Book contents
- Frontmatter
- Contents
- Acknowledgments
- Preface to the Second Edition
- PART I THE CHALLENGE OF SAME-SEX MARRIAGE
- PART II MARRIAGE AS A FUNDAMENTAL CONSTITUTIONAL RIGHT
- PART III RIGHTS AND EQUALITY
- PART IV RIGHTS IN A DEMOCRATIC SOCIETY
- 8 Democracy, Neutrality, and Consistency of Principle
- 9 Principles and Practicalities
- Bibliography
- Index
9 - Principles and Practicalities
Published online by Cambridge University Press: 05 September 2012
- Frontmatter
- Contents
- Acknowledgments
- Preface to the Second Edition
- PART I THE CHALLENGE OF SAME-SEX MARRIAGE
- PART II MARRIAGE AS A FUNDAMENTAL CONSTITUTIONAL RIGHT
- PART III RIGHTS AND EQUALITY
- PART IV RIGHTS IN A DEMOCRATIC SOCIETY
- 8 Democracy, Neutrality, and Consistency of Principle
- 9 Principles and Practicalities
- Bibliography
- Index
Summary
We have seen so far that there is a powerful rights-based argument for same-sex marriage, and that enforcing such a right would be well within the Court's proper role in a constitutional democracy. There is still one more issue to address. Is it really possible for the Supreme Court, which lacks “sword” and “purse,” to alter a basic institution such as marriage in the face of public opposition? Many have suggested that it is not. Whittington notes that “rights theories are particularly prone to abstractions that do not give adequate weight to actual political settlements.” Posner warns:
An overwhelming majority of the American people are strongly opposed to it…. A complex and by no means airtight line of argument would be necessary plausibly to derive a right to homosexual marriage from the text of the Constitution and the cases interpreting that text – a tightrope act that without a net constituted by some support in public opinion is too perilous for the courts to attempt. Public opinion may change … but at present it is too firmly against same-sex marriage for the courts to act.
In a similar vein, Cass Sunstein says that the Court should stay away from same-sex marriage on prudential grounds:
Suppose, for example, that the ban on same-sex marriage is challenged on equal protection grounds. Here, ongoing judicial supervision of complex institutions is not really at issue. Nonetheless, there is reason for great caution on the part of the courts. An immediate judicial vindication of the principle could well jeopardize important interests. […]
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- Chapter
- Information
- Same-Sex Marriage and the Constitution , pp. 196 - 214Publisher: Cambridge University PressPrint publication year: 2008