Book Description

The two-decades-long controversy over same-sex marriage in the United States was finally resolved on June 26, 2015, when the U.S. Supreme Court handed down its decision in Obergefell v. Hodges, which held that the Fourteenth Amendment’s Due Process and Equal Protection Clauses required states to allow same-sex couples to marry on the same terms as opposite-sex couples. Under our American system of government, divisive and often abiding disputes may be resolved either through legislation or judicial decisions. In Same-Sex Marriage and American Constitutionalism, Murray Dry explains why the process by which Americans arrive at these resolutions can be as important as the substance of the resolutions themselves. By taking up the question of same-sex marriage, Dry excavates the bases of why and how Americans decide as we do (and as we have done when major questions arose in the past; think: school integration, abortion, gun control, and campaign finance). As Professor Dry retraces the path that same-sex marriage took as it wended its way through the political (that is, the legislative) process and through the court system, he finds a vivid framework for the question, “Who should decide?” It’s a question often overlooked, but one that Dry believes should not be. He argues convincingly that it does matter whether the Supreme Court or the legislature makes the final decision—so that court-mandated law does not threaten democratic representative government, and so that legislation does not trample on fundamental constitutional rights.