Linda C. McClain, “Red Versus Blue (and Purple) States and the Same-Sex Marriage Debate: From Values Polarization to Common Ground?”

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The abstract:

What is the role of courts in circumstances of “values polarization”? The framing of this question brings to mind, but differs from, some familiar inquiries about the judicial role in circumstances of conscientious moral disagreement or value pluralism and debates about liberty, morality, and community. Using the conflict over whether civil marriage should extend to same-sex couples as an example, I contrast two recent analyses of values polarization and its implications for finding agreement, Ronald Dworkin’s book, Is Democracy Possible Here?, and June Carbone and Naomi Cahn’s project, Red Families v. Blue Families. Dworkin’s strategy is to identify shared principles about human dignity that will make a national debate possible; Carbone and Cahn instead point to two diverging patterns, or models, of family life in red and blue states and two differing regimes of family law – and family values, and suggest how federalism might help in reducing polarization. As a crucible through which to test these two interpretive projects and their view of the judicial role, I discuss the recent opinion of the Supreme Court of California, In re Marriage Cases (2008), in which the court ruled that California’s constitution required opening up civil marriage to same-sex couples. I contrast the ongoing controversy in California over civil marriage with the pathways that Oregon and Washington have taken on the issue of marriage equality. I conclude that discussion of values is likely unavoidable in developing and adjudicating family law. I consider whether President Obama’s rejection of the red state-blue state dichotomy and his appeal to “values we hold in common as Americans” signal the beginning of the end of values polarization.

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