ABSTRACT
The United States Supreme Court is on the precipice of deciding whether same-sex couples have a constitutional right to marry. Relying heavily on state court decisions that preceded Windsor, this chapter explores the developing jurisprudence of marriage equality. As the chapter makes clear, Windsor, although short on precedent, contains a rich vein of ant subordination language that can be mined by those seeking to upend state defense of marriage laws. Both Windsor and Goodridge rely on the Supreme Court's two previous gay rights cases, Romer and Lawrence, but Goodridge enriches the discussion by citation to some of the Court's other relevant precedents; cases that went unmentioned in Windsor. The Supreme Court's jurisprudence of equality might uncharitably be called a mess, at least when it comes to the treatment of sexual orientation. Surprisingly, the Supreme Court has never directly answered the question whether sexual orientation discrimination should be judged under a heightened scrutiny standard.
