- Apr 28, 2011
- Reaction score
- In a Republic, actually
Laurence H. Tribe
Posted Friday, August 26th, 2011 2:41 pm
The case for same-sex marriage follows directly from Lawrences potent recognition of the right to dignity and equal respect for all couples involved in intimate relationships, regardless of the sex of each individuals chosen partner. Sounding in the constitutional registers of due process and equal protection, Lawrence sought to secure a fundamental and yet fragile dignity interest whose boundaries necessarily extend far beyond the bedroom door. Notwithstanding a few half-hearted qualifications that Justice Scalia quite rightly dismissed as inconsistent with its underlying reasoning and as trivial barriers to same-sex marriage rights, Lawrence is thus incompatible with state and federal laws that refuse two men or two women the full tangible and symbolic benefits of civil marriage.
Laws that limit these benefits to opposite-sex couples will, I suspect, come to be viewed as an anachronism that just barely survived the twentieth century and collapsed under the weight of their striking inconsistency with evolving public consensus, advances in civil rights, and core constitutional principles. Just as we now look back on Loving and celebrate its teaching that the fundamental right to marry transcends boundaries of race that once seemed obvious and essential, so too should the restriction of marriage to opposite-sex couples be recognized as jarringly out of sync with the respect for dignity that Lawrence articulated so memorably. Whether conceptualized as a fundamental right to marriage steeped in traditions of liberty, or as an embrace of equality that refuses to discriminate against opposite-sex couples on grounds of sex and sexuality, same-sex marriage rights are firmly grounded in the Constitution. The time has come for the Court to recognize this fact.
Other arguments, shorn of their rhetorical focus on harm to the institution of marriage and their pseudo-scientific claims about the supposedly essential characteristics of each sex, consist of little more than expressions of moral disapproval of homosexuality and of same-sex couples. In addition to the obvious barriers that such arguments face including the Courts rejection in Romer v. Evans of animus as the justification for discrimination on the basis of sexual orientation, and Judge Vaughn R. Walkers devastatingly thorough rejection of the empirical evidence that purports to render these claims scientifically credible Lawrence also stands as an imposing hurdle. Justice Kennedy did indeed speak of demeaning those who are married, but his opinion said nothing of the supposed harm to marriage that would follow from its extension to same-sex couples. Rather, he emphasized that it would demean a married couple were it to be said marriage is simply about the right to have sexual intercourse. By thus invoking the essential role that intimacy and love play in marriage as an institution that is simultaneously private in its personal significance and public in the face it presents to the world, Justice Kennedy pointed beyond purely sexual intimacy to the dignitary concerns that Lawrence safeguards and that are squarely implicated in the case for same-sex marriage. Just as morally rooted hostility to homosexuals flunked constitutional scrutiny in Lawrence even when dressed up in scientific studies that purported to show the health risks or social harms wrought by same-sex sexual relations, so should such hostility be disapproved by the Court as a permissible basis for ongoing discrimination in the domain of marriage rights.
More at the link:
The constitutional inevitability of same-sex marriage : SCOTUSblog