Tuesday, March 26, 2013

Cass Sunstein: Same-Sex Marriage Law Has Four Possible Paths - Bloomberg

Harvard Law prof and polymath Cass Sunstein sketches out four paths for the Supreme Court in the constitutional challenge to laws barring same-sex marriage. - GWC
Same-Sex Marriage Law Has Four Possible Paths - Bloomberg:

Football teams hate punting, and the same may be true of the court. Some of its members might be tempted to draw on another analogy that, while publicly obscure, is well-known among judges and constitutional specialists.
In its 1971 decision in Reed v. Reed -- its first serious effort to engage the problem of sex discrimination -- the court took the path of minimalism. Striking down an odd Iowa law that gave a preference to men over women as administrators of estates, the court declined to issue a broad pronouncement that would immediately threaten all discrimination on the basis of sex.
Instead it began a long series of case-by-case rulings -- accompanying, but not pre-empting, democratic judgments -- that ultimately produced strong safeguards against such discrimination.
With respect to same-sex marriage, the court might be able to adopt a similar approach. For example, the Justice Department has sketched some ways for the court to rule relatively narrowly, striking down the laws in question while avoiding the broadest pronouncement about marriage equality.

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