Document Type

On the Record...

Publication Date



Civil Rights

Subject Category

Constitutional Law | Law


In January 2006, this Journal published an article that set forth the social institutional argument for man/woman marriage, demonstrated how that argument is a sufficient response to all constitutional attacks leveled at the laws sustaining that social institution, and detailed how the courts mandating genderless marriage (and the dissenting judges favoring that result) had elided the argument (“the Judicial Elision article”). Since the Judicial Elision article’s early December 2005 cut-off date, two more instances of judicial elision of social institutional realities have cropped up in New York. Both are dissenting opinions, one in the Appellate Division and one in the Court of Appeals. Because those dissenting opinions are interesting, and engagement with them intellectually productive, this article critically examines both. In preparation for doing so, and as an aid to the reader, this article also summarizes central aspects of the social institutional argument as set forth in the Judicial Elision article.


Republished as: Genderless Marriage, Institutional Realities, and Judicial Elision, 1 Duke Journal of Constitutional Law & Public Policy 1-78 (2006).