Equal protection and same-sex marriage

Journal of Social Philosophy

Volumn 35, Issue 1, 2004, Pages 133-147

  Schaff, Kory ^a  

^a NONE

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[No Author keywords available]

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EID: 34247670424     PISSN: 00472786     EISSN: 14679833     Source Type: Journal    
DOI: 10.1111/j.1467-9833.2004.00221.x     Document Type: Article

References (39)

1. see my "Kant, Political Liberalism, and the Ethics of Same-Sex Relations", Journal of Social Philosophy 32, no. 3(Fall 2001):446-62.
2. Griswold v. Connecticut, 943.
3. All court citations are from Geoffrey Stone, Louis Seidman, Cass Sunstein, and Mark Tushnet (eds.), Constitutional Law, 3rd ed. (Boston: Little, Brown, 1996).
4. Zablocki v. Redhail, 1022.
5. Roe v. Wade, 957.
6. Bowers v. Hardwick, 1032.
7. see Stone et al., Constitutional Law, 954.
8. See Watkins v. U. S. Army (1990): "[At] a minimum, [the] Supreme Court is willing to treat a trait as effectively immutable if changing it would involve a great difficulty, such as requiring a major physical change or a traumatic change of identity" (768).
9. see John D'Emilio, Sexual Politics, Sexual Communities: The Making of a Homosexual Minority in the United States, 1940-1970, 2nd ed. (Chicago: University of Chicago Press, 1998).
10. see Richard Posner, Sex and Reason (Cambridge, MA: Harvard University Press, 1992), chap. 4;
11. Simon Le Vay, The Sexual Brain (Cambridge, MA: MIT Press, 1993). For the standard account of the genetics of homosexuality
12. see Dean Hamer, Stella Hum, Victoria Magnuson, Nan Hu, and Angela Pattatucci, "A Linkage between DNA Markers on the X Chromosome and Male Sexual Orientation", Science 261, no. 16(July 1993):321-27.
13. A review of recent findings can be found in David Fernbach, "Biology and Gay Identity", New Left Review 228(March/April 1998):47-66.
14. see Jon Hart Ely, Democracy and Distrust: A Theory of Judicial Review (Cambridge, MA: Harvard University Press, 1980), chaps. 4-6. Ely tries to show that courts in exercising judicial review are not (and should not be) involved in imposing value choices. Rather, Ely thinks that so-called noninterpretive review can be legitimate if "extra-constitutional" values are consistent with democratic principles, procedures, and goals. As a result, a distinction is to be made between courts' choosing outcomes and their reinforcing democratic procedures. This view is consistent with the argument I am making here, namely, that the protection of basic liberty interests for same-sex couples should not be viewed as giving them so-called special rights, but as including them in some liberty interest to which they have traditionally been denied access, especially by political decision-making processes.
15. the Court's opinion in NAACP v. Alabama can be found at 1743.
16. Loving v. Virginia, 636.
17. see Mark Strasser, Legally Wed: Same-Sex Marriage and the Constitution (Ithaca: Cornell University Press, 1997), 44-46.
18. See the Stanford Law report "Same-Sex Couples: Marriage, Families, and Children", available at 〉http://www.law.stanford.edu/faculty/ wald〈.
19. Strasser, Legally Wed, 154.
20. See her "What about the Children? Arguments against Lesbian and Gay Parenting", Women's Studies International Forum 24, no. 5(September/October 2001):555-70. It is interesting to note that the most common response is colored by religious attitudes toward homosexuals, and that concern about the children in such families is cited less frequently. This appears to be a clear case of social bigotry's informing people's attitudes about same-sex parenting.
21. Judith Stacey and Tim Biblarz", (How) Does the Sexual Orientation of Parents Matter?" American Sociological Review 66, no. 2(April 2001):159-83. The authors comprehensively reviewed findings over the past decade, noting that researchers frequently downplay differences of children with homosexual parents, but these do not adversely affect child development.
22. The evidence is also examined by Posner, Sex and Reason, 418-19.
23. These issues are also discussed in "A Rainbow of Differences in Gays' Children", New York Times, July 17, 2001, p. F1. For an interesting argument as to why same-sex couples provide a more just model for gendered division of labor
24. see Susan Moller Okin, "Sexual Orientation and Gender: Dichotomizing Differences", in Sex, Preference, and the Family, ed. David Estlund and Martha Nussbaum (Oxford: Oxford University Press, 1997): 44-59.
25. see Gerald Postema, "Public Practical Reason: Political Practice", in Theory and Practice, ed. Ian Shapiro and Judith Wagner De Cew (New York: New York University Press, 1995), 373-77;
26. ee Charles Larmore, The Morals of Modernity (Cambridge: Cambridge University Press, 1996), chaps. 6-7.
27. John Rawls, Political Liberalism (New York: Columbia University Press, 1993), 4.
28. For a critical discussion of the minimal moral conception involved here, see Larmore, Morals of Modernity, 155-63.
29. John Rawls, "The Idea of Public Reason Revisited", University of Chicago Law Review 64, no. 3(Summer 1997):765-807, at 766. It is interesting that Rawls provides a great deal of space to the role of the family as part of the basic structure in order to answer feminist critics of political liberalism, but he does not mention the democratic controversy of excluding nontraditional families, such as same-sex relations, from publicly accepted versions of the family (787-94).
30. See Robert Knight, "How Domestic Partnerships and 'Gay Marriage' Threaten the Family", Insight: A Bulletin of the Family Research Council (1997);
31. and John Finnis, "Law Morality, and 'Sexual Orientation, ' " Notre Dame Law Review 69, no. 5 (1994).
32. A critical reply to some of Finnis's views can be found in Martha Nussbaum, "Platonic Love and Colorado Law: The Relevance of Ancient Greek Norms to Modern Sexual Controversies", Sex and Social Justice (Oxford: Oxford University Press, 1999), 299-331
33. (abridged from longer version originally published in Virginia Law Review 80(1994):1515-1651).
34. Andrew Sullivan, Virtually Normal: An Argument about Homosexuality (New York: Vintage, 1995), chap. 3.
35. See Richard Mohr, "Black Law and Gay Law: Do Civil Rights Have a Future?" in Gay Ideas: Outing and Other Controversies (Boston: Beacon Press, 1992).
36. Rawls, "Idea of Public Reason Revisited", 770;
37. cf. Political Liberalism, 190-95. In "Idea of Public Reason Revisited", he argues, as well, that political discourse "aims for public justification", which means that no comprehensive doctrine can politically force others to accept institutions and policies based on unreasonable premises (786). Jürgen Habermas makes a similar argument in holding that "features of argumentation" can exclude contributions that attempt to exclude, coerce, or otherwise undermine the contribution of others.
38. See Habermas, The Theory of Communicative Action, vol. 1, trans. T. McCarthy (Cambridge: MIT Press, 1984), 22-42;
39. see also Habermas, "A Genealogical Analysis of the Cognitive Content of Morality", in The Inclusion of the Other: Studies in Political Theory, trans. C. Cronin and P. De Greiff (Cambridge: MIT Press, 1998), 43-44.