114 Yale L.J. 1897 (2005)

Traditional justifications for civil disobedience emphasize the limits of legitimate political authority and defend civil disobedience as a just response when governments overstep these limits. Such liberal justifications are well suited to certain classes of civil disobedience--in particular, to disobedience in protest of laws or policies that violate basic rights. Moreover, these classes include the historical cases of civil disobedience (for example, in the American civil rights movement) to which the traditional treatments of civil disobedience responded. But the traditional liberal theory fits less well when civil disobedience is directed against laws or policies that fall within the scope of democratic political authority. Such cases figure increasingly prominently in the political landscape. The traditional theory of liberal disobedience is therefore increasingly inadequate to the practice of disobedience on the ground.

This Essay develops an alternative approach to civil disobedience--a theory of democratic disobedience--that can explain such cases. According to this theory, civil disobedience may be justified when there is a democratic deficit in the processes that have produced the laws against which the disobedience protests. Even if such laws could be legitimate, because they fall within the scope of democratic political authority, the democratic deficits that they suffer deprive them of actual authority. Civil disobedience functions, in such cases, not to limit but rather to enhance democracy.

The argument presents an account of democratic politics that highlights the possibility of democratic deficits as a necessary side effect of the basic mechanisms of democratic political authority, which democratic disobedience might correct. Along the way, the argument develops an analogy between civil disobedience and another seemingly antidemocratic political practice: judicial review. This analogy emphasizes the costs of approaching democratic disobedience on the traditional, liberal model. It also helps the argument structure the forms and limits of democratic disobedience. The argument concludes by speculating about the rising prominence of democratic disobedience and connects this phenomenon to broader trends in democratic politics.

114 Yale L.J. 1989 (2005)

Public debate about same-sex marriage has spectacularly intensified in the wake of the Massachusetts Supreme Judicial Court's decision in Goodridge v. Department of Public Health. But amid the twisted faces, shouts, and murmurs surrounding that decision, a bit of old-fashioned common-lawmaking has been lost. Some have criticized the Goodridge court for its apparently result-oriented approach to the question of whether, consistent with the Massachusetts Constitution, the commonwealth may deny marriage licenses to same-sex couples. Others have defended the decision, both on the court's own rational basis terms and on other grounds, including sex discrimination and substantive due process. This Comment contends that both sides are partly right.
 
I join those commentators who find Goodridge's reasoning flawed but its outcome correct. Where I part ways is in recognizing the vital importance but untapped potential of the Supreme Court's decision in Turner v. Safley. The Turner Court held unconstitutional a Missouri prison regulation denying inmates the right to marry except for "compelling reasons." It is a familiar case, frequently invoked in legal arguments over same-sex marriage to support the proposition that marriage is a fundamental right under our federal constitutional jurisprudence. Too often, however, these arguments miss the totality of what Turner tells us about exactly why marriage is a fundamental right. Because the Turner Court struck down a marriage ban that applied to a population with no legal right to procreate and that provided an exception for pregnancy, the decision undermines any claim that marriage is fundamental because of an inexorable connection to procreation.
 
Part I of this Comment scrutinizes and ultimately rejects the Goodridge court's rational basis analysis. Part II explores the road not taken in Goodridge--the fundamental rights approach of cases such as Loving v. Virginia, Zablocki v. Redhail, and Turner. I argue that for marriage to comport with our fundamental rights jurisprudence, the source of its constitutional definition must be constitutional common law, not individual state statutes. Part III rediscovers Turner as a source of that constitutional definition, concluding that the case is irreconcilable with the view that the possibility of procreation is a necessary affluent of marriage's fundamentality. With Bowers v. Hardwick officially dead, Turner insists that same-sex marriage bans answer to strict, and therefore fatal, scrutiny.
 

114 Yale L.J. 2005 (2005)

Daniel Ho claims that if one tugs at a single strand of my analysis of affirmative action, A Systemic Analysis of Affirmative Action in American Law Schools, the entire structure collapses. As I explain briefly in this Response, Ho is wrong. Ho seems to miss the central analytical framework of my article, is vague in his claims of bias, and offers an alternative approach that violates the very methodological precepts he lays out.
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