Search

How do contemporary theorists view the relationship between religion and the constitutional order? As expected, there is considerable disagreement about the character of this relationship. These different conclusions fall into three categories. One supposes that religion was, and remains, hitched closely to American constitutionalism. Another disagrees, maintaining that the very source of liberal constitutionalism is the realization of a need for not only a deep separation of church and state, but religion from public life. A third group argues that the Founding generation did not fully resolve the tension between religion and liberalism, establishing institutions that would allow future generations to give weight to each depending on circumstances. In short, they left it to others to work out, and this constitutional reconciliation of the two has been one of the driving forces in American political history. Ultimately, this review will be supplemented by a consideration of contemporary conclusions in light of Christian thought and classical liberal theory. In my conclusion here, I will offer some initial suggestions about how each of these theories might be in need of minor corrections. Generally speaking, they result from a misunderstanding of the commitments of American liberalism; how it protects rights, and what its moral commitments are. [ABSTRACT FROM AUTHOR]

The early years of the Roberts Court have coincided with considerable activity at the state level - legislative and judicial - addressing the legal treatment of the domestic relationships of homosexuals. In addition to high court opinions in California, Connecticut, and Iowa, holding that state laws restricting marriage to male/female relationships violate state constitutional norms, the state of Vermont became the first state to extend the right to marry through the political process. At the same time, numerous states have moved in the other direction, restricting marriage to traditional male/female unions through constitutional amendment and referendum.To date the Roberts Court has not had an opportunity to address this conflicting legal treatment. It is unlikely, however, that the Court will be able to avoid addressing this issue in the long term. The patchwork legal regime of conflicting state laws, the federal Defense of Marriage Act (DOMA), and state refusal to recognize out of state homosexual marriages will encourage litigation in the federal courts.While the Court has not addressed same-sex marriage, recent opinions (both before and after the confirmation of Chief Justice John Roberts and Justice Samuel Alito) have advanced a jurisprudence of intermediate scrutiny and the importance of an evolving national consensus to the development of constitutional meaning. Those opinions will likely serve as the backbone of any analysis of same-sex marriage by the Roberts Court.This paper will consist of three sections. First, it will analyze the development in the states of the legal framework addressing homosexual unions, with particular attention to the state constitutional amendment and referendum process and to actions of state high courts in Goodridge v. Department of Public Health (Ma. 2003), In re Marriage Cases (Ca. 2008), Kerrigan v. Comm. Of Pub. Health (Ct. 2008), and Varnum v. Brian (Ia. 2009). I will also consider post-DOMA political developments at the federal level. Second, I will consider the Court's jurisprudence of intermediate scrutiny and the role of a developing consensus in other cases such as Casey v. Planned Parenthood (1992), Romer v. Evans (1996), Atkins v. Virginia (2002), Lawrence v. Texas (2003), Kennedy v. Louisiana (2008), and D.C. v. Heller (2008). I will conclude with an evaluation of constitutional developments on homosexuality, compare them to the development of constitutional meaning discussed in the case law evaluated in the second section, and consider whether the Roberts Court might eventually confront the conflicting constitutional values present in the development of constitutional meaning on homosexuality in something other than an ad hoc fashion. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]