Same-Sex Marriage, Second-Class Citizenship, and Law’s Social Meanings

Abstract

Government acts, statements, and symbols that carry the social meaning of second-class citizenship may, as a consequence of that fact, violate the Establishment Clause or the constitutional requirement of equal protection. Yet social meaning is often contested. Do laws permitting same-sex couples to form civil unions but not to enter "marriages" convey the social meaning that gays and lesbians are second-class citizens, as some courts have held? Do official displays of the Confederate battle flag unconstitutionally convey support for slavery and white supremacy? Different audiences reach different conclusions about the meaning of these and other contested statements and symbols. Accordingly, to implement the existing cross-ideological consensus that the Constitution forbids at least some government acts, statements, and symbols that convey the social meaning of second-class citizenship, one needs some method for selecting the relevant audience. No method is perfect, but this Article tentatively advances a "reasonable victim" perspective as the presumptive starting point for constitutional analysis.