Like co-bloggers Dale Carpenter and Jonathan Adler, I highly doubt that Ted Olson and David Boies will succeed in their case urging the Supreme Court to declare a federal constitutional right to gay marriage. At the same time, I differ with them somewhat in believing that gay marriage litigation has been a huge net plus for the gay rights cause. I outlined my reasons in this series of posts. The first post in that group explains why pro-gay marriage litigation has been a major gain despite the political backlash against it. The political effectiveness of these lawsuits of course says little about their legal merits. For what it’s worth, I think that the pro-gay marriage position has greater force under some state constitutions than others, especially those that have Equal Rights amendments; but I’m not going to try defend that view in any detail in this post.
Ilya Somin says:
Just checking to see if the comment function is working, since usually posts about gay marriage attract huge numbers of comments.
January 10, 2010, 10:34 pmChris Travers says:
I can’t imagine why this would be controversial. Not all states have identical constitutions. Some, like the Alabama Constitution, are just plain nutty. (Current version adopted in 1901, and in the last 109 years, 799 amendments have been passed…..)
If different constitutions are different, it would stand to reason that some of the 50 would be more supportive of gay marriage than others. Or am I missing some reason this might be controversial?
January 11, 2010, 12:28 amIlya Somin says:
If different constitutions are different, it would stand to reason that some of the 50 would be more supportive of gay marriage than others. Or am I missing some reason this might be controversial?
I agree that it stands to reason. But public discussion of the issue tends to lump the different state gay marriage decisions together, and almost never do you see distinctions made between them. I suspect that’s because most people’s attitude towards these decisions is dictated by their general view of gay marriage, rather than by specific legal analysis.
January 11, 2010, 12:48 amMike says:
That only stands to reason if you believe that the contents of the constitutions are in any way relevant to decisions like Goodridge or Lawrence. An alternative view is that these decisions are about judges trying to act as super-legislators beyond the reach of the voters. Under that view, arguments based on the contents of actual constitutions are pure fiction. The judges simply want to impose their will on the plebs, and they act when they believe that the political climate will allow them to do so safely.
Many readers here may refuse to believe it, but many people who oppose gay marriage do so primarily in defense of representative government and rule of law. If Judge Walker succeeds in staging an Internet show trial, I think that he will hurt the cause that he wants to help. On the anti-gay-marriage side, the narrative is simple: The people spoke, and the judges don’t want to listen. The more attention that Judge Walker calls down on Prop 8, the more people will hear and understand that narrative.
January 11, 2010, 4:38 amHouston Lawyer says:
The only meaningful difference I’ve seen between the state constituions that has seemed to matter on this issue is how easily the people can amend the constitution to overturn rulings of the judiciary creating a right to SSM.
January 11, 2010, 8:46 amKlinger says:
Professor Somin, why are you so confident that Olson & Boies will fail? Walker has all but declared that he is going to rule in their favor. I’ve never seen anyone on the bench betray their intentions so clearly.
If you mean ultimately (as in after the case goes to SCOTUS) then you are probably right, but if you mean in the short term, it’s almost a certainty that Judge Walker (who may be homosexual himself) is going to rule against Prop 8.
January 11, 2010, 9:00 amOren_ says:
Say it ain’t so!
January 11, 2010, 11:53 amChris Travers says:
Based on what evidence? Based on “I don’t like the result?”
The thing is that, while I suppose some people can argue that the court took a wrong turn in Griswold (as Thomas did in Lawrence), I think that Lawrence fundamentally follows from Griswold and related cases. Do you disagree?
January 11, 2010, 1:01 pmChris Travers says:
And yet the Washington State Supreme Court held that my state’s constitution did not create a right for gay marriage despite the fact that the constitution is very difficult to amend.
January 11, 2010, 1:02 pmPedant says:
I have nothing against gay marriage. Same-sex marriage on the other hand…
January 11, 2010, 3:43 pmMatthew Heaney says:
When you bandy about terms like “gay marriage” or “same-sex marriage,” you only assume the thing you’re trying to prove (“begs the question”).
There is only one institution, “marriage.” If the state is going to be in the marriage business (I would argue that it should not be, but that’s beside the point), then it cannot discriminate to whom it extends marriage rights.
You can be against “same sex marriage,” but that’s neither here nor there. Who cares what you’re for or against. That’s not a compelling reason to deny other citizens to right to marry whom they choose (even if they make a gender choice different from you).
Perhaps there are lots of other people like you, who are also against “gay marriage.” But who cares, constitutions are anti-majoritarian documents. Lots of people, perhaps a large super-majority, might be in favor of denying marriage rights to gay citizens. But constitutions don’t care what the majority wants. The power of the majority is circumscribed by the constitution. (What would be the point of even having having a constitution otherwise?)
The point is that “same sex marriage” is an artificial term. It is a distinction without a difference, in the eyes of the law. You personally might make a distinction (with respect to marriage) between gays and straights, because making such a distinction is useful to you (although I cannot fathom why), but who cares. The debate is about whether the state has the power, within the limits of the constitution, to make such a distinction.
Advocates of marriage rights and equality under the law should refrain from using terms like “gay marriage” or “same-sex marriage” because it only reinforces of the framing of anti-equality advocates. That framing of the debate is wrong. The correct framing of this issue is: there is only “marriage,” and the debate is about whether the constitution allows a state to extend marriage rights to some citizens, while denying it to others. Advocates of marriage rights don’t want something extra or new specifically for them, they simply want to have the same rights as you do.
January 11, 2010, 4:31 pmPedant says:
I seriously doubt that. I would guesstimate no more than about 2%.
I agree for different reasons.
Argument and persuasion through obfuscation? Wonderful. “Gay marriage” is ambiguous enough.
January 11, 2010, 5:27 pmNate says:
Let me be the first to say, huh? Gay couples are a threat to representative government, now? Representative government concerns might lead you to oppose, say, Goodridge v. DPH (or Loving v. Virginia, for that matter), but I find it hard to believe that someone could “oppose gay marriage” itself on representative government grounds. Half of the U.S. jurisdictions to allow same-sex couples to marry did so at the behest of the legislature (New Hampshire, Vermont and DC). In two of the others (MA and CT), I’m guessing voters or electeds would support marriage rights if the relevant court decisions came to a vote. The only tribal government to recognize marriage rights likewise did so legislatively.
I’m guessing your phrasing was accidental, but it’s telling: people who “oppose gay marriage” do so because they don’t consider same-sex couples to be equal in standing and rights to hetero couples. People can, as Eugene does, disagree about the merits of a constitutional claim. That’s quite different from thinking that, as a policy matter, the state should not recognize the family relationships of countless Americans and their children.
January 11, 2010, 6:07 pmProp. 8 lawsuit should be interesting - Orange Punch : The Orange County Register says:
[...] profs blog arguing that seeking marriage equality through the courts is a bad tactic, and here is another law prof and another arguing that it has been effective and is [...]
January 11, 2010, 7:53 pmMike says:
Under current conditions, a victory for gay marriage is also a victory for the tactics used to impose it.
It’s the same story with Roe v. Wade: It altered the law on abortion, and it advanced the idea that the US Sup Ct can pull a policy objective out of its posterior and ram it down the throats of the American people with no voting allowed, ever. Roe v. Wade was a serious blow against the idea of representative government.
Be careful in presuming to know what other people think, especially large groups of people. It’s easy to clamp down on a single moral perspective, and then use that one perspective as a substitute for reality. It’s much more difficult, and much more effective, to look beyond your own passions and see the world as it is.
Frankly, I don’t if your goal is sunshine and fuzzy bunnies. If your tactics are legislation by judicial fiat, lawlessness by elected officials, voter intimidation—and now with the YouTube drama a brazen attempt at witness intimidation by the trial judge—then I’m opposed to whatever you say you want.
January 12, 2010, 1:53 amDavid Newton says:
If the trial judge is making clear what the ruling is going to be prior to the trial then the trial judge should either recuse himself or be removed from the trial or a mistrial should be declared. If the judge is engaging in a “brazen attempt at witness intimidation” then that is something for the state bar to look at in professional misconduct proceedings and it is also a situation where impeachment might be appropriate.
I do not know if those allegations are true, but I would be cautious about them because of the amount of heat and light that the subject generates. There are significant substantive policy and constitutional issues to be raised here and the trial judge needs to frame their ruling very carefully if it is to stand when the inevitable appeals take it to the SCOTUS. Since this is a California federal case we also have the Ninth Circuit’s wonderful record of upheld appeals to consider.
What we also have to consider is that a great many people mis-characterise the equal protection arguments of this situation. It is not being argued that gay people cannot marry because they clearly can. What is being argued is that discrimination on sexual orientation grounds is occurring because gay couples cannot gain the same protections under law as straight couples can. That is things like visitation rights, inheritance rights, custody rights, property rights and medical decision rights.
Personally I consider the phrase “gay marriage” to be an oxymoron because marriage is inherently between a man and a woman. Nevertheless under the law there are strong arguments for extending the legal rights and protections and the responsibilities which the state gives married couples. What I would prefer to see is the state getting out of marriage completely. The rights and responsibilities which currently attach to marriage would instead attach to an institution which would perhaps be known as a civil partnership. Straight people and gay people would have to all undergo the same ceremony and would be grated the same rights and responsibilities under the law. If people then wanted to get married in a church or temple or other religious institution then that would be a private matter which would have no bearing under the law.
I doubt that the US will end up with the situation described in the last paragraph. However it could be argued that under the first amendment the state relying on religious institutions to carry out marriages is unconstitutional under the establishment of religion clause. That is a completely separate argument to the equal protection arguments under the fourteenth amendment set out above and does not really have a direct bearing on the case here. Nonetheless it is a question that may well eventually come before the courts. In fact for all I know it could be question that has already come before the courts and been settled long ago.
This is a hot-button issue and whatever the outcome someone will likely be seriously outraged and make a lot of noise about it.
January 12, 2010, 5:44 amNate says:
Thanks for the handy list of Bad Stuff The Gays Are Doing. Since you have properly attributed them to me and all other gays, it makes sense that you oppose our civil rights. Glad we sorted that out!
“Legislation by judicial fiat” is a gross mischaracterization. Same-sex couples want in to a particular civil institution, one carrying hundreds of rights and benefits. They have a colorable claim rooted in constitutional text, since states have denied them the rights and protections available to other citizens. You may be skeptical of that claim — on the basis of constitutional text and history, I am too — but it’s not some cockamamie substantive due process theory urging a fundamental right to smoke dope in the street. If you thought you were the victim of an equal protection violation, why *wouldn’t* you seek recourse in the courts? What else is the EPC there for, save letting unpopular people demand entry into civic life?
I don’t expect you or others to accept this characterization, but painting constitutional claims to marriage rights as an unreasonable demand — so cwazy that should anyone make it in court you will “oppose whatever [they] say they want” — is unfair to the couples bringing these cases. They’re doing so because they want in, not because they want to remake American law in their own image. You might not agree with them, but I’d hope you have enough compassion to acknowledge that’s a rational response to a legal regime that treats them as strangers to their loved ones.
As to witness intimidation by videotape … huh?
January 12, 2010, 7:27 amJamestown says:
Mike, most same-sex marriage litigation has been at the state level. It’s hard to argue that state constitutional decisions are that undemocratic, since (1) many state judges are elected, (2) state constitutional provisions are subject to federal law, and (3) state constitutional decisions get reversed by voters all the time. For examples of this, see … California. For a similar phenomenon, see the 30-odd states to put marriage rights on the ballot.
Olson and co are taking their case to the federal courts, but most of the gay rights movement would prefer that these issues stay in state courts. For that matter plenty of gay rights types are working on democratic campaigns — say, the Courage Campaign, which wants to put marriage back on California’s 2010 ballot, or the efforts in Jersey and New York. It’s simply not true that gay activists are wholesale adopting a “no voting allowed” strategy.
January 12, 2010, 9:30 amChris Travers says:
I also think that if Roe v. Wade was decided more along the lines of Casey, the decision would be less controversial now.
One thing that made Roe an objectively bad decision (even in the eyes of abortion-rights supporters like O’Connor) was the fact that the court tried to establish an almost legislative structure for deciding issues of abortion rather than a judicial structure along the lines of Casey.
I don’t think a comparison to the same-sex cases is really apt. It’s not as if the courts are legalizing polygamy and coming up with structures for deciding power of attorney and widowhood questions in advance…. Instead the questions are small ones and are answered in small ways.
January 12, 2010, 2:16 pmptt says:
All the suggestions for a “civil partnership” to replace “marriage” for all citizens seem silly to me. We already have a civil partnership. It’s called “marriage”. And we already have another word in common use for the religious version. It’s call “matrimony”.
You’d think “conservatives” would be in favor of something that 1) won’t cost all the money involved in changing all the laws 2) preserves a perfectly good, traditional word that religions already use.
January 12, 2010, 2:39 pmmarkm says:
Ilya, gay marriage litigation will in the long run be a huge net minus for the cause. The possibility of judges imposing it has led to efforts in most states to pass constitutional amendments against it. These not only foreclose the courts from somehow discovering a right to gay marriage in text written when a man marrying a man was unthinkable, but they also foreclose legislative enactment of gay marriage. Result: in a decade, there will be 30 or more states with a slim majority of the voters in favor of it, but which cannot change their laws without amending their constitutions again.
January 13, 2010, 6:37 amJake Syma says:
I think it might be more accurate to say that “marriage has historically/stereotypically been between a man and a woman… in the United States.”
Or “marriage in the United States has been considered to be inherently between a man and a woman.”
Depending on exactly whose definition of “inherent” (or “inherently”) you’re using, the word may be a bit strong in the context you originally used it.
January 13, 2010, 12:11 pmuberVU - social comments says:
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February 12, 2010, 1:12 pmLimited Company says:
People should be able to marry who they want, no matter their gender.
August 31, 2010, 3:19 pm