Gay Sex and Marriage, the Reciprocal Disadvantage Problem, and the Crisis in Liberal Constitutional Theory

Abstract

There is nothing unusual about constitutional controversy, but some disagreements, typified by the argument over constitutional protection for gay sex and marriage, go beyond ordinary differences of opinion. Some opponents of constitutional protection for gay rights think that their adversaries are not just wrong, but have exceeded the bounds of respectable constitutional argument. They want to turn the defense of gay constitutional rights into a position that dare not speak its name.

In this brief essay, I do not take a strong stand on whether the constitutional case for gay rights has been made out. Instead, I attempt to explain why these opponents are wrong to think that the case for gay rights is outside the range of reasonable constitutional argument and to speculate about why they nonetheless hold this view. While it is true that constitutional protection for gay rights depends upon contestable moral judgments, the failure to protect these rights also rests on such judgments. The argument that courts should not take a side in the "culture war" is therefore a wash. Conservatives are nonetheless eager to discredit the argument for gay rights because the failure to do so would challenge core assumptions of standard constitutional theory.

Keywords: marriage, gay rights, liberal constitutionalism, Scalia, morality, sex, equal protection