• Obergefell and Democracy

    Glen Staszewski
    MSU Law Faculty Repository
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    The. lead opinions -in Obergefell v. Hodges advocated very different conceptions ofthe Court's role in a democracy. Meanwhile, however, both sides of the debate expressed an allegiance to principles of deliberative democracy. The majority engaged in the practice of deliberative democracy by providing a reasoned explanation for its decision that could reasonably be accepted by people with fundamentally competing perspectives, while the dissenters claimed that the Court should have practiced a form ofjudicial minimalism and deferred to ongoing deliberations in the political process. This Article evaluates Obergefellfrom the perspective of deliberative democratic theory and concludes that while the Court could reasonably have waited to resolve the constitutional question or invalidated the state laws at issue on narrower grounds, the Court's decision was democratically legitimate based on the relevant legal, moral, and sociological considerations. This Article, therefore, rebuts the charge that Obergefell was undemocratic. It also provides preliminary thoughts on important questions that Obergefell raises for deliberative democratic theory and judicial practice, including the scope of the judiciary's duty to provide reasoned explanations for its decisions and the ideal relationship between deliberative and agonistic principles, of democracy within the American constitutional system. This Article concludes by observing that dialogic theories of judicial review have already begun the crucial project of synthesizing the principles ofdeliberative and agonistic democracy. However, we must continue to think about the best ways to ensure that the entire constitutional system is sufficiently deliberative and that fundamental moral conflict is addressed by individuals and groups who view each other as legitimate adversaries rather than as mortal enemies, and who treat each other accordingly.
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    1 year ago
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