In 1993, the Hawaii Supreme Court held in Baehr v. Lewin that same-sex couples denied the right to marry could state a claim for sex discrimination. With that decision, an argument that had previously been primarily a matter of academic debate was thrust into the center of one of the defining cultural wars of our time. Following Baehr, same-sex couples filed lawsuits in at least eleven states. In the past few years, the highest state courts in Vermont, Massachusetts, New Jersey, New York, and Washington, as well as intermediate courts in Arizona and Indiana, have ruled on the issue; as of May 2007, appeals are pending in the highest courts in California, Connecticut, and Maryland. Some suits have been won by plaintiffs, leading either to marriage (Massachusetts) or civil unions providing all of the benefits of marriage (New Jersey and Vermont). Others, largely in closely divided opinions, have been lost by plaintiffs (New York and Washington). But while sex discrimination has been argued by the plaintiffs in each of these cases, no state high court since Baehr has found that denying a same-sex couple the right to marry successfully states a sex discrimination claim. Rather, the subsequent decisions have either ignored or rejected sex discrimination arguments. Indeed-and most troubling-several of the more recent opinions rejecting same-sex couples' claims to the right to marry have actually relied in part on sex stereotypes, even as they reject arguments that such stereotypes are embodied in and perpetuated by exclusionary marriage laws. This Article considers the sex discrimination arguments in the context of the flurry of recent decisions issued by state courts and the arguments presented by parties and amici before those courts.
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