Presenting “Regulating Sex, Love, and Marriage” on Wednesday, Robert A. Burt, Alexander M. Bickel Professor of Law at Yale University, explored the parallels between interracial and same-sex rights.
Burt divided his lecture into two parts. He first addressed what he described as “an inquiry about the meaning, the proper substantive definition of the words of the 14th Amendment.” Ratified in 1868, the amendment asserts, “No state shall deprive any person of the equal protection of the laws.”
Burt rebuffed the idea presented by Associate Justice Antonin Scalia, who has served on the Supreme Court since 1986, that because the Constitution does not explicitly reference marriage or homosexuality, it does not allow for same-sex marriage.
“The problem with this narrow literalism is that it isn’t a true reading of the obvious intent of the people who wrote the words of the 14th Amendment,” Burt said.
Immediately following the Civil War, the amendment permitted Blacks, for the first time, to legally marry. According to Burt, the framers of the 14th Amendment envisioned that future judges would give expanding content to the equality secured by it.
“[It] was adopted as part of the implementation project following from the abolition of slavery,” he said.
Burt paralleled the fight against miscegenation laws, which prevented interracial couples from marrying as recently as the 20th century, with the current legal debate surrounding same-sex marriage.
“The basic question is whether state prohibition of same-sex marriage reflects the same underlying attitude toward gays and lesbians that legal prohibition of interracial marriages signified toward blacks,” Burt said.
Presently, Massachusetts is the only state in which same-sex marriage is legally recognized. Connecticut was the first state to legalize civil unions for same-sex couples without any intervention on the part of judges. Vermont and Hawaii, among other states, also recognize same-sex civil unions.
Burt said that the fight for same-sex marriage need not be based solely in morality. The right for gays and lesbians to marry is constitutionally required by the 14th Amendment, he said, because it guarantees every person equal protection under the law.
Burt opened the second phase of his presentation by describing how the legalization of same-sex marriage should be enacted in conjunction with those who disagree that the text of the 14th Amendment allows for such a right.
“Constitutional interpretation in a contextual perspective is more interactive than authoritative,” he said.
Burt stressed that the process of redefining marriage laws should take place in a gradual and consultative, rather than dictatorial, process. This process, Burt said, includes public acknowledgement of the wrongness in prohibiting same-sex marriage, the opportunity for gays and lesbians to openly proclaim the reality of their suffering and, finally, the public extension of empathy to gay and lesbian communities.
“This defining enterprise [in removing stigmas associated with same-sex marriage] is a public process of moral responsibility shared among all of us—citizens, elected officials, and judges,” Burt said.
Attendees recognized his legal approach to controversial sex and marriage, as well as his democratic reactions.
“I think the three-step plan was commendable, but the odds of something changing in the constitutions would probably be unlikely,” said Allyson Chung ’10. “Overall I think he was a very good speaker, but some of the legal terms he used were hard for me to understand. He’s a lawyer, and he knows the Constitution very well, but as an 18-year-old student it was a little hard for me to understand.”
Burt delivered his lecture in the College of Letters Lounge as part of the annual Philip Hallie Lecture Series. The series is funded by David Rhodes ’68, in honor of the late Philip Hallie, who was a professor of COL in the 1960s.