Document Type



Many of the states of the United States have statutes, constitutional provisions, and court decisions that deny individuals the right to have a family, specifically a spouse and children, based on sexual orientation.

Advocates have made a wide variety of arguments attacking such restrictions. Scholars and litigants frequently argue that such acts violate constitutional guarantees of equal protection or invade a constitutional right to privacy. However, such arguments are often defeated by counter arguments presented with religious, moral, and even emotional fervor.

This article presents and defends a new analytical framework based on liberty of contract to advance gay rights. The context explored in this article for this new paradigm is the area of gay rights to family. Thus, this article will begin in Part I by presenting a survey of the primary encroachments on the liberty of gay people to enter into formal arrangements to create a family. Part II of this article will discuss the Lochner decision and develop its potential for renewed application. Part II will also discuss the philosophy and history that led up to that decision and certain other decisions from that era. Finally, Part II will present critical analyses of the downfall of Lochner and its analytical framework. The goal of this part is to explain the meaning of the Lochnerian liberty of contract interest.

Part III will explain that many of the traditional criticisms of Lochner are unfounded and are currently being re-considered by scholars. Part III will admit to certain shortcomings of the traditional Lochner framework but will set forth more fully the modification to that framework outlined briefly a bove, making the framework more balanced and appropriate for use by modern courts. Part III will then apply that approach to gay rights to family, hypothesizing the results in each of the three main areas under inquiry here: rights to marry, adopt, and enter into surrogacy arrangements.

Finally, this article will conclude in part with a summary of what has been considered. It will then make some final remarks about the potential usefulness of a modified Lochnerian approach to liberty of contract, and thus to liberty itself.