October 2011, Volume 97, Issue 6
Same-Sex Marriage, Second-Class Citizenship, and Law's Social Meanings
by Michael C. Dorf
97 Va. L. Rev. 1267 (2011)
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Government acts, statements, and symbols that carry the social meaning of second-class citizenship may, as a consequence of that fact, violate the Establishment Clause or the constitutional requirement of equal protection. Yet social meaning is often contested. Do laws permitting same-sex couples to form civil unions but not to enter “marriages” convey the social meaning that gays and lesbians are second-class citizens? Do official displays of the Confederate battle flag unconstitutionally convey support for slavery and white supremacy? When public schools teach evolution but not creationism, do they show disrespect for creationists? Different audiences reach different conclusions about the meaning of these and other contested acts, statements, and symbols. Accordingly, one needs some method for selecting the relevant audience. No method is perfect, but this Article tentatively advances a “reasonable victim” perspective as the presumptive starting point for constitutional analysis.
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