OUTLaw: Unhinging Same-Sex Marriage from the Constitutional Canon
This talk covers an analysis and response to the recent Supreme Court decision Windsor v. United States, in which the Court held the federal government’s refusal to recognize valid same-sex marriages was unconstitutional. The talk will closely scrutinize two of the dissenting opinions in Windsor and argue that dissents from Justice Alito and Justice Scalia in Windsor improperly interpret the Due Process Clause and misapply the fundamental rights doctrine.
The lecture will also examine the dissenters’ assertion that under the substantive due process doctrine, a separate inquiry is necessary to determine whether same-sex marriage itself is a distinct fundamental right deeply rooted in national tradition and history. This is a sharp deviation from precedent interpreting the freedom to marry. To highlight this, the talk will include an overview of prior cases concerning prisoners' right to marry and interracial couples’ right to marry. From this historical analysis, it can be said that Court has never assessed claims concerning the fundamental right to marry as narrowly as Justice Scalia and Justice Alito argue in Windsor.