Law & Same-Sex Marriage

Philosophy of Law

Raymond Ngu

The Morality of SSM

What is morality? Fuller (1958): often unclear definition Taken from religious texts

If the morality in question does arise from religion… (DeLaet & Caufield 2008) First Amendment

Neutrality principle Free exercise of religion

Heterogeneity of Religious Responses (Rudy 1997)

Constitutionality

Amending the Constitution Lyons, Scalia & Dworkin

Fourteenth Amendment Equal Protection Clause Romer v. Evans (1996) Lawrence v. Texas (2003) Goodridge v. Department of Public Health (2003)

Paternalism

Mill (1971) on paternalism Definite harm results directly from the action is more than the

violation of a moral rule or the manifestation of a moral wrong It has to be harm to others

Hart (1955) on Natural Rights “At liberty to do any action which is not one…designed to

injure other persons.”

Is there a natural right to marriage? Does SSM cause harm to others? To the institution? The Deinstitutionalization of Marriage (Cherlin 2004)