David C. Baum Memorial Lecture: Why Excluding Same-Sex Couples from Civil Marriage Violates the Constitutional Law of the United States

Abstract

Although the Supreme Court’s ruling in United States v. Windsor (2013) was correct, the majority opinion (per Justice Kennedy) was confused and confusing. Moreover, the majority opinion was gratuitously insulting to many who oppose the legalization of same-sex marriage. Predictably, Justice Scalia, in his dissenting opinion, used the majority’s insulting opinion to good rhetorical effect.

In this lecture, which I delivered at the University of Illinois College of Law, in November 2013, as the David C. Baum Memorial Lecture on Civil Liberties and Civil Rights, I explain why the exclusion policy — excluding same-sex couples from civil marriage — violates the constitutional law of the United States. I argue, in the lecture, that the exclusion policy violates not the right to equal protection but, instead, a different constitutional right.

I hope that readers interested in evaluating my argument in this lecture will read an essay that this lecture references and on which my argument in the lecture relies: Michael J. Perry, “Freedom of Conscience as Religious and Moral Freedom,” Journal of Law and Religion (forthcoming, 2014), available at http://ssrn.com/abstract= 2287436. That essay is a modestly revised version of a chapter in my new book, Human Rights in the Constitutional Law of the United States (2013), the introduction to which is available at http://ssrn.com/abstract= 2291173.