The Great Divorce: The Separation of Equality and Democracy in Contemporary Marriage Jurisprudence

Southern California Review of Law and Social Justice, Vol. 19, No. 1, p. 89, 2009

58 Pages Posted: 21 Oct 2010

Date Written: November 1, 2009

Abstract

Across the country, marriage litigation by same-sex couples has raised important questions about the meaning of equality and the proper role of courts in a democracy. Many view these cases as a contest between democracy and individual rights. My primary purpose in this Article is to reframe this debate. Rather than seeing marriage litigation by same-sex couples as a conflict between democracy and individual rights, I argue that we should see these cases as a powerful demand for democratic inclusion. By claiming the freedom to marry, lesbian, gay, bisexual, and transgender people are seeking to be treated as fully equal, respected, and participating members of society. Thus, even when they lose, they are realigning both their own sense of identity and the nation’s sense of who they are.

Keywords: democracy, equality, judicial review, minimalism, backlash, marriage, sexual orientation, strict scrutiny, same-sex marriage

Suggested Citation

Minter, Shannon Price, The Great Divorce: The Separation of Equality and Democracy in Contemporary Marriage Jurisprudence (November 1, 2009). Southern California Review of Law and Social Justice, Vol. 19, No. 1, p. 89, 2009. Available at SSRN: https://ssrn.com/abstract=1694664

Shannon Price Minter (Contact Author)

National Center for Lesbian Rights ( email )

870 Market Street Suite 370
San Francisco, CA 94102
United States

HOME PAGE: http://www.nclrights.org

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