Litigating Same-Sex Marriage: Might the Courts Actually Be Bastions of Rationality?

The great political philosopher John Stuart Mill once asked, “Was there any domination which did not appear natural to those that possessed it?” (Mill 1984, 269–270). For same-sex couples seeking access to the institution of marriage, the public sense that marriage is naturally and obviously meant only for opposite-sex couples has been a formidable barrier. The first state supreme courts to rule on same-sex marriage, in the early 1970s, simply relied upon dictionary definitions to hold that marriage was obviously a heterosexual institution. ¹ Politicians mostly ignored the issue altogether until the courts of Hawaii, Vermont, and Massachusetts forced public debate of the issue.