“The Proposed Anti-Gay Marriage Amendment: The Constitution, The Law of Standing, and Liberal-Democratic Values”

The Proposed Anti-Gay Marriage Amendment: The Constitution, The Law of Standing, and Liberal-Democratic Values
Robert M. Pallitto and Jason Hungerford, 17 Law & Sexuality 75 (2008)

This Article considers the proposed federal constitutional amendment banning same-sex marriage, both in terms of existing legal doctrine and in terms of liberal-democratic values. With regard to doctrine, the article shows that the amendment would not be enforceable because neither a private nor a public plaintiff would have standing to bring suit to enforce it. In the alternative, even if standing were somehow found to exist for a future plaintiff, a court ruling enforcing the amendment would violate well-established practices of tolerance that are central to a liberal-democratic political culture.