Same-Sex Unions and the Fourteenth Amendment

Michael Scaperlanda and some other MOJ-afficianados may be interested in this paper, which I just posted to SSRN.  To download/print/read, click here.

     

The Fourteenth Amendment, Same-Sex Unions, and the Supreme Court
MICHAEL J. PERRY Emory University School of Law         Loyola University Chicago Law Journal, Vol. 38, p. 101, 2006

ABSTRACT:

On March 31, 2006, I was privileged to deliver the Keynote Address at the Symposium on "The Legal and Constitutional Issues Presented by Same-Sex Relationships," sponsored by the Loyola University Chicago Law Journal. This Essay, which is forthcoming in the Loyola University Chicago Law Journal, was the basis of my Keynote Address and draws on material in my new book, Toward a Theory of Human Rights: Religion, Law, Courts (Cambridge University Press, 2007). I explain in this Essay why I conclude that the Fourteenth Amendment requires states to recognize, by extending the benefit of law to, same-sex unions. (I am inclined to think that we are all "originalists" now; in any event, my explanation presupposes an originalist conception of constitutional interpretation.) I also explain, however, why my conclusion does not entail that the Supreme Court should rule that states are required to recognize same-sex unions. Along the way, I suggest that it would be much more problematic for the Court, in the name of the Fourteenth Amendment, to require states to recognize same-sex unions than it was for the Court in 1967, in Loving v. Virginia, to require states to recognize interracial marriages.

This Essay is part of a larger project, the point of departure of which is the following: Whether a law (or other policy) is unconstitutional is one question; whether the Supreme Court (in an appropriate case) should rule that the law is unconstitutional is a different question. Contemporary constitutional theorists are virtually unanimous in ignoring the analytic space between the two questions. That a law is unconstitutional does not entail that the Supreme Court should rule that the law is unconstitutional.