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Intuition, Morals, and the Legal Conversation About Gay Rights

Goldberg, Suzanne B.

When lawyers and judges converse in litigation, factual and legal analysis typically takes center stage. Yet, when the legal conversation turns to the rights of lesbians, gay men, and bisexuals, the ground shifts. Intuition and morals rationales often displace evidence-based reasoning. More specifically, arguments to limit the rights of lesbians and gay men tend to depend explicitly on intuition, and sometimes morality, in ways that contemporary arguments to restrict the rights of other social groups rarely do.

In addressing this dissonance, this essay has two central aims. The first is simply to observe the disproportionate openness to arguments based on intuition and morals in legal conversation regarding gay rights, particularly in equal protection litigation. The second is to consider some of the functions and consequences of intuition-based arguments in legal conversations more generally. I concentrate primarily on intuition-based arguments because they are the focus of scholarly inquiry less often than morals arguments, although I address morals-based arguments as well. I begin by sketching the work that intuitions do in sexual orientation cases. Against this backdrop, I propose that the explicit proffer of intuitions and moral claims as rationales for government action in cases involving the rights of lesbians and gay men, while pleasingly transparent, also raises troubling problems for legal decision-makers. Finally, I offer some brief thoughts as to why intuition- and morals-based arguments are so freely made in connection with challenges to sexual orientation-based distinctions, when references to similar intuitions and moral views would not typically appear in conversations about other types of government action.

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Nova Law Review

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Law
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October 19, 2015