Legislating Marriage: A Constitutional Examination of Same-Sex Marriage




Hight, Nita

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One of the most pressing legal issues facing the American legal system is the question of homosexual marriage. Following the legalization of homosexuality following Lawrence v. Texas in 2003, and the Supreme Court’s subsequent 2013 decision to recognize same-­‐‑sex marriages on the federal level in U.S. v. Windsor, few issues can match the fervor with which same-­‐‑sex marriage is discussed. This thesis examines the Court’s jurisprudence concerning marriage, sexual autonomy, privacy, and discrimination in order to determine the appropriate level of scrutiny for the Court to use when examining this issue, and then proceeds to apply that level of scrutiny in order to demonstrate that state bans on same-­‐‑sex marriage are unconstitutional infringements on the liberty of homosexual persons. Finally, I demonstrate that the legalization of same-­‐‑sex marriage will not have the effect of moral degradation feared by some opponents of legalization, namely those expounded upon by Justice Scalia in his famous dissent in Lawrence.



Gay marriage., Same-sex marriage., Gay rights., Homosexuality., Equal protection clause., Due process clause., Constitutional law., Fourteenth amendment., Fifth amendment.