Serious Disagreement: Same-Sex Marriage, Judicial Review, and the Quality of Debate

Rob Goodman, George Washington University

Abstract

Both defenders and critics of strong judicial review have relied on claims about the quality of debate in courts: the former, such as Ronald Dworkin, have characterized it as more principled than legislative debate, while the later, such as Jeremy Waldron, have called it overly-focused on text and precedent, to the detriment of substantive moral argument. The question can and should be studied empirically. To begin to do so, I compare American legislative and judicial debates, on the federal and state levels, on same-sex marriage. While legislatures and courts often heard similar arguments, the marriage debate in the courts took place on a qualitatively higher level: it showed more engagement between opposing points of view, better reasoning, and more serious treatment of opposing claims about rights. This finding, while in need of further study, ought to strengthen our confidence in courts’ power to make binding decisions on questions of rights.