This paper examines constitutional issues concerning same-sex marriage. Although same-sex relations concern broader ethical issues as well, I set these aside to concentrate primarily on legal questions of privacy rights and equal protection. While sexual orientation is neither a suspect classification like race, nor a quasi classification like gender, there are strong reasons why it should trigger heightened scrutiny of legislation using sexuality as a standard of classification. In what follows, I argue that equal-protection doctrine is better suited for including (...) same-sex couples where legal benefits and burdens of marriage are at stake. (1) I reconstruct arguments from privacy and the controversial ruling of Bowers v. Hardwick but discount this strategy for problematic legal reasons. (2) In order for equal protection to apply, sexual orientation must meet the criteria of suspect classification that the Court has established. (3) Since sexual orientation meets these criteria, heightened scrutiny should be applied to such legislation on equal-protection grounds. (4) Finally, I rely on some familiar Rawlsian arguments of public justification that demonstrate why this extension of marriage rights is consistent with basic constitutional principles. (shrink)

This article uses a conversation analytic framework to describe a type of wh-question used to challenge a prior utterance, specifically to challenge the basis for or right to do an action done by the prior utterance. These wh-questions are able to do challenging because, rather than asking for new information, they are used to convey a strong epistemic stance of the questioner, a negative assertion. The utterances are designed as requests for an account for a prior claim or action, but (...) by conveying a negative assertion, they suggest that there is no adequate account available and, thus, that there are no grounds for the prior claim or action. The use of these questions in institutional settings can display participants' orientation to institutional goals, norms and roles, showing that institutional roles can thus be enacted, and goals accomplished, by means of practices of talk which are not, themselves, institutionally specific. (shrink)

The author, in this series of essays, depicts the law as an essentially literary, rhetorical, and ethical activity. The topics discussed include a talk to students entering law school, describing the intellectual activity of the law, an exploration of the structure of legal thought and expression, and a dialogue which explores the ethics of argument.