Matrimonio Del Mismo Sexo De Acuerdo A La Constitucion Estado Unidense

Carolina Molina Siller
Law and Legal Theory
Is a State ban on Same-Sex Marriage Unconstitutional?
May 8, 2012
From certain point in history of the United States of America we have had discussions on whether a State ban on Same-Sex Marriage is unconstitutional or not. The question is how we should interpret the Constitution in order to get the most accurate response to this issue. First inthis essay I will present and explain why Moral Reading is the most reasonable way of interpreting the Constitution. Moral Reading is an approach to constitutional interpretation, which Dworkin claims in his work “The Moral Reading and the Majoritarian Premise”, is the most plausible way to interpret the constitution. Second, I will compare Moral Reading with other theories of constitutionalinterpretation: Bork’s Originalism (OPMO), Barnett’s Originalism (LO), and Strauss’s Common Law Constitutional Interpretation (CLCI) in order to assess the relative strengths and weaknesses of interpreting the Constitution with Moral Reading. Third, based on Moral Reading I will provide the best case supporting the unconstitutionality of a State ban on Same-Sex Marriage. Finally, I will discuss two majorobjections to the Moral Reading defense, as well as two major objections to the State ban of Same-Sex Marriage as constitutional, and that a ban to same-sex marriage will be unconstitutional.
The way the Constitution of the United States is interpreted is claimed to be inexact because of how the Constitution is written. I found that Dworkin in his work “The Moral Reading and the MajoritarianPremise” gives an excellent explanation of how the Constitution should be interpreted, and he calls it Moral Reading (MR). Moral Reading is a liberal approach to constitutional interpretation that can be implemented unrelatedly to one’s political morality. Dworkin explains that the Constitution has distinctions between clauses, some of them are concrete and abstract, such as the equal protection anddue process of law. The due process clause abstract language has been interpreted by the Justices to have a functional piece. “According to the moral reading, these clauses (“right” to freedom of speech, 5th Am “due” process, 14th Am “equal” protection) must be understood in the way their language most naturally suggests: They refer to abstract moral principles and incorporate these by reference,as limits on government’s power” (Dworkin, 7) Therefore, the abstract clauses of the Constitution should be interpreted by moral reading, applying our own understanding of the words implemented by the framers.
In some cases political morality is controversial, but according to the American constitutional system the courts and eventually the Supreme Court is authoritative, hence the Supreme Courthas the last decision on whether a case is unconstitutional or not, creating controversy if someone does not agree to the decision of the Supreme Court. Moral Reading also consist in a set of principles that have to be met at the most general possible level in order to omit controversy within a decision. “I believe that the principles set out in the Bill of Rights, taken together, commit theUnited States to the following political and legal ideals: government must treat all those subject to its dominion as having equal moral an political status; it must attempt, in good faith, to treat them all with equal concern; and it must respect whatever individual freedoms are indispensable to those ends, including but not limiting to the freedoms more specifically designated in the document, suchas the freedoms of speech and religion.”(Dworkin, 7) Following the principles suggested by Dworkin the controversies will be weakened. Moral Reading does give constraints to judges because it enters into the Originalist field in extent. In order to apply Moral Reading into the interpretation of the Constitution the actual text matters, but we must identify the framers intentions on the words...