Assume the following:
Imagine that two males wish to marry. However, the state in which they live has a law that forbids gay unions.
The couple decides to challenge the state law. They claim it violates the Equal Protection Clause. The specific
statute and constitutional provision are as follows:
Constitution: “No state shall deny to any person within its jurisdiction the equal protection of the laws.”
Statute: “Same sex marriages are prohibited in this state. A marriage is between a male and female.”
Pretend that there are 8 judges on the Court. Each of them devoutly follows the following epistemological approaches:
Judge 1: Classical Legal Thought;
Judge 2: Analytic Positivism; [use literal canons]**
Judge 3: Inductive Positivism;
Judge 4: Old-School Originalism;
Judge 5: Neo-Originalism;
Judge 6: Sociological Jurisprudence;
Judge 7: Critical Legal Studies;
Judge 8: Pragmatism;
Pretend that you are insanely schizophrenic, and be each of these judges, one at a time. Write a short legal opinion for
each judge. (If you don’t like pretending that you are schizo, just pretend that the judges all share one clerk -- you – and
that your job requires you to draft a separate opinion for each judge).
When you write your legal opinion for each judge, do not set forth the facts of the case. Give no introduction. Just get
right into it. In fact, just number your paper 1 through 8, giving the answers for each judge.
Your answers are graded on two criteria. (1) Whether you accurately state the “rule for the school” – i.e., how each
school purports to decide cases. (2) How thoughtful (or accurate) your application of the school is to the case. Begin
your answer by telling me how the school decides (couple sentences). Then, write me a few short paragraphs saying how
that school’s judge would decide. Don’t talk about the judge in the third person – be the judge. You may need to think
hard about certain schools (inductive positivism is the hardest; analytic is second-hardest).
** Be careful using “plain meaning” for analytic positivism. If you say something like, “the plain meaning of ‘equal
protection’ is to treat people equally,” you haven’t put enough thought into the matter. Imagine someone saying in
return: “the law does apply equally to gays and straights. The same law applies to both.” The very fact that the two of
you can play this language game is evident that there is not one self-evident meaning.
Also, note that more credit is given to those who use literalistic cannons for analytic positivism. If you use one of the
“counter-canons,” like the “social purpose rule” or “liberal construction,” all that you are doing is escaping the thought
required for the paper. So to get full credit, construct a literalistic argument using the canons of literalism. And when
you use them, don’t just cite to them – show me how they are true in this example. Go into the Constitution words and
I’m available to preview your answers. Come and see me to work out your thoughts, if need be.
This is due on the date of the final.
Here is what an answer should look like in structure. Imagine that we had a Divine Right judge from the dark ages as
judge number 9. When writing the answer for number 9, it might look something like this:
9. Divine Right
Rule: Divine Right decides cases based upon the Law of God. The idea is as primitive as it is simplistic: If the best
meaning of scripture accurately provides for the intentions of Deity, the law must conform to those intentions. And the
Judge, accordingly, must enforce them.
Decision: I believe the Bible is clear on the issue of sexual orientation. In the King James Version, Leviticus 18:22 is
translated: "Thou shalt not lie with mankind, as with womankind: it is abomination;" Leviticus 20:13: "And if a man lie
with mankind, as with womankind, both of them have committed abomination: they shall surely be put to death; their
blood shall be upon them." Romans 1:26-27: "For this cause God gave them up unto vile affections: for even their
women did change the natural use into that which is against nature: And likewise also the men, leaving the natural use
of the woman, burned in their lust one toward another; men with men working that which is unseemly, and receiving in
themselves that recompence [sic] of their error which was meet."
Because of these commands, the Court rules that the Equal Protection Clause does not protect same-sex
Note several things about the above answer. First, it’s structure is simple: rule first, application second. That’s what you
should do. However, note that the answer itself might not be very thoughtful in how it applies the rule. This course isn’t
about religion and sexual orientation, so we haven’t asked ourselves what this answer might be. But do note that the
answer is really theological positivism hiding in disguise. All I am telling you is this: when you give me an answer for a
school, make sure it is intelligent from the standpoint of what you were taught in the course. Put some thought into the
few paragraphs you provide. The above example was only meant to be a good example of structure, not the substance.