LOVING EQUALITY
87
any reference to
Loving
, except as an example of discrimination which has
now been repudiated
.
97
VII. Marriage Equality and Sex Discrimination
Proponents of marriage equality have been successful, in many states, in
obtaining most of the financial and legal
benefits
of marriage, but the ulti-
mate status of marriage to one’s same-sex partner is still elusive in most
states. Although attitudes toward marriage equality are changing, the suc-
cess of “defense of marriage” laws or constitutional amendments in many
states demonstrates that achieving nationwide marriage equality will not
occur in the foreseeable future unless a federal legal remedy is created.
As is true with much litigation that attempts to create new rights, the
manner in which the argument is framed and the structure of the analy-
sis is critical. For example, state courts, for the most part, have refused
to find that same-sex marriage is a fundamental right, even though they
agree that marriage itself is a fundamental right. Early cases establishing
marriage as a fundamental right did not distinguish whether only hetero-
sexual marriage, or marriage in general, was the fundamental right. For
example, in
Skinner v. Oklahoma,
the U.S. Supreme Court stated that mar-
97 “While
Loving
of course does not establish that the right to marry a same-sex partner
is constitutionally protected, it and the subsequent right to marry cases establish the
necessity of closely examining the articulated state interests allegedly justifying such
a marital prohibition. It is difficult to understand how the reasons thus far articulated
to justify same-sex marriage bans could ever withstand the requisite scrutiny.” Mark
Strasser,
Loving in the New Millennium: On Equal Protection and the Right to Marry
,
.
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