On Same-Sex Marriage, Civil Unions, and the Rule of Law: Constitutional Interpretation at the Crossroads

On Same-Sex Marriage, Civil Unions, and the Rule of Law: Constitutional Interpretation at the Crossroads

On Same-Sex Marriage, Civil Unions, and the Rule of Law: Constitutional Interpretation at the Crossroads

On Same-Sex Marriage, Civil Unions, and the Rule of Law: Constitutional Interpretation at the Crossroads

Synopsis

The United States Constitution has already been interpreted to provide a variety of family-related protections which, if applied consistently, also protect same-sex couples and their children. Only by radically reformulating and severely undermining existing protections can courts and commentators justify the claim that the Federal Constitution does not offer a wealth of family protections, including the right to marry a same-sex partner.

Discussing the constitutional implications of civil unions with a special focus on how they might be treated in the interstate context, Strasser explains how the courts and commentators have reworked and significantly weakened a variety of constitutional protections in their attempts to establish that same-sex couples are not afforded constitutional protections. He further suggests that the constitutional protections for religion support rather than undermine the constitutional protection of same-sex unions.

Excerpt

On April 26, 2000, Governor Dean of Vermont signed into law a civil union statute affording to qualifying same-sex couples all of the rights and benefits that the state affords to married couples. Reactions to this newly created status ranged from (1) disappointment that same-sex couples were not simply allowed to marry to (2) joy and exultation that same-sex couples could have their relationships legally recognized and that they would thereby be entitled to the same state benefits and protections that different-sex couples receive to (3) anger and disgust that same-sex couples would be permitted to enter into legally recognized relationships that seemed to have all of the benefits if not the name of marriage. This book examines the implications of the legal recognition and nonrecognition of civil unions in particular and of same-sex relationships more generally.

Part of the reason that the legal recognition of same-sex relationships is so hotly contested is that it implicates so many legal and non-legal issues: What should be done when individuals within a society have sharply differing moral visions? Which rights are constitutionally protected and which are subject to popular vote? What protections should exist when a couple with a legally recognized relationship in one state travels through or moves to another? What implications are there for the ideal of equal treatment under the law if same-sex relationships are not given legal recognition or if they are recognized in some jurisdictions but not others? The answers to these questions are not at all obvious, and these issues will likely be the source of a great deal of litigation during the next several years.

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