Marriage, Domestic Partnership, and the Future of "Separate But Equal"

Goldberg, Suzanne B.

Since Brown v. Board of Education, constitutional challenges to “separate but equal” rules have arisen in a variety of additional contexts, and courts have continued to look to “facts” and “modern research” about the separately treated group or issue to reach their decisions. Today, one cutting-edge location for studying how social change may reshape “natural” differences into legally intolerable classifications is in the roiling conflict over whether same-sex couples should be recognized via marriage or civil unions (or domestic partnerships, as the status is known in some states). As in the early race and sex discrimination cases, many courts (and elected officials) have studiously avoided addressing the implications of the “separate but equal” relationship-recognition rules they are being asked to evaluate.


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More About This Work

Academic Units
Columbia Law School
Published Here
October 21, 2015


This is essay is located in the book Sesquicentennial Essays of the Faculty of Columbia Law School (2008) which is available in the Columbia University's Law Library. Several of the ideas discussed here are developed at greater length in Suzanne B. Goldberg, Constitutional Tipping Points: Civil Rights, Social Change, and Fact-Based Adjudication, 106 Colum. L. Rev. 1955 (2006). Additional information regarding the status of the marriage and domestic partnership developments discussed here can be found in Suzanne B. Goldberg, And Justice For All? Litigation, Politics, and the State of Marriage Equality Today, 1 Advance 33 (Spring 2007).