On June 26, the United States Supreme Court held in Obergefell v. Hodges that the Fourteenth Amendment requires all fifty states to license same-sex marriages. 

The ruling was not a surprise to most modern-day prognosticators. However, the state of the law—and of American society—was very different in 1973, when the Journal published a student Note entitled The Legality of Homosexual Marriage. The Note responds to Baker v. Nelson, a 1971 case in which the Supreme Court dismissed a same-sex couple’s appeal “for want of a substantial federal question.” The piece argues that the couple’s Equal Protection-based claim to a marriage license was “far from frivolous,” and quite possibly meritorious.

Equal Protection doctrine has changed significantly since 1973, including in its application to LGBT rights, and the Note anticipates an Equal Rights Amendment that was never ratified. Nevertheless, the piece presciently touches on several of the legal arguments upon which the Court ultimately relied in Obergefell. We believe that this YLJ Note is among the first pieces of legal scholarship to lay out the case for same-sex marriage.

To read the full piece, please click here.

Preferred Citation: Note, The Legality of Homosexual Marriage, 82 Yale L.J. 573 (1973).