Marriage Equality: An Idea Whose Time Is Coming . . .


How ought the U.S. Supreme Court decide the appeal in the Proposition 8 Case, Hollingsworth v. Perry? Does the state’s reinstatement of the exclusion of lesbian and gay couples from civil marriage violate the Equal Protection Clause? As I have long argued, the most principled understanding of the clause’s text, original purpose, and precedents requires states to afford committed lesbian and gay couples equal marriage rights. In an ideal world, where principled constitutionalism holds sway, even where unpopular or contrary to the personal preferences of Supreme Court Justices, the exclusion of lesbian and gay couples from civil marriage would fall.

But the world we live in is one of great normative heterogeneity, and the United States, even in 2013, is a country whose citizens remain intensely divided with regard to marriage equality. Until there is greater consensus, the Court ought to avoid any broad pronouncements on the merits of plaintiffs’ claim that denying marriage equality to lesbian and gay couples violates the Fourteenth Amendment. In Perry, the Court’s best course of action would have been to deny the certiorari petition altogether. If the Court reaches the merits of the Equal Protection claim, the Justices ought to affirm the lower court decision based upon its precedent in Romer v. Evans.

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