Abstract:

Proponents of gay marriage have long argued that laws banning the practice violate the Due Process and Equal Protection Clauses of the United States Constitution and their counterparts in state constitutions. They contend that same-sex couples have the same fundamental right to marry as heterosexual couples, and that states have no rational basis for prohibiting marriages between members of the same sex. This Note puts forward a theory of marriage that undermines both arguments. It asserts that a central function of marriage is to establish paternity. The Note surveys the writings of philosophers, scholars, and jurists from Aristotle to Blackstone, together with the work of modern evolutionary biologists, to show how all characterize marriage as a means of identifying fathers and assigning them parental responsibilities. In the days before DNA testing, monogamy was the only reliable way of determining paternal identity. This fact profoundly shaped the institution of marriage from antiquity up to the present, giving rise to a modern marital presumption of paternity that only makes sense in the context of heterosexual marriage. The Note goes on to examine the paternity establishment theory in light of Perry v. Schwarzenegger, concluding that the theory provides better support for “Prop 8” than the arguments advanced by defense counsel in that case.