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69 Md. L. Rev. Endnotes 1 (2010)

handle is hein.journals/endnot69 and id is 1 raw text is: Comment THEORIES OF DISCRIMINATION & GAY MARRIAGE ADAM FARRA* INTRODUCTION America is embroiled in a culture war about gay marriage. This culture war has bled into both the federal legal system and various state legal systems.1 The result is a national patchwork of gay marriage jurisprudence. A variety of courts addressing the same question have arrived at vastly different decisions and rationales, even though the law they applied is not particularly different.2 The question each court has addressed is whether restricting the institution of civil marriage to heterosexual or opposite-sex couples violates some equal protection guarantee or equality principle.3 The answers are anything but consistent.4 This Comment explores the inconsistency and then attempts to explain it. If multiple states are addressing the same question and applying, generally, the same body of law, then why do the results vary so much from state to state?5 Theoretically, if restricting marriage to heterosexual couples violates some basic principle of equal protection, then that legal conclusion should not change much based on jurisdiction. This Comment argues that the answer is embedded within the assumptions and themes guiding each Copyright © 2010 by Adam Farra. * I wish to thank Professor Deborah Hellman and Rachel Shapiro for their enthusiastic support of this Comment. Benjamin Huh, Kerstin Miller, and Kali Enyeart provided excellent editorial support. 1. See infra Part III; see also Complaint at 3, Massachusetts v. U.S. Dep't of Health & Human Servs., No. 09CV11156 (D. Mass. July 8, 2009) (articulating multiple federal constitutional challenges to the Defense of Marriage Act); Complaint for Declaratory, Injunctive, or Other Relief at 1 2, Perry v. Schwarzenegger, No. 09-2292 (N.D. Cal. May 22, 2009) (articulating a federal equal protection clause challenge to a California constitutional amendment banning same-sex marriage). 2. See infra Part III.A C. 3. See infra text accompanying notes 137, 144, 153 156, 170. 4. See infra Part III.A C. 5. Legal realists provide one potentially obvious answer. It might just depend on who the judge is that is interpreting the law. See Thomas J. Miles & Cass R. Sunstein, The New Legal Realism, 75 U. CHI. L. REv. 831, 832 33 (2008) (discussing the increasing use of empirical work to assess the general legal realist claim that judge personality drives outcomes).

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