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Dunson on Gender Blind Marriage

By Lawrence Solum

Daniel Dunson (Sullivan & Cromwell) has posted A Right to a Word? The Interplay of Equal Protection and Freedom of Thought in the Move to Gender-Blind Marriage (Albany Government Law Review, Vol. 5, No. 2, 2012) on SSRN. Here is the abstract:

This article analyzes whether marriage-equivalent legal recognition of same-sex couples must be officially designated ?marriage.? To many of us, opening civil marriage to same-sex couples seems so obviously the best result, there is great temptation to become convinced it is constitutionally required. This article argues that, for reasons heretofore virtually ignored by proponents of court-ordered gender-blind marriage, the tempting conclusion is analytically unsound and sets a troubling precedent for regulating the content of speech and thought.

Same-sex and different-sex relationships are identical in many respects and different in other respects. None of these differences justifies affording different rights, but whether objectively distinguishable combinations must bear the same official designation does not concern couples? rights, but rather a social connotation.

The concept of a right to esteem or approbation is not coherent. Social stature comprises the thoughts of people in the community. Equal protection of the laws requires equal rights that allow people to be who they are and live as they choose, but not equal social stature, which requires others to think of them in certain ways.

Distinct sexual combinations are not different enough to be denied equal legal rights and protections, but there are rational bases for believing they are different enough to be called by different names. Although we may not favor this way of thinking, we should not interpret the Constitution to require people to establish that their thoughts on sex and human relationships are related to a state interest.

To protect personal liberty and maintain democratic legitimacy, we have drawn (albeit without uniform clarity) a crucial line between prohibiting conduct and prohibiting speech. For the same reasons, we should draw a line between court orders protecting legal rights (regulating conduct) and orders prescribing speech.

Full post as published by Legal Theory Blog on June 29, 2012 (boomark / email).