Date of Completion

Spring 5-6-2012

Thesis Advisor(s)

Kimberly Bergendahl

Department

Political Science

Disciplines

Civil Rights and Discrimination | Constitutional Law | Law | Law and Society | Legal Theory

Abstract

Ambiguous terms and phrases in the United States Bill of Rights have caused a great deal of controversy throughout United States history over what rights truly exist and which branch of government should be responsible for determining those rights. These questions are currently being debated in states throughout the country concerning the right to same-sex marriage. This thesis answers these questions of legality and responsibility concerning the right to same-sex marriage. The thesis uses case law of the doctrinal development of the Equal Protection Clause and the right to privacy to suggest that the Equal Protection Clause provides the soundest legal precedent for the existence of the right to same-sex marriage because the government is not able to pass the rational basis test. Case studies of the legalization of same-sex marriage in Massachusetts, New York, and California are used to test Ronald Dworkin’s theory that the right should be developed by the courts rather than the legislatures. The thesis provides the theoretical groundwork that advocates of this right should focus on litigation rather than legislation to implement social change.