The “Civil” Courts: The Case of Same-Sex Marriage

This Essay argues that the embattled movement for civility in public discourse should direct its attention toward the perceived harms of civility, rather than the perceived harms of incivility. The alleged harms of civility include the views that civility harms adherents, that civility honors the dishonorable, and that civility impedes authentic engagement. Examining the case of same-sex marriage, this Essay shows that these perceived harms were surmounted in the counterintuitive context of civil litigation. It remains unclear whether the civility of the courts can be replicated in other forums. Nevertheless, this case study demonstrates that none of the harms associated with civility necessarily attends it.