- Apr 28, 2011
- Reaction score
- In a Republic, actually
In a diverse society like ours, constitutional principles used to invalidate state or federal laws should, as far as possible, be those that people of very different views can accept. While our diversity is indeed a strength, it is also a challenge. The structure of our government best respects this diversity when the constitutional principles used to structure our relationships are ones that people with very different views could each adopt. This traditional liberal approach animates the religion clauses of the Constitution, as well as recognition of some of our most cherished fundamental rights, like the right to free speech. Thus, the Supreme Courts decisions holding that the Constitution protects or requires X should aim to rely on principles of this kind.
For this reason, equal protection provides a better framework, normatively and constitutionally, to approach the issue of same-sex marriage. Because a due process approach requires a court to define marriage and thus enshrine one constitutionally acceptable view of an institution that people view in significantly different ways, the courts decision rests on principles that we cannot fairly expect people with different views to accept. By contrast, equal protection analysis deploys a thinner principle: that the state must treat everyone with equal concern and respect. While people will disagree about whether this principle is or is not violated by Proposition 8, this part of a courts ruling is merely its interpretation of the best way to read or understand the California law, not a statement of constitutional principle. The principle on which an equal protection approach relies is one that we can ask reasonable people with very different religious, ethnic or moral values to accept: namely that the state should treat each of us with equal respect.
Full text at the link:
Marriage equality: A question of equality rather than liberty : SCOTUSblog