Document Type


Publication Date

Winter 2014

Publication Citation

89 Indiana Law Journal 27 (2014)


In this Essay, I contend that a Fourteenth Amendment right to same-sex marriage will emerge, and properly so, when the Supreme Court determines that justice so requires and when, in the words of Professor Alexander Bickel, the Court’s recognition of this right will “in a rather immediate foreseeable future . . . gain general assent.” I suggest that we are fast approaching that juncture, and I go on to analyze three possible justifications for such a ruling: first, substantive due process; second, heightened scrutiny equal protection; and third, rational basis equal protection coupled with a finding of illicit “animus.” I contend that each form of constitutional justification can find support in evolving national values. I further suggest, however, that the first two alternatives, with primary emphasis on the second, present the best and strongest arguments for a right to same-sex marriage. By contrast, I suggest that it would be misguided, or at least imprudent, for the Court to rely on the third alternative. I argue that the Court’s “animus” reasoning in United States v. Windsor (invalidating the Defense of Marriage Act’s federal-law definition of marriage) was seriously flawed and that, in any event, this line of reasoning should not be extended to the state-law context.