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Current News and Features

June 29, 2015

Analysis of Same Sex Marriage

Below are some articles analyzing the Supreme Court’s same sex marriage decision. The first two discuss religious liberty concerns. The third one is a defense of the majority decision. I was disappointed in Professor Dorf’s column, because I was hoping to read something that would actually provide a substantive critique of the dissents. I found the dissents compelling, legally, and when I read such a weak critique, it doesn’t increase my respect for the legal foundation of the majority decision. I will continue to look for an analysis that demonstrates why the court’s decision is legally sound. Whether it is good policy, or not, many have strong opinions about. One of the dissents discussed at great length the historic meaning of the term “liberty,” as that term appears in the fifth and fourteenth amendments, protecting life, liberty and property , requiring due process of law. Liberty means freedom from governmental restraint. At least it did. Now, it appears to mean freedom to obtain government benefits, such as the tax advantages of marriage. There are many benefits people might like to have, as a constitutional right, provided by the government. At least Professor Smith, in the fourth item below, clearly explains why he thinks the court’s analysis is spot on: because it utilizes equal protection doctrine to expand the rights of a group historically discriminated against. What I find ironic is his invocation of Windsor, in which the court held that marriage was the province of the states, and that’s why the Federal DOMA was struck down. Forgive me if I see a bit of an analytical shell game here. READ MORE