A Perfectionist Argument for Legal Recognition of Polyamorous Relationships

2018 ◽  
Author(s):  
Ronald C. Den Otter
Keyword(s):  
Due Process ◽  
Equal Protection ◽  
Human Beings ◽  
Legal Recognition ◽  
Beliefs And Practices ◽  
Substantive Due Process ◽  
Constitutional Right ◽  
Liberal Approach ◽  
Plural Marriage

Although several American legal scholars have defended the constitutional right to marry more than one person at the same time on substantive due process or equal-protection grounds, few have underscored the possibility that plural marriage could be beneficial. The standard liberal approach eschews comparative judgments between monogamy and polyamory, ultimately depending on the value of the exercise of autonomy for its own sake. The problem is that those who employ it must remain reticent about the benefits that the legal recognition of polyamorous marriage may produce. In this chapter, I formulate an atypical constitutional argument for polyamorous marriage, drawing inspiration from John Stuart Mill’s well-known idea of experiments of living, rooted in the benefits of unconventional beliefs and practices. I try to explain why polyamory can be a superior marital arrangement for some people under some circumstances. Such marital experiments also may assist polyamorists in becoming better human beings.

Implying a Federal Constitutional Right to Education

2019 ◽  
pp. 135-163
Author(s):  
Derek W. Black
Keyword(s):  
United States ◽  
Due Process ◽  
The United States ◽  
United States Constitution ◽  
Equal Protection ◽  
Right To Education ◽  
Federal Constitutional ◽  
Substantive Due Process ◽  
Constitutional Right

In this chapter, Derek W. Black surveys the various litigation, judicial, and scholarly theories through which courts might recognize a right to education under the United States Constitution. He begins by sorting those theories into their major doctrinal categories and subcategories and explaining their basic arguments, including substantive due process, equal protection, privileges and immunities, citizenship, and originalism. Black then critically evaluates those theories, examining both the positives and negatives of the leading theories. He concludes that while a number of theories are plausible, scholarly theories have tended toward originalism in recent years and are the most likely to be successful before the courts.

scholarly journals Equal Access and the Right to Marry

2018 ◽  
Author(s):  
Nelson Tebbe ◽  
Deborah Widiss
Keyword(s):  
Due Process ◽  
Government Support ◽  
Equal Access ◽  
Equal Protection ◽  
University Of Pennsylvania ◽  
Sexual Intimacy ◽  
Family Structures ◽  
Civil Marriage ◽  
Constitutional Right ◽  
The Right

158 University of Pennsylvania Law Review 1375 (2010)How should courts think about the right to marry? This is a question of principle, of course, but it has also become a matter of litigation strategy for advocates challenging different-sex marriage requirements across the country. We contend that courts and commentators have largely overlooked the strongest argument in support of a constitutional right to marry. In our view, the right to marry is best conceptualized as a matter of equal access to government support and recognition and the doctrinal vehicle that most closely matches the structure of the right can be found in the fundamental interest branch of equal protection law. Two other arguments have dominated litigation and adjudication so far, but both of them suffer from weaknesses. First, a liberty theory grounded in due process argues that everyone has a fundamental right to civil marriage. But civil marriage is a government program that states likely could abolish without constitutional difficulty. In that way, it differs from other family-related liberties such as the ability to procreate or engage in sexual intimacy. Second, an equality theory suggests that classifications on the basis of sexual orientation are constitutionally suspect. But that approach is unlikely to succeed in the Supreme Court or many state tribunals. Equal access, in contrast, requires states to justify laws that selectively interfere with civil marriage, regardless of any independent due process or classification-based equal protection violations. We show how this approach is grounded in precedent regarding intimate relationships, as well as in analogous law concerning voting and court access. Our proposal offers courts a workable way to evaluate the constitutionality of different-sex marriage requirements and a more satisfying conceptual basis for the right to marry generally. It also suggests a useful framework for thinking about recognition of other nontraditional family structures.

scholarly journals The Argument for Same-Sex Marriage

2018 ◽  
Author(s):  
Nelson Tebbe ◽  
Deborah Widiss ◽  
Shannon Gilreath
Keyword(s):  
Due Process ◽  
Equal Access ◽  
Equal Protection ◽  
University Of Pennsylvania ◽  
Gay Identity ◽  
Same Sex ◽  
Same Sex Marriage ◽  
Substantive Due Process ◽  
The Right ◽  
Made In

159 University of Pennsylvania Law Review PENNumbra 21 (2010)Professors Tebbe and Widiss revisit the arguments they made in "Equal Access and the Right to Marry" and emphasize their belief that distinguishing between different-sex marriage and same-sex marriage is inappropriate. They lament the sustained emphasis on the equal-protection and substantive-due-process challenges in the Perry litigation and suggest that an equal-access approach is more likely to be successful on appeal.Professor Shannon Gilreath questions some of the fundamental premises for same-sex marriage. He challenges proponents to truly reflect on "what there is to commend marriage to Gay people," and points to his own reversal on the question as evidence. Though he stands fully in opposition to critics of same-sex marriage who use the stance to veil attacks on equality generally, Gilreath argues that marriage can be seen as a further institutionalization of gays and lesbians that risks "assimilationist erasure of Gay identity." Gilreath concludes by noting that to the extent that marriage is assumed to be normatively good, the Tebbe-Widiss equal access approach to same-sex marriage recognition may be the most successful; still, he invites those on all sides of the debate to vigorously challenge that assumption.

Alvaré, J., dissenting.

2020 ◽  
pp. 241-261
Keyword(s):  
Due Process ◽  
Equal Protection ◽  
Human Beings ◽  
Fundamental Interest ◽  
Equal Protection Clause ◽  
Definition Of

The majority claims that it has not adopted a definition of “marriage” for purposes of the Due Process Clause. Nonsense. It did so when it concluded that states do not have sufficient reasons under the Equal Protection Clause to deny a pair of human beings access to something it called “marriage.” It did so when it claimed that the pair has been irrationally denied a “fundamental” interest in marriage....

Some Thoughts on the Constitutionality of Good Samaritan Statutes

1982 ◽  
Vol 8 (1) ◽  
pp. 27-43
Author(s):  
Barry Sullivan
Keyword(s):  
Due Process ◽  
Common Law ◽  
Equal Protection ◽  
Good Samaritan ◽  
Federal Constitutional ◽  
Medical Emergencies ◽  
The Common ◽  
Substantive Due Process ◽  
Good Samaritan Laws

AbstractGood Samaritan laws provide legal immunity to persons who assist in medical emergencies. Because good Samaritan laws eliminate the common law right of victims to secure redress for their injuries, these statutes raise certain constitutional questions. The Article begins by examining the vulnerability of good Samaritan statutes to federal constitutional attack on substantive due process and equal protection grounds. It then considers the susceptibility of such laws to state constitutional attack on the same grounds. The Article concludes that while such statutes are not likely to violate federal substantive due process and equal protection provisions, they may be held unconstitutional on similar state grounds.

The State's Interest in Potential Life

2015 ◽  
Vol 43 (2) ◽  
pp. 345-357 ◽  
Author(s):  
Dov Fox
Keyword(s):  
Due Process ◽  
The Other ◽  
Individual Privacy ◽  
Substantive Due Process ◽  
Constitutional Right ◽  
The Government ◽  
Roe V Wade

Most people identify Roe v. Wade with a single landmark judgment. It extended the constitutional right of individual privacy to a woman’s decision about whether to terminate a pregnancy. Indeed, political, judicial, and scholarly debates about the case have focused on the origin, content, and balancing of that substantive due process right to abortion.Largely missing from these debates is Roe’s distinct holding, on the other side of the constitutional ledger, that the government has a valid reason to regulate reproductive conduct in the name of “potential life.” Despite decades of intensive litigation and academic commentary on the metes and bounds of reproductive privacy, scholars have paid little attention to the state’s interest in potential life that it is routinely found to implicate.

From Warren to Burger: The Rise and Decline of Substantive Equal Protection

1972 ◽  
Vol 66 (4) ◽  
pp. 1226-1233 ◽  
Author(s):  
Wallace Mendelson
Keyword(s):  
Due Process ◽  
Fourteenth Amendment ◽  
Equal Protection ◽  
Judicial Activism ◽  
Bill Of Rights ◽  
Burger Court ◽  
Judicial Supremacy ◽  
Warren Court ◽  
Substantive Due Process

Substantive due process is the classic, if temporary, achievement of judicial activism. The Roosevelt Court destroyed it out of respect for the democratic processes. Mr. Justice Black's “incorporation” ploy was calculated to forestall backsliding by equating the Fourteenth Amendment with the Bill of Rights. But the Bill of Rights, after all, is quite old fashioned. It does not cover many matters deemed crucial in our day, e.g., poverty. To fill this “gap” the Warren Court used “equal protection” as “actively” as the pre-Roosevelt Court had used “due process.” Obviously inspired by the Black incorporation principle, the early Burger Court is doing to substantive equal protection what the Roosevelt Court did to substantive due process. A generation ago we called it a “return to the Constitution,” now it is called strict construction. If in time the full Nixon Court succumbs to the magic of power and imposes its ideals upon the nation, some of us may find embarrassment in our quondam efforts to convince ourselves that judicial activism (it used to be called judicial supremacy) is a proper handmaiden of democracy.

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