Pamela S. Katz

This article, written by Pamela S. Katz, Assistant Professor of Legal Studies, The Sage Colleges, argues for the legalization of same-sex marriage under an analysis of substantive due process and equal protection jurisprudence. The author first considers the existing basis of the policy prohibiting same-sex marriage and the realities that argue for change. The author then argues that under substantive due process, there is a fundamental right to choose to marry a partner of the same sex and that the ban on same-sex marriage is a form of gender or, alternatively, sexual orientation discrimination that demands stricter scrutiny. The article concludes that even rational basis scrutiny cannot support the proffered state interests advanced in prohibiting same sex marriage.