Document Type

Article

Publication Title

Yale Law Journal

Abstract

Bruce Ackerman's volume on the civil rights revolution argues that the Second Reconstruction was centrally concerned with the concept of institutionalized humiliation. Ackerman inveighs against the fact that we have turned away from this "anti-humiliation principle" in our modern civil-rights jurisprudence, with the exception of the jurisprudence surrounding same-sex marriage. While I generally agree with Ackerman's account, I believe a closer look at gay-rights jurisprudence might further illuminate his analysis in two ways. I first argue that the anti-humiliation principle in the gay-rights context actually extends well beyond the same-sex marriage debate. I then contend that this jurisprudence also suggests that the mechanisms that Ackerman describes for establishing the anti-humiliation principle need to be supplemented. I suggest that greater use of the civil-rights trial may be a crucial way in which courts might discern the existence of institutionalized humiliation, taking the landmark trial in Perry v. Schwarzenegger as my case study.

First Page

3076

Volume

123

Publication Date

2014

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