Friday, February 14, 2014
As MOJ readers know, the magisterium of the Roman Catholic Church is morally opposed both to capital punishment and to granting access to civil marriage to same-sex couples. I have recently argued, in my new book and elsewhere, that the two practices—capital punishment and excluding same-sex couples from civil marriage—violate the constitutional law of the United States (here, here, and here). Of course, any argument about the constitutionality of capital punishment or of excluding same-sex couples from civil marriage (or of any other law or public policy) necessarily relies on a particular understanding of how the judiciary should go about determining (1) whether a right claimed to be a constitutional right has constitutional status and, if so, (2) whether the challenged government action violates the right. What understanding do my arguments rely on—my arguments about capital punishment and same-sex marriage? I address that question in a new paper—a “working paper”—that I have just posted to SSRN. Some MOJ readers may be interested. The abstract of and a link to the paper are available here.