Tuesday, August 30, 2011
Lawrence Tribe says yes:
The case for same-sex marriage follows directly from Lawrence’s potent recognition of the right to dignity and equal respect for all couples involved in intimate relationships, regardless of the sex of each individual’s chosen partner. Sounding in the constitutional registers of due process and equal protection, Lawrence sought to secure a fundamental and yet fragile dignity interest whose boundaries necessarily extend far beyond the bedroom door. Notwithstanding a few half-hearted qualifications that Justice Scalia quite rightly dismissed as inconsistent with its underlying reasoning and as trivial barriers to same-sex marriage rights, Lawrence is thus incompatible with state and federal laws that refuse two men or two women the full tangible and symbolic benefits of civil marriage.
He may be right, though I still think that there is potential ground on which courts can choose to distinguish between the liberty interest presented by intensely private conduct (Lawrence) and more "public" child-rearing relationships (marriage). The "child-rearing" nature of marriage and the empirical basis for preferring the child-rearing facilitated by traditional marriage versus same-sex marriage present their own disputed questions, of course.