Some people who favor gay marriage--including top constitutional lawyers, who don't just favor it but believe it to be a constitutional imperative of required by justice--still take issue with the reasoning of the Obergefell decision. It continues in a shaky line of vague, seemingly ad hoc jurisprudence, that is unnecessarily controversial and therefore sub-optimally/maximally legitimate.
Instead, they argue, of inventing/discovering/articulating a new right to a new or changed entity based on a new protected class, base the articulated/established right on the more settled law of sex discrimination. This has the added benefit of according/cohering more with common sense: gay relationships are no worse or better than straight ones, cause it doesn't matter if one partners with a man or a woman, i.e. the person's sex doesn't matter/shouldn't matter/be relevant/is relevant.
And while I have no knowledge at all about the legal path this case and preceding cases in the larger effort to get to this point, I can't help but wonder if the fact that the legal option actually pursued (other than tailored to Kennedy's prejudices) is related to the seemingly newly ascendant focus on symbolism and language and the expressive function of political acts.
Is there a connection between the focus on symbolism and language and the possible legal cases/paths of reasoning on gay marriage, i.e. the court could have legalized gay marriage nationwide using less controversial legal reasoning (sex discrimination) but which would not have out right made a case for gay people?
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They're focusing on the expressive function of the law
, but there's also the focus on the agents involved
and basing one's political position on prioritizing the ability to tell the virtuous from the vicious, or to express/communicate/show-illustrate/declare/call attention to for others the virtue (or otherwise) (or vicious character) of others.
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