Proponents fighting for the recognition of same-sex marriage as well as the legal ability to enter into the institution of marriage have typically argued that same-sex marriage bans violate the Fourteenth and Fifth Amendments of the United States Constitution. More specifically, they argue that the bans infringe upon an individual’s fundamental right to marry, discriminate on the basis of sex, and discriminate on the basis of sexual orientation.
State and federal courts have struggled with analyzing the merits of these claims and have been unsure of how to frame the legal issues. The courts have debated whether there is a fundamental right to marry or whether there should be a fundamental right to same-sex marriage. Further, courts are in disagreement over whether sexual orientation should be a suspect class or a quasi-suspect class, deserving of strict or heightened constitutional scrutiny under the equal protection guarantees of the Constitution. To date, most courts seem to agree that sex discrimination claims are untenable in LGBT civil liberty cases.
This Comment explores the definition of marriage as an institution and an individual right by analyzing same-sex marriage in the context of the Due Process and Equal Protection Clause of the Fourteenth Amendment. Additionally, this Comment assesses the development of sex and sexual orientation discrimination challenges in the courts culminating in an analysis of the United States Court of Appeals for the Seventh Circuit's recent decision in Baskin v. Bogan. There, the court struck down same-sex marriage bans, forcing Indiana and Wisconsin to accept same-sex marriage. Finally, this Comment addresses the result reached by the Seventh Circuit in terms of what expanding or limiting effect, if any, the court’s legal reasoning has on the development of LGBT civil rights.
The Twenty-Five-Year Struggle for Marriage Equality: What Impact Does the Seventh Circuit’s Jurisprudence Have on LGBT Civil Liberties?,
Seventh Circuit Rev.
Available at: https://scholarship.kentlaw.iit.edu/seventhcircuitreview/vol10/iss2/3