Untying the Knot: Marriage, the State, and the Case for Their Divorce

By Tamara Metz | Go to book overview

2
Confusion in the Courts

Judicial opinions may be thought of as societal exercises in something akin to what John Rawls calls “reflective equilibrium,” whereby guiding principles are tested and refined against each other and common practices and those practices tested and refined by guiding principles.1 In liberal democracies, one of the courts' jobs is to articulate the way that laws and policies square with the guiding principles of the regime.2 Judicial opinions thus offer clues about tensions between grounding principle and practice, and among the grounding principles themselves.

Given that the establishment of marriage is a central piece of American public policy, we would expect our jurists to provide robust if not always convincing defenses of the practice. In fact, they do not. Echoes of the stutters, aversions, and inconsistencies of the political debates with which we opened chapter 1 resound. As we shall see in this chapter, across a range of representative cases, American courts assume but do not defend the establishment of marriage. Jurists ply various reasons for this or that policy, court decision, new statute, or general approach to state regula-

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