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
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
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