Capital Punishment, Same-Sex Marriage, and the Constitution: What Role for the Courts?

As RLL readers know, the magisterium of the Roman Catholic Church is morally opposed both to capital punishment and to granting access to civil marriage to same-sex couples.  I have recently argued, in my new book and elsewhere, that the two practices—capital punishment and excluding same-sex couples from civil marriage—violate the constitutional law of the United States (here, here, and here).  Of course, any argument about the constitutionality of capital punishment or of excluding same-sex couples from civil marriage (or of any other law or public policy) necessarily relies on a particular understanding of how the judiciary should go about determining (1) whether a right claimed to be a constitutional right has constitutional status and, if so, (2) whether the challenged government action violates the right.  What understanding do my arguments rely on—my arguments about capital punishment and same-sex marriage?  I address that question in a new paper—a “working paper”—that I have just posted to SSRN.  Some RLL readers may be interested.  The abstract of and a link to the paper are available here.