Epstein on "Gay Marriage and the Libertarian’s Dilemma"

Gay Marriage and the Libertarian’s Dilemma
Richard A. Epstein
Defining Ideas
March 22, 2013

In what will surely be the two most closely watched cases of the 2012-2013 term, the Supreme Court must answer a question that no one would have dared to ask a generation ago: Do the restrictions on gay marriage at the state and federal level violate the United States Constitution?

In Hollingsworth v. Perry, the target of attack is California’s Proposition 8, approved by popular referendum, which adopts the definition of marriage “as the union of one man and one woman.” Critics argue that Prop 8 violates both the Due Process and the Equal Protection Clauses of the Fourteenth Amendment: “nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

At issue in the companion case of United States v. Windsor is the Defense of Marriage Act, or DOMA, which was passed in both houses of Congress by comfortable margins in 1996. Its key provisions were intended as an artful compromise that allowed those states that wished to do so to adopt gay marriage laws. Yet, at the same time, DOMA contained two provisions that have raised hackles ever since.

Richard A. Epstein