Litigating Same-Sex Marriage: Might the Courts Actually Be Bastions of Rationality?

The great political philosopher John Stuart Mill once asked, “Was there any domination which did not appear natural to those that possessed it?” (Mill 1984, 269–270). For same-sex couples seeking access to the institution of marriage, the public sense that marriage is naturally and obviously meant only for opposite-sex couples has been a formidable barrier. The first state supreme courts to rule on same-sex marriage, in the early 1970s, simply relied upon dictionary definitions to hold that marriage was obviously a heterosexual institution.1 Politicians mostly ignored the issue altogether until the courts of Hawaii, Vermont, and Massachusetts forced public debate of the issue

The Many Faces of Strict Scrutiny: How the Supreme Court Changes the Rules in Race Cases

In this paper, we argue that there is no single test called strict scrutiny when the Court considers claims of racial discrimination. In fact, the Court changes the rules depending on why and how the government is using race. By examining racial redistricting, remedial affirmative action, and diversitybased affirmative action cases, we show how the Court uses at least three very different versions of strict scrutiny. The costs of maintaining the fiction of unitary strict scrutiny is high. In the area of racial profiling, for example, courts refuse to apply strict scrutiny for fear that it will either overly hamper police or will weaken strict scrutiny in other areas of racial discrimination. An open acknowledgment that the Court is already using different standards of analysis for different types of racial discrimination would allow courts to craft appropriate standards without fear of diminishing protections in other areas

Down the Slippery Slope? Does the Fundamental Right to Marry Protect Polygamous Marriage?

Reviewing: RONALD C. DEN OTTER, IN DEFENSE OF PLURAL MARRIAGE, (CAMBRIDGE UNIVERSITY PRESS 2015); STEPHEN MACEDO, JUST MARRIED: SAME-SEX COUPLES, MONOGAMY, & THE FUTURE OF MARRIAGE, (PRINCETON UNIVERSITY PRESS 2015); JOHN WITTE JR., THE WESTERN CASE FOR MONOGAMY OVER POLYGAMY (CAMBRIDGE STUDIES IN LAW AND CHRISTIANITY 2015)