in The Gay Rights Question in Contemporary American Law

Published by University of Chicago Press

Published in print July 2002 | ISBN: 9780226451008
Published online March 2013 | e-ISBN: 9780226451039 | DOI:

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This chapter outlines three approaches to the gay rights question in contemporary American law. The first, the constitutional rights approach, asks, are there constitutional constraints upon the range of acceptable political outcomes, so that one of the sides in this controversy is legally entitled to what it seeks? The second, the moral approach, asks, is there one and only one morally acceptable resolution to the controversy? The third, the conflict of laws approach, assumes that political decision making is not constrained by any legal or moral claim of right and that different resolutions can legitimately be reached in different parts of the country. All three of these approaches are reflected in the recent outpouring of legal scholarship on gay rights. In each area, something of a consensus has emerged. Each consensus, however, rests on false assumptions and weak reasoning. This book offers a perspective on the gay rights question that is distinct from the two opposing views that dominate contemporary discussions: that the courts should impose equality as a national mandate or that gays' equality claims are without merit.

Keywords: gay rights; American law; constitutional rights approach; moral approach; conflict of laws approach; legal scholarship; equality

Chapter.  1796 words. 

Subjects: Constitutional and Administrative Law

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