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Home > Catalog > Same-Sex Marriage and the Constitution
Same-Sex Marriage and the Constitution


  • Page extent: 236 pages
  • Size: 228 x 152 mm
  • Weight: 0.44 kg

Library of Congress

  • Dewey number: 346.7301/68
  • Dewey version: 22
  • LC Classification: KF539 .G47 2004
  • LC Subject headings:
    • Same-sex marriage--Law and legislation--United States
    • Constitutional law--United States

Library of Congress Record


 (ISBN-13: 9780521811002 | ISBN-10: 0521811007)

  • There was also a Paperback of this title but it is no longer available
  • Published September 2003

Replaced by 9780521882507


Does the Constitution protect the right to same-sex marriage? Taking a careful look at the issue, Evan Gerstmann looks at the legal debate, and asks whether, in a democratic society, the courts, rather than voters, should resolve the question. Gerstmann also asks whether such a court-created law could be effective in the face of public opposition. Evan Gerstmann argues that this problem is one of the most significant constitutional issues facing society because it challenges society's commitment to true legal equality. After graduating with honors from the University of Michigan Law school in 1986, Evan Gerstmann practiced law in New York City for five years. Subsequently, he completed his Masters and Ph.D. in Political Science at the University of Wisconsin. He studies the interaction between law and politics. He has published a book on constitutional law, The Constitutional Class: Gays, Lesbians and the Failure of Class-Based Equal Protection (University of Chicago, 1999), as well as articles on subjects ranging from freedom of speech to how criminal law affects victims of domestic violence.


Part I. The Challenge of Same Sex Marriage: 1. Introduction; 2. Reason and prejudice: is the heterosexual monopoly on marriage rational?; 3. Looking for stricter scrutiny: sexism, heterosexism, and class-based equal protection; Part II. Marriage as a Fundamental Right: 4.The fundamental right to marry; 5. Same-sex marriage and the fundamental right to marry; Part III. Rights and Equality: 6. Should courts create new rights?; 7. Identifying fundamental rights; Part IV. Rights in a Democratic Society: 8. Democracy, neutrality and consistency of principle; 9. Principles and practicalities; Bibliography.


"… this book is a welcome addition to the expanding literature on same-sex marriage …"
Common Law World Review

"… it is scholarly and thorough. It honestly and vigourously addresses the arguments of its opponents. It brings reasoned arguments … It treats both sides with respect and takes seriously their arguments."
INTAMS Journal for the Study of Marriage and Spirituality

"[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 important 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, Minnesota

"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, Ohio

"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."

"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

"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 existing 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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