Perry on Same-Sex Unions and the Supreme Court

Michael Perry (Emory) has posted The Fourteenth Amendment, Same-Sex Unions, and the Supreme Court on SSRN. Here is the abstract:

On March 31, 2006, I was privileged to deliver the Keynote Address at the Symposium on "The Legal and Constitutional Issues Presented by Same-Sex Relationships," sponsored by the Loyola University Chicago Law Journal. This Essay, which is forthcoming in the Loyola University Chicago Law Journal, was the basis of my Keynote Address and draws on material in my new book, Toward a Theory of Human Rights: Religion, Law, Courts (Cambridge University Press, 2007). I explain in this Essay why I conclude that the Fourteenth Amendment requires states to recognize, by extending the benefit of law to, same-sex unions. (I am inclined to think that we are all "originalists" now; in any event, my explanation presupposes an originalist conception of constitutional interpretation.) I also explain, however, why my conclusion does not entail that the Supreme Court should rule that states are required to recognize same-sex unions. Along the way, I suggest that it would be much more problematic for the Court, in the name of the Fourteenth Amendment, to require states to recognize same-sex unions than it was for the Court in 1967, in Loving v. Virginia, to require states to recognize interracial marriages.

This Essay is part of a larger project, the point of departure of which is the following: Whether a law (or other policy) is unconstitutional is one question; whether the Supreme Court (in an appropriate case) should rule that the law is unconstitutional is a different question. Contemporary constitutional theorists are virtually unanimous in ignoring the analytic space between the two questions. That a law is unconstitutional does not entail that the Supreme Court should rule that the law is unconstitutional.

And a bit more:

Whether the Supreme Court should so rule, however, is a separate question. A state that wants to defend its refusal to recognize same-sex unions against a Fourteenth Amendment challenge must articulate a plausible (i.e., to the courts) and therefore nondemeaning rationale for its nonrecognition policy. Following Thayer,64 the question for each Supreme Court justice, in responding to that defense, is not whether in his/her judgment the rationale is true; rather, the question is whether in his/her judgment the rationale is plausible: a rationale that, in the Justice’s judgment, state legislators can plausibly accept (even if they can also plausibly reject the rationale).

Perry's argument takes into account what I have called the distinction between first and second order questions of law.  The first order question is "what does the 14th amendment require?"  The second order question is "whose judgment about the first order question is authoritative?"  Very interesting piece, and highly recommended.