ABSTRACT
This chapter evaluates three possible lines of Supreme Court reasoning, each of which might support a Fourteenth Amendment right to same-sex marriage: substantive due process; heightened scrutiny equal protection; rational basis equal protection coupled with a finding of illicit "animus." The substantive due process argument for same-sex marriage builds upon a line of cases beginning with the Supreme Court's 1965 decision in Griswold v. Connecticut. In these cases, relying mainly on the Due Process Clause, the Court has recognized a number of unenumerated constitutional rights, including the right to conventional marriage and the right of adults, including homosexuals, to engage in consensual sexual conduct. The chapter proposes a constitutional right to same-sex marriage will emerge, and properly so, when the Supreme Court determines that justice so requires and when that determination is sufficiently supported by evolving national values that the Court's recognition of this right "will—in time, but in a rather immediate foreseeable future—gain general assent.
