Now in Legal Rebels:
Posted Sep 06, 2012 11:00 am CDT
When the law expands one person’s freedom, it restricts that of another.
That principle applies in the context of gay marriage, according to University of St. Thomas law professor Robert Delahunty. In a commentary in the Minneapolis Star Tribune, Delahunty disagrees with the reasoning of a colleague who opposes a proposed Minnesota constitutional amendment to ban gay marriage.
The colleague, University of St. Thomas law professor Mark Osler, argues in the Star Tribune that constitutions typically protect rather than restrict individual freedoms. He urges gay marriage opponents to rely on statute rather than constitutional amendment.
Delahunty sees logical flaws in Osler’s argument. When gay marriage is allowed, heterosexuals are still free to marry one another, Delahunty acknowledges. “But proponents of the marriage amendment argue that an important freedom is being lost: that of living in a social world in which marriage has a particular meaning and is related in specific ways to natural reproduction and family life,” Delahunty writes.
“Of course, some tradeoffs are desirable,” Delahunty continues. “No one now regrets that the constitutional amendment banning slavery necessarily ended the freedom to own slaves. But it is not an argument for that amendment that it expanded freedom without contracting it. It did both.”
The Volokh Conspiracy notes the commentary. Writes one commenter, “Professor Delahunty is restricting my freedom to live in a world where he does not write this op-ed.”