Same-Sex Marriage and the Constitution

by Evan Gerstmann

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.

236 pages, Paperback

First published August 18, 2003

Reviews

[Maria Kirilova · Rating 4 out of 5]

I really wish there was a third edition that has considered the new changes regarding this problem.

[Travis · Rating 4 out of 5]

(3rd Edition - 2017)

I can only hope that the arguments in this book hold true in these times. Gerstmann utterly dismantles any arguments against constitutional recognition of Same-Sex marriage, relegating the arguments against such recognition down to "Because God told me so", which you would hope would be enough to prevent Obergerfell from being overturned, but honestly, who knows with the Roberts Supreme Court.
For those like myself who aren't well-versed in legal arguments, SSMatC can be difficult to follow sometimes. While on occasion, it does spell out legalistic terms for the layman like myself, other times it does not at all, making the following of such arguments difficult at best.
Overall, Gerstmann's arguments are relatively solid, the only real exception - in my opinion - being the arguments against polygamy. (Please note I am absolutely not in support of polygamy, I am merely making comments on the strength of Gerstmann's case against it). All of his arguments against polygamy were essentially many of those that he just dismissed against same-sex marriage. I found d myself counteracting every single one, which was pretty upsetting, to say the least. Perhaps the only argument that held any weight was that which stated the history of heightened levels of abuse in polygamous marriages, and that was it. Arguing that you aren't restricting someone's love when they limit it to one person? I can very well imagine that a polygamist would highly disagree (so on and so on).
Aside from those relatively minor gripes, it is a well put together book that is eye-opening as to how our legal system came to support the idea of the right to marry. I still can't believe that it has only been ten years, and after Jackson v Dobbs, all I can do is hope that this right stays around.

[Vampire Who Baked · Rating 5 out of 5]

it's less a book on same sex marriage and more a book on constitutional law (in practice) with the same sex marriage issue as a case study. and it's all the better for it.

[Kristina · Rating 5 out of 5]

really thorough read on the reality if the constitutionality of same sex equality. I learned a lot and was educated, and engaged to concepts foreign to my arguments.