About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline

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).

What Is HeinOnline?

HeinOnline is a subscription-based resource containing nearly 3,000 academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline with pricing starting as low as $29.95

Contact us for annual subscription options:

Already a HeinOnline Subscriber?

profiles profiles most