of Marriage Act is found unconstitutional by the U.S. Supreme Court
outcome which is by no means certain, it is not clear whether the grounds
upon which that Court may rule will necessarily limit a state’s ability to pro-
hibit marriage equality. For example, it is possible that the Court could rule
that the regulation of marriage is reserved to the states under the Tenth
Amendment of the U.S. Constitution as a valid exercise of a state’s police
power. Therefore, defining the prohibition of marriage equality as a form of
sex discrimination seems to be a strategy that, should the federal courts
adopt this view, is best calculated to ensure marriage equality to citizens of
every state.
VI. Arguments Against Marriage Equality
Litigation and both legal and popular literature suggest that there are at
least three political (as contrasted with legal) arguments that opponents of
marriage equality have used. Some are based upon religious views, others
are based on alleged historical truths, and others reject any comparisons
between the struggle of African Americans for equality and the struggle of
gays for equal rights.
First, some of the cases have focused on the argument that the pur-
pose of marriage is procreation, and that the only “correct” model of a fam-
ily is one with a male father and a female mother. Although some courts
91 In
Golinski v. U.S. Office of Personnel Management
trial court ruled that “heightened scrutiny” (using the language of intermediate scrutiny
of U.S. v. Virginia) should apply to classifications on the basis of sexual orientation,
and on that basis, DOMA violated the equal protection clause. Alternately, said the
court, DOMA also failed using the rational basis test, citing
Lawrence v. Texas
(using rational basis text to invalidate state law against sodomy).
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