune Matter," Loyola Law Review, 49:171-213 (2003).
  • Dubler, Ariela R. "From McLaughlin v. Florida to Lawrence v. Texas: Sexual Freedom and the Road to Marriage." Columbia Law Review, 106:1165-1187 (2006)
  • Duncan, William C., "Domestic Partnership Laws in the United States: A Review and Critique," Brigham Young Univ. Law Review, 2001:961-992 (part of "Symposium on the ALI Principles of the Law of Family Dissolution")
  • Duncan, William C., " 'The Mere Allusion to Gender' : Answering the Charge that Marriage is Sex Discrimination," St. Louis University Law Journal, 46:963-971 (2002)
  • Dunson, Daniel, "A Right to a Word? The Interplay of Equal Protection and Freedom of Thought in the Move to Gender-Blind Marriage," Albany Government Law Review, 5:552-612 (2012)
  • Eskridge, William N., Jr., "Backlash Politics: How Constitutional Litigation has Advanced Marriage Equality in the United States," Boston University Law Review, 53:275-323 (2013)
  • Ewing, Randall P., Jr., "Same-Sex Marriage: a Threat to Tiered Equal Protection Doctrine?" St. John's Law Review, 82:1409-1446 (2008).
  • Failinger, Marie A., "A Peace Proposal for the Same-Sex Marriage Wars: Restoring the Household to its Proper Place," William & Mary Journal of Women & the Law. 10:195-293 (2004)
  • Fletcher, Matthew L.M. "Same-Sex Marriage, Indian Tribes, and the Constitution." University of Miami Law Review, 61:53-85 (2006)
  • Franke, Katherine M., "The Politics of Same-Sex Marriage Politics," Columbia Journal of Gender & Law, 15:236-248 (2006).
  • Friedman, Lawrence, "Not the Usual Suspects: Suspect Classification Determinations and Same-Sex Marriage Prohibitions," Washburn Law Journal, 50:61-77 (2010).
  • Graff, Ariel Y., "Free Exercise and Hybrid Rights: an Alternative Perspective on the Constitutionality of Same-Sex Marriage Bans," University of Hawai`i Law Review, 29:23-57 (2006). Suggests religious exemption from bans on same-sex marriage.
  • Graham, Tiffany C., "Exploring the Impact of the Marriage Amendments: Can Public Employers Offer Domestic Partner Benefits to Their Gay and Lesbian Employees?" Virginia Journal of Social Policy & the Law, 17:83-143 (2009). Appendices give texts of state constitutional amendments, grouped by type.
  • Grodin, Joseph R. "Same-Sex Relationships and State Constitutional Analysis," Willamette Law Review, 43:235-249 (2007).
  • Hill, Natalie, "The Nature of Dependence and the Legal Recognition of Same-Sex Relationships," Alternative Law Journal, 24:170-174 (Aug.1999)
  • Hull, Kathleen E., "The Cultural Power of Law and the Cultural Enactment of Legality: the Case of Same-Sex Marriage," Law & Social Inquiry, 28:629-657 (2003)
  • Kim, Suzanne A. "Marital Naming/Naming marriage: Language and Status in Family Law," Indiana Law Journal, 85:893-953 (2010)
  • Kim, Suzanne A., "Toward Skeptical Marriage Equality," Rutgers School of Law-Newark Research Papers No. 060, (Dec.4, 2009)
  • Klarman, Michæl J. "Brown and Lawrence (and Goodridge)," Michigan Law Review, 104:431-489 (2005) Discusses Supreme Court's avoidance of SSM issue in Lawrence, at 450-452, and the backlash against SSM at 459-473. Predicts increasing support for SSM.
  • Knauer, Nancy J. "The Recognition of Same-Sex Relationships: Comparative Institutional Analysis, Contested Social Goals, and Strategic Institutional Choice," University of Hawai`i Law Review, 28:23-80 (2005)
  • Knauer, Nancy J., "Same-Sex Marriage and Federalism," Temple Political & Civil Rights Law Review, 17:421-442 (2008).
  • Krause, Harry D., "Marriage for the New Millennium: Heterosexual, Same Sex--Or Not At All?" Family Law Quarterly 34:271-300 (Summer 2000)
  • Kubasek, Nancy K.; Jennings, Kara; & Browne, Shannon T., "Fashioning a Tolerable Domestic Partners Statute in an Environment Hostile to Same-Sex Marriages," Law & Sexuality, 7:55-85 (1997)
  • Kubasek, Nancy K., Alex Frondorf & Kevin J. Minnick, "Civil Union Statutes: A Shortcut to Legal Equality for Same-Sex Partners in a Landscape Littered with Defense of Marriage Acts,"University of Florida Journal of Law & Public Policy, 15:229-259 (2004)
  • Lau, Holning, "Formalism: from Racial Integration to Same-Sex Marriage," Hastings Law Journal, 59:843-876 (2008)
  • Law, Sylvia A., "Who Gets to Interpret the Constitution? The Case of Mayors and Marriage Equality," Stanford Journal of Civil Rights & Civil Liberties, 3:1-52 (2007).
  • Lifshitz, Shahar, "A Potential Lesson from the Isræli Experience for the American Same-Sex Marriage Debate," BYU Journal of Public Law, 22:359-382 (2008)
  • Linton, Paul Benjamin, "Same-Sex 'Marriage' under State Equal Rights Amendments," St. Louis University Law Journal, 46:909-962 (2002)
  • Lipkin, Robert Justin, "The Harm of Same-Sex Marriage: Real or Imagined?" Widener Law Review 11:277-308 (2005).
  • Lister, Matthew, "A Rawlsian Argument for Extending Family-Based Immigration Benefits to Same-Sex Couples," University of Memphis Law Review, 37:745-780 (2007).
  • McClain, Linda C., "Red Versus Blue (and Purple) States and the Same-Sex Marriage Debate: From Values Polarization to Common Ground?" UMKC Law Review, 77:415-455 (2008).
  • Mikochik, Stephen L., "The Supreme Court and the Future of Marriage." University of Detroit Mercy Law Review, 84:479-498 (2007). Mainly history of prohibitions on sodomy.
  • Musselman, James L., "What's Love Got to Do With It? A Proposal for Elevating the Status of Marriage by Narrowing Its Definition, While Universally Extending the Rights and Benefits Enjoyed by Married Couples," Duke Journal of Gender Law& Policy, 16:37-87 (2009).
  • Newman, Stephen A. "The Use and Abuse of Social Science in the Same-Sex Marriage Debate," New York Law School Law Review, 49:537-560 (2004-2005).
  • Nicolas, Peter, "Common Law Same-Sex Marriage," Connecticut Law Review, 43:931-947 (2011)
  • Novkov, Julie, "The Miscegenation/Same-Sex Marriage Analogy: What Can We Learn from Legal History? Law & Social Inquiry, 33:345-386 (2008).
  • O'Brien, Raymond C., "The Reawakening of Marriage," West Virginia Law Review, 102:339-391 (1999) (discusses SSM debate at 358-364)
  • Orth, John V., "Night Thoughts: Reflections on the Debate Concerning Same-Sex Marriage," Nevada Law Journal, 3:560-571 (2003)
  • Pascoe, Peggy, "Sex, Gender, and Same-Sex Marriage," in: Is Academic Feminism Dead? : Theory in Practice , edited by The Social Justice Group at The Center for Advanced Feminist Studies, University of Minnesota. ( New York University Press, 2000)
  • Poirier, Marc R. "Same-Sex Marriage, Identity Processes, and the Kulturkampf: Why Federalism Is Not the Main Event," Temple Political & Civil Rights Law Review, 17:387-420 (2008).
  • Poirier, Marc R., "The Cultural Property Claim Within the Same-Sex Marriage Controversy," Columbia Journal of Gender & Law, 17:343-418 (2008).
  • Poirier, Marc R., "Gender, Place, Discursive Space: Where Is Same-Sex Marriage?" FIU Law Review, 3:307-339 (2008).
  • Poirier, Marc R., "Microperformances of Identity: Visible Same-Sex Couples and the Marriage Controversy," Washington & Lee Journal of Civil Rights & Social Justice 15:3-84 (2008).
  • Posner, Richard A. "Should There Be Homosexual Marriage? And If So, Who Should Decide?" Michigan Law Review, 95:1578-1587 (May 1997). Review of Eskridge book.
  • Redding, Jeffrey A. "Dignity, Legal Pluralism, and Same-Sex Marriage." Brooklyn Law Review, 75:791-863 (2010). Argues for " 'separate and better' gay and lesbian alternatives to majoritarian (heterosexual) marriage."
  • Redding, Richard E. "It's Really About Sex: Same-Sex Marriage, Lesbigay Parenting, and the Psychology of Disgust. " Duke Journal of Gender Law & Policy, 15:127-193 (2008)
  • Ribstein, Larry E. , "A Standard Form Approach to Same Sex Marriage" (September 2004). University of Illinois Legal Working Paper Series. University of Illinois Law and Economics Working Papers, Working Paper 9. http://law.bepress.com/uiuclwps/papers/art9, published Creighton Law Review, 38:309-335 (2005)
  • "Rights & Wrongs: Morality in the Gay Marriage Debate." Georgetown Journal of Gender & Law, 9:337-377 (2008)
  • Robson, Ruthann, "Assimilation, Marriage, and Lesbian Liberation," Temple Law Review, 75:709-820 (2002).
  • Romero, Victor C., "Asians, Gay Marriage, and Immigration: Family Unification at a Crossroads. Indiana International & Comparative Law Review, 15:337-347 (2005).
  • Rosky, Clifford J., "Perry v. Schwarzenegger and the Future of Same-Sex Marriage Law," Arizona Law Review, 53:913-983 (2011)
  • Sáez, Macarena, "Same-Sex Marriage, Same-Sex Cohabitation, and Same-Sex Families around the World: Why 'Same' is So Different," American University Journal of Gender, Social Policy & the Law, 19:1-54 (2011)
  • "Same Sex Marriage and Its Implications for Employee Benefits: Proceedings of the 2005 Meeting of the Association of American Law Schools Sections on Employee Benefits, and Sexual Orientation and Gender Identity Issues," Employee Rights & Employment Policy Journal, 9:499-520 (2005).
  • Schelberg, Neal S. and Carrie L. Mitnick, "Same-Sex Marriage: the Evolving Landscape for Employee Benefits," Hofstra Labor & Employment Law Journal, 22:65-80 (2004).
  • "Scholars' Conference on Same-Sex Marriage and Religious Liberty," The Beckett Fund for Religious Liberty, May 4, 2006.
  • Schragger, Richard C. "Cities as Constitutional Actors: the Case of Same-Sex Marriage," Journal of Law & Politics, 21:147-185 (2005). Argues for local authority to determine marriage eligibility.
  • Simson, Gary J., "Religion by Any Other Name? Prohibitions on Same-Sex Marriage and the Limits of the Establishment Clause,Columbia Journal of Gender & Law, 23:132-201 (2012). Concludes that bans on same-sex marriage violate the Establishment Clause.
  • Spitz, Laura, "At the Intersection of North American Free Trade and Same-Sex Marriage," UCLA Journal of International Law & Foreign Affairs, 9:163-226 (2004)
  • "Symposium Issue: Making Constitutional Change: The Past, Present, and Future Role of Perry v. Brown," New York University Review of Law & Social Change, v.37 no.1 (2013),http://socialchangenyu.com/archives/2013-2/volume-37-issue-1/ (29 articles); see also http://socialchangenyu.com/symposium/learn-more/ for time-line, transcripts and briefs.
  • "Symposium: Updating the LGBT Intracommunity Debate Over Same-Sex Marriage," Rutgers Law Review, 61:493-593 (2009) (four articles)
  • Titshaw, Scott, "The Reactionary Road to Free Love: How DOMA, State Marriage Amendments, and Social Conservatives Undermine Traditional Marriage," West Virginia Law Review, 115:205-304 (2012)
  • Tribe, Laurence H., and Joshua Matz, "An Ephemeral Moment: Minimalism, Equality, and Federalism in the Struggle for Same-Sex Marriage Rights," Review of Law & Social Change, 37:199-212 (2013)
  • Vetri, Dominick, "Almost Everything You Always Wanted to Know about Lesbians and Gay Men, Their Families, and the Law," Southern University Law Review, 26:1-91 (Nov.1998)
  • Waldman, Ari Ezra, "Marriage Rights and the Good Life: A Sociological Theory of Marriage and Constitutional Law," Hastings Law Journal , 64:739-780 (2013)
  • Widiss, Deborah A., "Changing the Marriage Equation," Washington University Law Review, 89:721-794 (2012). Discusses same-sex marriage starting at 771.
  • Williams, Norman R., "Executive Review in the Fragmented Executive: State Constitutionalism and Same-Sex Marriage," University of Pennsylvania Law Review, 154:565-648 (2006). At 577-589, discusses actions of Governors of California and Oregon regarding SSM.
  • Yordy, Eric D., "Caught in the Clause: An Analysis of Same-Sex Marriage Through the Lens of the Establishment Clause," Tulane Journal of Law & Sexuality, 22:55-89 (2013)

Web-based Resources

Articles Supporting Same-Sex Marriage

  • Ball, Carlos A., "The Backlash Thesis and Same-Sex Marriage: Learning from Brown v. Board of Education and its Aftermath," William & Mary Bill of Rights Journal, 14:1493-1538 (2006)
  • Ball, Carlos A., "Moral Foundations for a Discourse on Same-Sex Marriage: Looking Beyond Political Liberalism," Georgetown Law Journal, 85:1871-1943 (June 1997)
  • Ball, Carlos A., "The Positive in the Fundamental Right to Marry: Same-Sex Marriage in the Aftermath of Lawrence v. TexasMinnesota Law Review, 88:1184-1232 (2004)
  • Becker, Mary, "Family Law in the Secular State and Restrictions on Same-Sex Marriage: Two Are Better Than One," University of Illinois Law Review, 2001:1-56 (Winter 2001)
  • Bonauto, Mary L., "Civil Marriage as a Locus of Civil Rights Struggles," Human Rights, 30(3):3-7 (Summer 2003) (American Bar Association, Section of Individual Rights and Responsibilities)
  • Burt, Robert A. "Overruling Dred Scott: the Case for Same-Sex Marriage." Widener Law Journal, 17:73-95 (2007)
  • Chartier, Gary, "Natural Law, Same-Sex Marriage, and the Politics of Virtue," UCLA Law Review , 48:1593-1632 (Aug.2001)
  • Cooper, Elizabeth B. "Who Needs Marriage?: Equality and the Role of the State. Journal of Law & Family Studies, 8:325-362 (2006)
  • Cox, Barbara J., "'The Little Project': From Alternative Families to Domestic Partnerships to Same-Sex Marriage," Wisconsin Women's Law Journal, 15:77-92 (2000)
  • Cox, Barbara J., " 'A Painful Process of Waiting': the New York, Washington, New Jersey, and Maryland Dissenting Justices Understand that 'Same-Sex Marriage' is Not What Some Same-Sex Couples Are Seeking," California Western Law Review, 45:139-178 (2008).
  • Cruz, David B. " 'Just Don't Call It Marriage': the First Amendment and Marriage as an Expressive Resource," Southern California Law Review, 74:925-1026 (May 2001)
  • Culhane, John G., "Uprooting the Arguments Against Same-Sex Marriage," Cardozo Law Review, 20:1119-1211 (1999)
  • Donovan, James, "Rock-Salting the Slippery Slope: Why Same-Sex Marriage is Not a Commitment to Polygamous Marriage," Northern Kentucky Law Review, 29:521-590 (2002)
  • Eskridge, William N., Jr., "Comparative Law and the Same-Sex Marriage Debate: A Step-by-Step Approach Toward State Recognition," McGeorge Law Review, 31:641-672 (Spring 2000)
  • Eskridge, William N., Jr., "Equality Practice: Liberal Reflections on the Jurisprudence of Civil Unions," Albany Law Review, 64:853-881 (2001)
  • Fair, Bryan K., "The Ultimate Association: Same-Sex Marriage and the Battle against Jim Crow's Other Cousin," University of Miami Law Review, 63:269-299 (2008)
  • Freeman, M.D.A., "Not Such a Queer Idea: Is There a Case for Same Sex Marriage?" Journal of Applied Philosophy, 16:1-17 (1999)
  • Goldberg, Suzanne B., "A Historical Guide to the Future of Marriage for Same-Sex Couples," Columbia Journal of Gender & Law, 15:249-272 (2006). Includes Brief of Professors of History & Family Law as Amici Curiæ in Support of Plaintiffs-Respondents in Hernandez v. Robles(New York Supreme Court, July 28, 2005)
  • Graham, Tiffany C., "Something Old, Something New: Civic Virtue and the Case for Same-Sex Marriage. UCLA Women's Law Journal, 17:53-120 (2008).
  • Harrison, Jack B., "The Future of Same-Sex Marriage After Lawrence v. Texas and the Election of 2004," University of Dayton Law Review, 30:313-338 (2005)
  • Katz, Pamela S., "The Case for Legal Recognition of Same-Sex Marriage," Journal of Law & Policy, 8:61-106 (1999)
  • Koons, Judith E. " 'Just' Married?: Same-Sex Marriage and a History of Family Plurality," Michigan Journal of Gender & Law, 12:1-85 (2005).
  • Koppelman, Andrew, "Is Marriage Inherently Heterosexual?" American Journal of Jurisprudence, 42:51-95 (1997)
  • Kuykendall, Mæ, "Resistance to Same-Sex Marriage as a Story about Language: Linguistic Failure and the Priority of a Living Language," Harvard Civil Rights-Civil Liberties Law Review, 34:385-435 (1999)
  • Landers, Renee M., "A Marriage of Principles: the Relevance of Federal Precedent and International Sources of Law in Analyzing Claims for a Right to Same-Sex Marriage," New England Law Review, 41:683-710 (2007).
  • Lenhardt, R. A. "Beyond Analogy: Perez v. Sharp, Antimiscegenation Law, and the Fight for Same-Sex Marriage. California Law Review, 96:839-900 (2008).
  • Lipkin, Robert Justin, "The Harm of Same-Sex Marriage: Real or Imagined?" 11 Widener Law Review, 11:277-308 (2005)
  • Lombino, Richard M., II, "Gay Marriage: Equality Matters," Southern California Review of Law & Women's Studies, 14:3-23 (2004).
  • Montgomery, Jason, "An Examination of Same-Sex Marriage and the Ramifications of Lawrence v. Texas," Kansas Journal of Law & Public Policy, 14:687-707 (2005)
  • Morrison, Adele M., "Same-Sex Loving: Subverting White Supremacy Through Same-Sex Marriage," Michigan Journal of Race & Law, 13:177-225 (2007).
  • Patterson, Charlotte J., "Same-Sex Marriage and the Interests of Children...," Virginia Journal of Social Policy & Law, 9:345-351 (2001)
  • Perry, Michæl J., "Christians, the Bible, and Same-Sex Unions: An Argument for Political Self-Restraint," Wake Forest Law Review, 36:449-485 (Summer 2001)
  • Ross, Josephine, "Riddle for our Times: The Continued Refusal to Apply the Miscegenation Analogy to Same-Sex Marriage," Rutgers Law Review, 54:999-1019 (2002)
  • Ross, Josephine, "Sex, Marriage, and History: Analyzing the Continued Resistance to Same-Sex Marriage," SMU Law Review 55:1657-1681 (2002)
  • Samar, Vincent J., "Privacy and the Debate Over Same-Sex Marriage Versus Unions," DePaul Law Review, 54:783-804 (2005).
  • Sedler, Robert A., "The Constitution Should Protect the Right to Same-Sex Marriage," Wayne Law Review, 49:975-1005 (2004)
  • Silverman, Lewis A., "Suffer the Little Children: Justifying Same-Sex Marriage from the Perspective of a Child of the Union," West Virginia Law Review, 102:411-458 (Winter 1999)
  • Sparling, Tobin A., "All in the Family: Recognizing the Unifying Potential of Same-Sex Marriage," Law & Sexuality, 10:187-209 (2001)
  • Strassberg, Maura L., "Distinctions of Form or Substance: Monogamy, Polygamy and Same-Sex Marriage," North Carolina Law Review, 75:1501-1624 (June 1997)
  • Strasser, Mark, "Equal Protection, Same-Sex Marriage, and Classifying on the Basis of Sex," Pepperdine Law Review, 38:1021-1052 (2011)
  • Strasser, Mark, "Lawrence and Same-Sex Marriage bans: On Constitutional Interpretation and Sophistical Rhetoric," Brooklyn Law Review, 69:1003-1036 (2004)
  • Strasser, Mark, "Loving in the New Millennium: On Equal Protection and the Right to Marry," University of Chicago Law School Roundtable, 7:61-90 (2000)
  • Strasser, Mark, "Natural Law and Same-Sex Marriage," DePaul Law Review, 48:51-81 (Fall 1998)
  • Strasser, Mark, "Same-Sex Marriage Referenda and the Constitution: on Hunter, Romer, and Electoral Process Guarantees," Albany Law Review, 64:949-981 (Spring 2001)
  • Strasser, Mark, "Same-Sex Marriages and Civil Unions: On Meaning, Free Exercise, and Constitutional Guarantees," Loyola University of Chicago Law Journal, 33:597-630 (2002)
  • Strasser, Mark, "Same-Sex Marriage and the Right to Privacy," Journal of Law & Family Studies, 13:117-150 (2011), available at http://www.epubs.utah.edu/index.php/jlfs/article/viewFile/493/360
  • Strasser, Mark, "Toleration, Approval, and the Right to Marry: on Constitutional Limitations and Preferential Treatment," Loyola of Los Angeles Law Review, 35:65-99 (Nov.2001)
  • Strasser, Mark, "Lawrence, Mill, and Same-Sex Relationships: On Values, Valuing, and the Constitution," Southern California Interdisciplinary Law Journal, 15:285-306 (2006).
  • "Symposium on Same-Sex Marriage, Civil Unions, and Domestic Partnerships," Capital University Law Review, 30:221-408 (2002) (six articles)
  • Symposium, "The Right to Marry: Making the Case to Go Forward," Widener Law Journal, 13:691-877 (2004) (seven articles)
  • Tribe, Laurence H. , "The Constitutional Inevitability of Same-Sex Marriage," Maryland Law Review, 71:471-489 (2012) (co-authored with student Joshua Matz)
  • Vetri, Dominick, "The Gay Codes: Federal & State Laws Excluding Gay & Lesbian Families," Willamette Law Review, 41:881-940 (2005).
  • Volokh, Eugene, "Same-Sex Marriage and Slippery Slopes," Hofstra Law Review, 33:1155-1201 (2005).
  • Wald, Michæl S., "Same-Sex Couple Marriage: A Family Policy Perspective," Virginia Journal of Social Policy & Law, 9:345-351 (2001)
  • Wedgwood, Ralph, "The Fundamental Argument for Same-Sex Marriage," Journal of Political Philosophy, 7:225-242 (Sept.1999)
  • Widiss, Deborah A., Elizabeth L. Rosenblatt and Douglas NeJaime, "Exposing Sex Stereotypes in Recent Same-Sex Marriage Jurisprudence," Harvard Jornal of Law & Gender, 30:461-505 (2007).
  • Wolfson, Evan, "For Richer, For Poorer: Same-Sex Couples and the Freedom to Marry as a Civil Right," (June 2003) (Drum Major Institute for Public Policy)
  • Wriggins, Jennifer, "Marriage Law and Family Law: Autonomy, Interdependence, and Couples of the Same Gender," Boston College Law Review, 41:265-325 (March 2000)

Divorce

  • Oppenheimer, Elisabeth, "No Exit: The Problem of Same-Sex Divorce," North Carolina Law Review, 90:73-124 (2012)

Parenting and Children

  • Appell, Annette R. , "The Endurance of Biological Connection: Heteronormativity, Same-Sex Parenting and the Lessons of Adoption," BYU Journal of Public Law, 22:289-325 (2008)
  • Bowen, Deirdre M., "The Parent Trap: Differential Familial Power in Same-Sex Families," William & Mary Journal of Women & Law, 15:1-49 (2008).
  • Graham, Kathy T., "Same-Sex Couples: Their Rights as Parents, and Their Children's Rights as Children," Santa Clara Law Review, 48:999-1037 (2008).
  • Schumm, Walter R. "Empirical and Theoretical Perspectives from Social Science on Gay Marriage and Child Custody Issues." St. Thomas Law Review, 18:425-471 (2005)
  • [Symposium:] The Impact of Same-Sex Marriage on Education. BYU Education & Law Journal, 2011: 177-635.

Taxation

  • Alms, James; Badgett, M.V.Lee; & Whittington, Leslie A., "Wedding Bell Blues: The Income Tax Consequences of Legalizing Same-Sex Marriage," National Tax Journal, 53:201-214 (June 2000).
  • Black, Stephen T., "Same-Sex Marriage and Taxes," BYU Journal of Public Law, 22:327-357 (2008)
  • Dorocak, John R., "Same Sex Couples and the Tax Law: Tax Filing Status for Lesbians and Others," Ohio Northern Univ. Law Review, 33:19-39 (2007).
  • Rickey, Anthony, "Loving Couples, Split Interests: Tax Planning in the Fight to Recognize Same-Sex Marriage," Berkeley Journal of Gender Law & Justice, 23:145-180 (2008)
  • Seto, Theodore P., "The Unintended Tax Advantages of Gay Marriage," Washington & Lee Law Review, 65:1529-1592 (2008).

Doma Conflict of Laws, and Interstate Recognition (U.S.)

Executive materials

  • Statement of the Attorney General on Litigation Involving the Defense of Marriage Act, Feb. 23, 2011 http://www.justice.gov/opa/pr/2011/February/11-ag-222.html (announcing that the Department of Justice "will not defend the constitutionality of Section 3 of DOMA as applied to same-sex married couples")

Legislative materials

  • "Defense of Marriage Act," Pub. L. 104-199, 110 Stat. 2419 (approved Sept.21,1996) (codified at 1 U.S.C. §7, 28 U.S.C. §1738c) Enrolled bill: http://thomas.loc.gov/cgi-bin/query/z?c104:H.R.3396.ENR: (For legislative history of DOMA, see my earlier pathfinder "Same Sex Marriage" (1996) at http://www-rci.rutgers.edu/~axellute/ssm.htm#doma)
  • >"Marriage Protection Act of 2003," H.R. 3313, 108th Cong. (introduced Oct.16,2003 by Rep. Hostettler), would prohibit federal court review of questions under DOMA.
  • "Marriage Protection Act of 2007," H.R. 724, 110th Congress (introduced Jan.30,2007 by Rep. Burton), would prohibit federal court review of validity or interpretation of DOMA.
  • "State Regulation of Marriage is Appropriate Act," H.R. 2677, 108th Cong. (introduced July 9, 2003 by Rep. Frank), would repeal 1 U.S.C. §7.

Federal Court Decisions

  • In re Kandu, 315 B.R. 123,(Bkrcy., W.D. Wash. Aug.17,2004), opinion available at https://www.courtlistener.com/opinion/1551683/in-re-kandu/ Rejecting various constitutional challenges to DOMA, Judge Paul B. Snyder of the U.S. Bankruptcy Court for the Western District of Washington dismissed a joint bankruptcy petition by two women, U.S. citizens, who had been married in British Columbia.
  • Smelt v. County of Orange, 374 F.Supp.2d 861 (C.D. Cal. June 16, 2005), opinion available on Court Listener website at https://www.courtlistener.com/opinion/2398067/smelt-v-county-of-orange/. Held that §3 of DOMA is constitutional; plaintiffs lacked standing to challenge §2 of DOMA; and abstained from deciding constitutionality of California's man-woman marriage statute pending completion of review in state courts. Affirmed in part, vacated in part, by:
  • Smelt v. County of Orange, 447 F.3d 673, (9th Cir. May 5, 2006), cert. denied by U.S.Supreme Court, Oct.10,2006. Abstained from deciding federal constitutional challenge to Calif. Family Code, and found plaintiff lacked standing to challenge federal Defense of Marriage Act.
  • Gill v. Office of Personnel Management, No.1:09-cv-10309-JLT (D. Mass. July 8, 2010), available on the Commonwealth of Massachusetts website at www.mass.gov/ago/doma/gill-v-opm-decision.pdf U.S. District Court held that Section 3 of DOMA was unconstitutional as applied to plaintiffs. Affirmed under the name Commonwealth of Massachusetts v. U.S. Dep't of Heath & Human Services, No.10-2204 (1st Cir. May 31, 2012), http://caselaw.findlaw.com/us-1st-circuit/1601712.html (with holding stayed pending Supreme Court appeal). For further documents on this case and on the case Pedersen v. Office of Personnel Management No. 310 CV 1750 (VLB) (D. Conn.), see GLAD website at http://www.glad.org/doma/.
  • Commonwealth of Massachusetts v. Department of Health & Human Services, No.1:09-cv-11156-JLT (D. Mass. July 8, 2010), available athttp://lawprofessors.typepad.com/files/massachusetts-doma-decision.pdf. U.S. District Court held Section 3 of DOMA unconstitutional under Tenth Amendment. See further under Gill v. OPM above.
  • Windsor v. United States, 833 F. Supp. 2d 394 (S.D.N.Y. June 12, 2012), available at http://lawprofessors.typepad.com/files/windsor_doma.pdf, declared DOMA section 3 unconstitutional as applied. Affirmed, 699 F.3d 169 (2d Cir. Oct.18, 2012), available at https://www.aclu.org/files/assets/windsor_2d_cir_opinion_pdf.pdfAffirmed, No.12-307 (U.S. Supreme Court, June 26, 2013), http://www.supremecourt.gov/opinions/12pdf/12-307_6j37.pdf

Books and Articles

  • Araujo, Derek C. "A Queer Alliance: Gay Marriage and the New Federalism," Rutgers Journal of Law & Public Policy, 4(1):200-263 (Fall 2006),http://www.rutgerspolicyjournal.org/journal/vol4no1/JLPP_Fall_2006_Araujo.pdf
  • Baker, Joshua and William C. Duncan, "As Goes DOMA...Defending DOMA and the State Marriage Measures," Regent University Law Review, 24:1-47 (2011)
  • Barkacs, Linda L.; Sherry S. Tehrani, and Craig B. Barkacs, "Divorcing the Defense of Marriage Act: Judicial Tensions in Upholding the Legislated Preclusion of Federal Same-Sex Marital Rights," Labor & Employment Law Forum, 3:88-119 (2013)
  • Batts, Deborah A., "Introduction: Repeal DOMA," Human Rights, 30(3):2 (Summer 2003) (American Bar Association, Section of Individual Rights and Responsibilities)
  • Cossman, Brenda, "Betwixt and Between Recognition: Migrating Same-Sex Marriages and the Turn Toward the Private. Law & Contemporary Problems, 71(3):153-168 (Summer 2008).
  • Cox, Stanley E.,"Nine Questions About Same-Sex Marriage Conflicts," New England Law Review, 40:361-408 (2006)
  • Fruehwald, Scott, "Choice of Law and Same-Sex Marriage," Florida Law Review, 51:799-850 (Dec.1999).
  • Gardina, Jackie, "The Perfect Storm: Bankruptcy, Choice of Law, and Same-Sex Marriage." Boston University Law Review, 86:881-930 (2006).
  • Gerhardt, Michæl J., "The Constitutional Limits to Court-Stripping," Lewis & Clark Law Review, 9:347-362 (2005). Argues that the proposed Marriage Protection Act (supra) is unconstitutional. (See also companion article by Redish.)
  • Graham, Kathy T., "Same-Sex Unions and Conflicts of Law: When 'I Do' May be Interpreted as 'No, You Didn't!'," Whittier Journal of Child & Family Advocacy, 3:231-283 (2004)
  • Kersch, Ken I., "Full Faith and Credit for Same-Sex Marriages?" Political Science Quarterly, 112:117-136 (Spring 1997)
  • Knauer, Nancy J., "Same-Sex Marriage and Federalism," Temple Political & Civil Rights Law Review, 17:421-442 (2008).
  • Koppelman, Andrew, "Dumb and DOMA: Why the Defense of Marriage Act is Unconstitutional," Iowa Law Review, 83:1-33 (Oct.1997)
  • Koppelman, Andrew, "Same-Sex Marriage, Choice of Law, and Public Policy," Texas Law Review, 76:921-1001 (April 1998).
  • Koppelman, Andrew, "Interstate Recognition of Same-Sex Marriages and Civil Unions: a Handbook for Judges," University of Pennsylvania Law Review, 153: 2143-2194 (2005). (part of Symposium, "Current Debates in the Conflict of Laws")
  • Koppelman, Andrew, Same Sex, Different States: When Same-Sex Marriages Cross State Lines (Yale University Press, 2006)
  • Kramer, Larry, "Same Sex Marriage, Conflict of Laws, and the Unconstitutional Public Policy Exemption," Yale Law Journal, 106:1965-2008 (1997)
  • Kubasek, Nancy; Christy Glass; & Kate Cook, "Amending the Defense of Marriage Act: A Necessary Step toward Gaining Full Legal Rights for Same-Sex Couples," American University Journal of Gender, Social Policy & the Law, 19:959-986 (2011)
  • McLaughlin, Julia Halloran "DOMA and the Constitutional Coming Out of Same-Sex Marriage," Wisconsin Journal of Law, Gender & Society, 24:145-203 (2009)
  • Redish, Martin H., "Same-Sex Marriage, the Constitution, and Congressional Power to Control Federal Jurisdiction: Be Careful What You Wish For," Lewis & Clark Law Review, 9:363-380 (2005). (See also companion article by Gerhardt.)
  • Rensberger, Jeffrey L., "Interstate Pluralism: the Role of Federalism in the Same-Sex Marriage Debate," BYU Law Review 2008:1703-1807.
  • Rizzo, Christopher, " Banning State Recognition of Same-Sex Relationships: Constitutional Implications of Nebraska's Initiative 416," Journal of Law & Policy, 11:1-66 (2002).
  • Rogers, W. Sherman, "The Constitutionality of the Defense of Marriage Act and State Bans on Same-Sex Marriage: Why They Won't Survive," Howard Law Journal, 54:125-174 (2010).
  • Rosen, Mark D. "Why the Defense of Marriage Act is Not (Yet?) Unconstitutional: Lawrence, Full Faith and Credit, and the Many Societal Actors that Determine what the Constitution Requires," Minnesota Law Review, 90:915-1001 (2006).
  • Sanders, Steve, "The Constitutional Right to (Keep Your) Same-Sex Marriage," Michigan Law Review, 110:1421-1481 (2012)
  • Silberman, Linda, "Same-Sex Marriage: Refining the Conflict of Laws Analysis," University of Pennsylvania Law Review, 153:2195-2214 (2005). (part of Symposium, "Current Debates in the Conflict of Laws")
  • Simson, Gary J., "Beyond Interstate Recognition in the Same-Sex Marriage Debate," University of California Davis Law Review, 40:313-383 (2006).
  • Singer, Joseph William, "Same Sex Marriage, Full Faith and Credit, and the Evasion of Obligation," Stanford Journal of Civil Rights & Civil Liberties, 1:1-50 (2005).
  • Strasser, Mark, "Interstate Marriage Recognition and the Right to Travel," Wisconsin Journal of Law, Gender & Society, 25:1-34 (2010)
  • Strasser, Mark, "Life After DOMA," Duke Journal of Gender Law & Policy, 17:399-424 (2010)
  • Strasser, Mark, "Marriage, Transsexuals, and the Meaning of Sex: on DOMA, Full Faith and Credit, and Statutory Interpretation," Houston Journal of Health Law & Policy, 3:301-330 (2003).
  • Strasser, Mark, "Tribal Marriages, Same-Sex Unions, and an Interstate Recognition Conundrum," Boston College Third World Law Journal, 30:207-237 (2010)
  • "Symposium: Defense of Marriage Act: Law, Policy, and the Future of Marriage," Fordham Law Review, 81:537-836 (2012) (twelve articles)
  • "Symposium: Interjurisdictional Recognition of Civil Unions, Domestic Partnerships, and Benefits," Ave Maria Law Review, 3:393-684 (2005)
  • "Symposium on Interjurisdictional Marriage Recognition," Creighton Law Review, 32:3-485 (Oct.1998) and 32:1063-1083 (Apr.1999) (fourteen articles)
  • "Symposium on the Implications of Lawrence and Goodridge for the Recognition of Same-Sex Marriages and the Validity of DOMA," Creighton Law Review, 38:233-543 (2005) (thirteen articles)
  • Wardle, Lynne D.. "From Slavery to Same-Sex Marriage: Comity Versus Public Policy in Inter-Jurisdictional Recognition of Controversial Domestic Relations," BYU Law Review, 2008:1855-1926
  • Wolff, Tobias Barrington, "Interest Analysis in Interjurisdictional Marriage Disputes," University of Pennsylvania Law Review, 153:2215-2250 (2005). (part of Symposium, "Current Debates in the Conflict of Laws")

Federal Marriage Amendment

  • Alliance for Marriage site, http://www.allianceformarriage.org, includes text and analysis of proposed amendment. (Also at Defend Marriage site http://www.defendmarriage.org.)
  • H.J.Res. 56, 108th Cong. (introduced May 21, 2003 by Rep. Musgrave), and S.J.Res. 26, 108th Cong. (introduced Nov.25,2003 by Sen. Allard), would have added this language to the Constitution:
  • Marriage in the United States shall consist only of the union of a man and a woman. Neither this Constitution, nor the Constitution of any State, nor State or Federal law, shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups.
  • H.J. Res. 39, 109th Cong. (introduced March 17, 2005 by Rep. Lungren) would add this language to the Constitution:
  • SECTION 1. Marriage in the United States shall consist only of a legal union of one man and one woman.
  • SECTION 2. No court of the United States or of any State shall have jurisdiction to determine whether this Constitution or the constitution of any State requires that the legal incidents of marriage be conferred upon any union other than a legal union between one man and one woman.
  • SECTION 3. No State shall be required to give effect to any public act, record, or judicial proceeding of any other State concerning a union between persons of the same sex that is treated as a marriage , or as having the legal incidents of marriage , under the laws of such other State.
  • S.J. Res.1, 109th Cong. (introduced Jan.24, 2005 by Senator Allard), would add this language to the Constitution:
  • Marriage in the United States shall consist only of the union of a man and a woman. Neither this Constitution, nor the constitution of any State, shall be construed to require that marriage or the legal incidents thereof be conferred upon any union other than the union of a man and a woman
  • S. J. Res. 13, 109th Cong. (introduced Apr.14, 2005 by Sen. Brownback) would add this language to the Constitution:
  • SECTION 1. Marriage in the United States shall consist only of the union of a man and a woman.
  • SECTION 2. Congress shall have the power to enforce this article by appropriate legislation.
  • Barr, Bob, "Leave Marriage to the States" Washington Post, Aug.21, 2003.
  • "Institution of Marriage Amendment," proposed by Concerned Women of America, text in CWA press release, Feb.6,2004
  • Mulshine, Paul, " . . . Or forever hold your peace," Star-Ledger, Feb.24, 2004, p.27. Proposes an amendment more conservative than H.J. Res. 56.
  • Judicial Activism vs. Democracy: What are the National Implications of the Massachusetts Goodridge Decision and the Judicial Invalidation of Traditional Marriage Laws? Hearing before U.S. Senate Committee on the Judiciary, Subcommittee on the Constitution, Civil Rights and Property Rights, March 3, 2004. Testimony and member statements available on Committee website at http://judiciary.senate.gov/hearing.cfm?id=1072.
  • Oversight Hearing on "The Defense of Marriage Act," U.S. House of Representatives Committee on the Judiciary, Subcommittee on the Constitution, March 30, 2004. Testimony and webcast available on Subcommittee website, http://www.house.gov/judiciary/constitution.htm
  • Duncan, William C., "The Case for a Federal Marriage Amendment to the Constitution, Civil Rights, Religion & Same-Sex Marriage: Where Are We Going?" Thurgood Marshall Law Review, 30:145-167 (2004)
  • "Symposium: Federal Marriage Amendment: Yes or No?" University of St. Thomas Law Journal, 2:1-223 (2004). (six articles)
  • "Symposium Issue: Same Sex Marriage: The Constitutional Debate," Hastings Constitutional Law Quarterly, 32:637-736 (2004/2005). (five articles)
  • Kaplan, Joshua, "Unmasking the Federal Marriage Amendment: the Status of Sexuality," Georgetown Journal of Gender & Law, 6:105-141 (2005).
  • Krotoszynski, Ronald J., Jr. & E. Gary Spitko, "Navigating Dangerous Constitutional Straits: a Prolegomenon on the Federal Marriage Amendment and the Disenfranchisement of Sexual Minorities," University of Colorado Law Review, 76:599-652 (2005)
  • "Federal Marriage Protection Amendment Symposium" BYU Journal of Public Law, 20:195-548 (2006) (eleven articles)
  • Wilkinson, J. Harvie III, "Gay Rights and American Constitutionalism: What's a Constitution For?" Duke Law Journal, 56:545-581 (2006).

Other Bibliographies

  • American Association of Law Libraries, Social Responsibilities Special Interest Section, Standing Committee on Lesbian and Gay Issues, Sexual Orientation and the Law: A Research Bibliography, Selectively Annotating Legal Literature through 2005 (William S. Hein & Co., 2006) (AALL Publications Series No.74). Part I reprints a bibliography covering 1969-1993, originally published in Law Library Journal 86:1-103 (1994), in which articles on marriage are at pages 37-40. Part II, Annotated Update covering Sept.1993 through Dec.2005, has thoroughly annotated entries 507-645 on same-sex marriage and entries 207-238 on full faith and credit/DOMA.
  • Lynn D. Wardle, "A Critical Analysis of Constitutional Claims for Same-Sex Marriage," Brigham Young University Law Review, 1996:1-101, at 96-100, lists law review articles from 1970-1975 and 1990-June 1995, categorized as pro or con same-sex marriage.
  • Paul Axel-Lute, "Same-Sex Marriage" (Rutgers-Newark Law Library, Pathfinder Series, Oct.1996), http://www-rci.rutgers.edu/~axellute/ssm.htm, lists articles, statutes, and cases through 1996.
  • Daniel J. Jacobs, "Same-Sex Marriages: a Selective Bibliography of Legal and Social Aspects," The Record of the Association of the Bar of the City of New York, 51:687-696 (Oct.1996).
  • Justin W. Starr's compilation, "Law Review Articles Citing Baker v. Vermont," BYU Journal of Public Law, 18:353-370 (2004) (an appendix to an article by Lynn D. Wardle), includes citations to some articles from 2001-2003 not included here.