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Debates

The Equal Protection Clause Does Not Require States To License Same-Sex Marriages

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Live Transcript
  • The Analogy Between Interracial and Same-Sex Marriages

    Clip: Sherif Girgis and John Eastman debate with Kenji Yoshino and his comparison of arguments against same-sex marriage with arguments against interracial marriage.

  • Are We Redefining Marriage by Including Gay Couples?

    Clip: Kenji Yoshino, John Eastman, and Evan Wolfson discuss whether including same-sex couples in marriage redefines the institution and creates a "new right".

Debate Details

The Equal Protection Clause of the Fourteenth Amendment provides: “No State shall … deny to any person within its jurisdiction the equal protection of the laws.” And now, the Supreme Court is poised to answer the question of whether this Clause requires States to license marriages between two people of the same sex. The best guess is that the Court will decide the question in late June. Does the Equal Protection Clause require States to license same-sex marriages, or will they decide that marriage should be between a man and a woman?

The Debaters

For the motion

John Eastman

Chairman, National Organization for Marriage & Professor, Chapman Law

John C. Eastman is the Henry Salvatori Professor of Law & Community Service at Chapman University School of Law, where he was dean from 2007 to... Read More

Sherif Girgis

Co-Author, What Is Marriage?

Sherif Girgis, co-author of What Is Marriage? Man and Woman: A Defense (2012), is currently pursuing his Ph.D. in philosophy at Princeton and his... Read More

Against the motion

Evan Wolfson

Founder & President, Freedom to Marry & Author, Why Marriage Matters

Evan Wolfson is the founder and president of Freedom to Marry, the campaign to win marriage nationwide, and author of Why Marriage Matters: America... Read More

Kenji Yoshino

Professor, NYU Law & Author, Speak Now: Marriage Equality on Trial

Kenji Yoshino is the Chief Justice Earl Warren Professor of Constitutional Law at NYU School of Law. He taught at Yale Law School from 1998 to 2008... Read More

Where Do You Stand?

For The Motion
  • Nowhere in its history, text, or understanding does the Equal Protection Clause require states to redefine marriage to include same-sex couples.
  • Marriage laws are a state's sovereign right, and the traditional definition between one man and one woman, is constitutionally sound.
  • Traditional procreation and child-rearing strengthen society and thus serve as a compelling state interest for marriage restrictions.
  • A right to same-sex marriage would create an entirely new, special constitutional right.
Against The Motion
  • Same-sex marriage bans discriminate based on sex and sexual orientation, and thus violate the Equal Protection Clause.
  • States have no rational basis or government interest in refusing to recognize same-sex marriage. Such bans fail to meet the judicial scrutiny necessary to trump individuals' 14th Amendment protections.
  • Depriving same-sex couples of the legal and societal benefits of marriage—which cannot be recreated through alternative legal substitutes—unfairly burdens them and their children.

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The Research

The Research

Obergefell v. Hodges (14-556); Tanco v. Haslam (14-562); DeBoer v. Snyder (14-571); Bourke v. Beshear (14-574)

Legal Information Institute
December 31, 1969

The Supreme Court will rule on whether the Fourteenth Amendment requires states to recognize same-sex marriages lawfully performed out-of-state and to grant same-sex marriage licenses.

Preview on Same-Sex Marriage: The Couples

Lyle Denniston
April 1, 2015

In this preview of the written arguments that have been filed in the same-sex marriage cases at the Supreme Court, Part 1 covers the briefs of the couples who are challenging the state bans. <a href="http://www.scotusblog.com/2015/04/preview-on-same-sex-marriage-part-iii-... target="_blank">Part III</a> covers the briefs filed by individuals and organizations supporting the couples’ challenge to the states’ bans.

Preview on Same-Sex Marriage: The States

Lyle Denniston
April 1, 2015

A preview of the written arguments that have been filed in the same-sex marriage cases at the Supreme Court: Part II covers the briefs of the four states in defense of their state bans. <a href="http://www.scotusblog.com/2015/04/preview-on-same-sex-marriage-part-iv-s... target="_blank">Part IV</a> covers the briefs filed by individuals and organizations supporting the states’ authority to control the definition of marriage, and, in particular, to prohibit same-sex marriage.

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