Why Excluding Same-Sex Couples from Civil Marriage Violates the Constitutional Law of the United States

The Constitution protects (1) the right to moral equality, and (2) the right to religious and moral freedom. The former involves the right to not be treated as morally inferior to any other human being; the latter protects the right to live one’s life in accord with one’s religious and moral convictions. Excluding same-sex couples from civil marriage arguably violates both of these constitutional protections, but the case that it violates the right to moral and religious freedom is especially strong. Under this right, the government may not impede conduct unless the government has a legitimate objective; the government has selected the least burdensome means to achieve the objective; and the government interest is proportionate to the burden the government has imposed.As this Lecture explains, excluding same-sex couples from civil marriage fails the legitimacy requirement. The only serious reasons advanced for the belief are sectarian reasons. A sectarian moral rationale, whether religious or secular, is not a permissible basis of law for purposes of the legitimacy requirement. I am grateful to the faculty of the University of Illinois College of Law for honoring me with the invitation to deliver this Lecture—and I am delighted to be here with all of you this afternoon.

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