A central point of contention in the debate over same-sex marriage is the importance of preserving tradition. The Article on which this post is based evaluates the role of tradition as a justification for laws challenged on equal protection grounds, focusing on laws that limit marriage to opposite-sex couples.1 The Article makes two main points. First, a state’s interest in preserving tradition, including the tradition of opposite-sex marriage, is probably sufficiently legitimate to survive the most deferential standard of rational basis scrutiny under the Equal Protection Clause. Second, although preserving tradition is not illegitimate per se, courts should nonetheless view tradition as a suspicious justification. Features of tradition that counsel skepticism include its speculative utility, rhetorical appeal, and manipulability. Additionally, tradition is especially suspicious when offered to justify laws that burden a group toward whom there has been a cultural shift from widespread societal disapproval in the past to substantial public tolerance today. In such circumstances, tradition may serve opportunistically as a justification for people who are actually motivated by now-repudiated attitudes toward the burdened group. For bans on same-sex marriage, courts should invalidate such laws unless, after careful scrutiny, courts are satisfied that the laws are motivated by legitimate, non-tradition-based interests.
For the over half-million people currently homeless in the United States, the U.S. Constitution has historically provided little help: it is strongly...
Gradualism should have won out in Dobbs v. Jackson Women’s Health, exerting gravitational influence on the majority and dissenters alike. In general...
Today, legal culture is shaped by One Big Question: should courts, particularly the US Supreme Court, have a lot of power? This question is affecting...
Constitutional review is the power of a body, usually a court, to assess whether law or government action complies with the constitution. Originating...
During times of crisis, governments often consider policies that may promote safety, but that would require overstepping constitutionally protected...
The United States has granted reparations for a variety of historical injustices, from imprisonment of Japanese Americans during the Second World War...
This Article develops a new way of understanding the law in order to address contemporary debates about judicial practice and reform. The...
In an era defined by partisan rifts and government gridlock, many celebrate the rare issues that prompt bipartisan consensus. But extreme consensus...
Working hand-in-hand with the private sector, largely in a regulatory vacuum, policing agencies at the federal, state, and local level are acquiring...
The decision in Students for Fair Admissions v. President and Fellows of Harvard [SFFA], invalidating the use of race in college admissions, reignites...
In New York State Rifle & Pistol Association v. Bruen, Justice Thomas’s majority opinion announced that the key to applying originalist methodology...
In Poland, Venezuela, Rwanda, and several other countries, governments have in the past years altered basic rules of their constitutional system to...
In Chile, many commentators, academics and political leaders have spent years arguing that the limited nature of the social rights in the national...
In our increasingly polarized society, claims that prosecutions are politically motivated, racially motivated, or just plain arbitrary are more common...
When federal judges are called on to adjudicate separation-of-powers disputes, they are not mere arbiters of the separation of powers. By resolving a...
Gender equality matters in the global public law academy for at least three reasons: the production of diverse scholarship, and substantive equality...