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06/30/2013

David Upham and Greg Weiner: The Unconstitutionality of the New Marriage
Michael Ramsey

From a while back, but worth while -- At Liberty Law Blog, David Upham: The Child's Right to His Father and Mother: The Unconstitutionality of the New Marriage.  From the introduction:

To my knowledge, no one in the [same sex marriage] cases has argued that the Constitution might prohibit the state and federal governments from abandoning this traditional definition.

There is good reason, however, to conclude that in one critical respect, the Constitution prohibits the redefinition of marriage.

Greg Weiner objects: The Danger of Constitutionalizing Policy Disputes: A Response to David Upham.  From the conclusion:

And that raises what is, finally, the problem with the natural-law jurisprudence Upham thoughtfully defended in an earlier post. It inevitably empowers judges with a wide berth of discretion they are neither professionally trained nor institutionally disposed to handle responsibly or efficaciously. Among the general electorate, this escape to judges to resolve disputes neatly, cleanly, expeditiously and without public effort is ultimately a flight from political judgment, a seeking of protectors akin to—distantly, but still sharing political DNA with—the fetishization of the presidency in contemporary politics.

There has been, moreover, a suspicious tendency—there is no evidence, I would hastily add, with which to accuse Upham, nor do I—among advocates of natural-law jurisprudence for the conclusions they draw from it to align with conspicuous regularity with their policy proclivities. Yet before being seduced by natural-law jurisprudence, conservatives should not presume it will lead to conclusions they would endorse. (Equip a bevy of welfare-rights lawyers from the 1970s with a volume of Aquinas on natural law and charity and see what happens.) Those who sharpen this sword ought not to be surprised when it turns on them. If it is within the Supreme Court’s power to ban same-sex marriage, only the slenderest of reeds would support a complaint should judges require it instead.

Professor Upham responds and elaborates: The Equal Familial Rights of Gay Parents and Their Offspring: The [Limited] Unconstitutionality of the New Marriage, Part II.