I just finished a terrific book: Same-Sex Marriage and the Constitution, by Evan Gerstmann. It’s oriented toward legal scholars, but it’s only a bit over 200 pages and intelligent people should be able to understand it. Gerstmann’s position is that courts should find same-sex marriage constitutional because there is a fundamental right to marry. He opposes characterizing the issue as one of “gay rights,” because (1) that terminology tends to place gays in the role of victims, (2) it allows opponents to claim that gay people are seeking “special rights,” and (3) it divides instead of unifying. He prefers to see the issue as one of equality for all. Ultimately, rather than go via the route of equal protection or of fundamental rights, Gerstmann propose a hybrid theory: that certain rights are so fundamental that they should be granted equally. He says that government can grant equal marriage rights without making a moral pronouncement on the rightness or wrongness of homosexuality; after all, he states, courts grant gays the same free speech rights as anyone else, but it does so without making a moral judgment one way or another. The same is true of marriage.

It’s a slim book, but he covers lots of ground: whether courts should rule on the basis of unenumerated rights, how to decide what these are and aren’t, and whether it is pragmatic for courts to do so when there is great public opposition. He discusses the fundamental right to marry as it relates to polygamy and incest and makes some very interesting points; he states that we should not outlaw practices just because they seem disturbing to us, but rather that we should decide what our policy goals are and then make laws that further those goals.

I’m not really doing the book justice. It’s very clearly thought out. A good read.