David Cole, writing for the New York Review of Books, looks at several books on the same-sex marriage debate. Among them is Cambridge author Evan Gerstmann’s Same Sex Marriage and the Constitution. Gerstmann is a constitutional scholar at Loyola Marymount.
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The third principal justification advanced for denying marriage to same-sex couples asserts that homosexual sex is immoral, and that the state has a legitimate interest in withholding its imprimatur from conduct that society deems immoral. Some courts and gay rights advocates respond by reasoning that, like “tradition,” “moral disapproval” standing alone is simply an insufficient justification for discrimination. In support of this proposition, they cite Lawrence v. Texas, the 2003 Supreme Court decision that declared unconstitutional a criminal law prohibiting homosexual sodomy. The Court in Lawrence reasoned that at least with respect to consensual sexual relations among adults, “the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice.” As Professor Evan Gerstmann of Loyola–Marymount College notes in Same-Sex Marriage and the Constitution, the Lawrence decision “arguably undercuts one of the best known reasons for banning same-sex marriage: moral disapproval of gay and lesbian relationships.”
But Gerstmann uses the word “arguably” advisedly. The court in Lawrence took pains to note that whether the state could preserve marriage for opposite-sex couples was a different question.