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Same-Sex Marriage Gets A Closer Look From Virginia Law Review

A 78-page report in the Virginia Law Review concludes there is no scholarly basis for banning gay marriage under the U.S. Constitution.

GayRVA Staff | December 7, 2011

An article published in October’s University of Virginia Law Review takes lays out a pathway for an eventual U.S. Supreme Court opinion on the constitutionality of banning gay marriage.

In the report, according to Cornell University Law School professor Michael C. Dorf, there is no scholarly basis for banning gay marriage under the U.S. Constitution.  Dorf explores how bans on marriages and civil unions might be deemed to violate the Establishment Clause or Equal Protection Clause of the U.S. Constitution.

The Long View summarizes the 78-page report:

The article drives home the message that restricting the right to marry based on gender is at the very least a policing and stereotyping of sex roles in a manner inferring that gays and lesbians are second-class citizens. At worst, it is homophobia.

Professor Dorf focuses on two analogies: state-sponsored display of the Confederate flag, and the public school teaching of evolution to the exclusion of creationism. But this blogger finds those examples less relevant to the issue of gay marriage than the opinions of the Supreme Court in granting blacks and whites the right to marry each other, Loving v. Virginia[2]; and in requiring blacks and whites be taught in the same classroom, Brown v. Bd. Ed.[3]

 The full report is available for download here.