Abstract

Gay rights advocates and social conservatives alike have criticized the Supreme Court for its recent decisions concerning sexual orientation. An examination of those decisions reveals that, taken together, they represent a surprisingly careful balance. The result is a principle of neutrality in which the Court has effectively demanded that states refrain from taking either side in the culture war surrounding sexual orientation. The true test of that neutrality principle will arise when the Court considers the constitutionality of a same-sex marriage ban. Thus far, challenges have taken place in state courts under state constitutions; those judges appear to have been guided by their own assumptions and values rather than the Supreme Court's balanced approach. The federal challenge in Perry v. Schwarzenegger may change the legal landscape. The district court ordered a full trial the first court to do so and held, based on the evidence, that the state constitutional amendment violated the U.S. Constitution because it served only to disapprove of gay persons and their relationships. This August 2010 decision provides an excellent application of the Supreme Court's state-neutrality principle and will offer the Court the chance to weigh in on same-sex marriage.

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