Law review article: federal government can not recognize right of same-sex couples to marry, or impose outright prohibition of gay marriage

03/23/09 ADF Alliance Alert:


Can the Government Prohibit Gay Marriage? Jesse H. Choper and John C. Yoo, 50 S. Tex. L. Rev. 15 (2008)

(An excerpt is below. To view the full text, please use Westlaw, Lexis, a law library or alternative source.)

Everyone involved in the debate over same-sex marriage understands that the Constitution is centrally involved. We believe that under current doctrine, the Constitution affords some protection to gay marriage, but not in the manner that most would imagine. Under existing judicial interpretation, neither the Due Process Clause nor Equal Protection Clause creates a federally-protected right of individuals of the same sex to marry when prohibited by state law. It is possible that some of the federal government’s powers could be used in ways that could attempt to discourage or prevent the interstate expansion of gay marriage, but we do not think that Congress could impose an outright, nationwide prohibition without a constitutional amendment. We close with a discussion of what we feel should be a presumption in favor of individual liberty in respect to this as a matter of public policy. Even if states have the authority to regulate same-sex marriage, we submit that the case has not been made for states to enact a prohibition.