The Volokh Conspiracy

Yesterday the President told ABC News that he believes same-sex couples should be able to get married. So far so good. He further told ABC that he believes this is an issue that should be left to the states which are “arriving at different conclusions at different times.” I have nothing to complain about here, as this is my position as well. I believe in recognition of same-sex marriage, but also believe that this is the sort of question entrusted to state governments under our constitutional system, and that, as with many questions of social policy about which I have strong preferences, different states are and should be free to come to different conclusions on the matter. I also believe that as more states elect to recognize gay marriage (particularly insofar as this is done by legislatures and ballot initiatives, rather than by courts) many of those who are currently uneasy with the idea of gay marriage will learn they have nothing to fear and opposition to gay marriage will slowly melt away.

The problem with the President’s position is that it cannot be reconciled with the Administration’s stance on the constitutionality of the Defense of Marriage Act. According to Attorney General Eric Holder, he and the President concluded that the constitutionality of legal distinctions based upon sexual preference cannot be defended. In their view, because DOMA precludes federal recognition of same-sex marriages, it violates the constitutional guarantee of equal protection under the Fifth Amendment. Further, according to Holder’s statement, they concluded that no “reasonable” constitutional argument could be made in DOMA’s defense. Yet if DOMA is unconstitutional under equal protection, which applies to the state and federal governments equally, then how could any state law barring recognition of same-sex marriages survive constitutional scrutiny? In other words, while the President says he believes that states should be allowed to reach “different conclusions at different times” on the question of same-sex marriage, the administration’s legal position is that a state’s refusal to treat opposite-sex and same-sex couples alike is unconstitutional. So while the President may say he’d like to leave this question to the states, that’s an option his administration has already taken off the table.

[NOTE: Edited the post to make clear that equal protectioon is guaranteed as against the federal government through the Fifth Amendment and as against the states through the 14th Amendment, but the standard is the same.]

UPDATE: Here’s the full ABC transcript, in which the President suggests he was also influenced by a concern that DOMA federalizes a traditional state concern. Lyle Denniston comments here, suggesting the President’s legal position does not threaten state laws. Calvin Massey disagrees here. Massey is right.

The official statements from the Justice Department do not raise any federalism concerns and rest the conclusion that DOMA is unconstitutional (and that no reasonable arguments may be made in its defense) on the basis that distinctions based on sexual preference are subject to intermediate scrutiny, that there are no important government interests in maintaining a traditional definition of marriage, and that animus may have contributed to DOMA’s passage. While there are other arguments that could challenge DOMA without threatening state laws (such as those suggested by Will Baude), the Adminsitration’s arguments, were they to prevail against DOMA, would be the death knell for state laws as well. If a federal law supported by Senators Biden, Dodd, Reid and Wellstone — and signed into law by President Clinton — were impermissibly tainted by anti-gay animus, it’s hard to see how state laws barring same-sex marriage would not be as well.

President Obama’s recent announcement that he supports gay marriage is yet another addition to the short but distinguished list of issues on which the President and I agree.

Previous entries include creating a playoff system for college football, allowing gays and lesbians to serve openly in the military, ending the home mortgage interest deduction for high-income taxpayers (though I would go further and abolish the deduction for everyone), the president’s authority to forego defending federal statutes he believes to be unconstitutional, the legality of the targeted killing of Osama Bin Laden, the end of the NBA lockout, and that the Obama health care plan’s individual mandate is not a tax. Based on the above, it seems that the biggest areas of overlap between our worldviews are gay rights and sports. But the list is not completely exhaustive, since there are a few other issues where we also agree, but I don’t blog about them because they are too far outside my areas of interest and expertise.

UPDATE: A somewhat overwrought critique of this post takes me to task for supposedly being unaware of numerous largely noncontroversial things that Obama and I agree on, such as that genocide is evil or that Hitler and Stalin were great villains. I’m well aware of these areas of agreement, thank you. But this post was about issues on which Obama and I agree, which means questions that are controversial in modern American politics. The fact that Obama and I agree on many things on which there is an overwhelming national consensus isn’t relevant to that. We also agree that the Earth is round, and that the Sun rises in the East.

Today the President of the United States explicitly endorsed the idea that gay couples and their families should have the freedom to marry.  He had already done so as a practical matter by refusing to defend the constitutionality of what he carefully mislabelled the “Defense Against Marriage Act” and by publicly opposing state constitutional amendments against marriage.  But in the past he had said he personally opposed gay marriage because “God is in the mix.”  Jon Rauch has some thoughts about the Obama evolution toward support:

What happened? Harry Truman was fond of quoting Mark Twain: “When in doubt, do right. This will gratify some people and astonish the rest.” Now and then, politicians have a “goddammit” moment. Obama’s position had clearly shifted on the issue (who was he kidding with his talk of having “evolved” but being unwilling to make news?), and there was never going to be a better time to make the switch than now–at least not while he is certain to be a non-lame-duck president.

So Obama decided it’s worth a roll of the dice to make history. Which is what he has done.

As of his announcement, favoring gay marriage is now fully, indisputably, and permanently a mainstream political position. All hint of weirdness or stigma is gone. It is also now the stated position of one of the two major political parties (only 16 years after President Bill Clinton, a Democrat, signed the anti-gay-marriage Defense of Marriage Act). Precisely because the issue is unlikely to decide the election this year, November’s result will not revoke the issue’s promotion in status even if Obama loses. Though gay couples have not achieved full legal equality, gay marriage, as an issue, has achieved full political equality. That is a landmark in the ongoing marriage debate.

Rauch goes on to speculate that Obama’s statement might influence the Justices should the Prop 8 case or DOMA litigation reach them.  That’s possible, but I’m dubious. This Supreme Court has not been shy about disagreeing with the Executive Branch.  For goodness’ sake, Justice Alito delivered a visual advisory opinion to him during the State of the Union speech days after the Citizens United decision. I think they’ll decide the issue independently of what President Obama, or President Romney, personally thinks about it. The bigger constitutional landmark was the Obama Justice Department’s conclusion that DOMA is unconstitutional because it cannot meet the heightened scrutiny that the DOJ argued is applicable to discrimination based on sexual orientation.

The rest of what Rauch says, however, seems spot on to me.  It’s easy to be cynical about everything politicians do, and I yield to few people in my skepticism of officeholders.  I spoke to many Minnesota lawmakers last year who voted to place an anti-gay marriage limitation on the ballot, yet privately expressed their misgivings about it. President Obama himself has a tortured public history on the issue, moving from support when he ran for state office in 1996, to opposition when he ran for U.S. Senate in 2004 and president in 2008, to support now.  It’s obvious that he privately supported gay marriage for years, so his evolution was for public consumption.

Nevertheless, watching him closely on TV, I had a hard time mustering cynicism about the president’s words.  He must know his public support is not obviously a net political plus for him in November.  And his description today of his discussions with his family, his experience of talking to young adults (including young Republicans) for whom opposition to gay marriage is baffling, and his understanding of the hardships faced by gay families, including those headed by openly gay servicemembers, seemed genuine.  His words echoed the conclusions now reached by about half of the American people.  On this issue, as on others, the president may be leading from behind.  But it matters when presidents lead, as when Lyndon Johnson declared civil rights a “moral issue” and announced on national television, “We shall overcome.”  The president’s endorsement won’t matter to people who’ve made up their minds to oppose marriage for gay couples, but many others are listening.

Tommorrow from noon to 1 PM Pacific time (3-4 Eastern), I will be appearing on Bob Zadek’s talk radio show in San Francisco to talk about the gay marriage litigation and other related issues. Zadek is a libertarian political commentator and lawyer who hosts a weekly talk show devoted to various political and legal issues. Details on how to listen and call in are available here, including a way to listen through the internet if you are in the San Francisco area.

For my argument that bans on gay marriage are constitutionally suspect because they discriminate on the basis of sex, see here and here. In this series of posts from 2008-09, I explained why gay marriage lawsuits (at least at the state level) have been a net plus for the cause of gay rights, despite the political backlash that they generated.

We will likely discuss both questions during the show, as well as others, such as whether or not government should be involved in the business of defining marriage at all.

Georgetown Law Professor David Cole has a terrific review of my new book, Flagrant Conduct: The Story of Lawrence v. Texas (Norton) in the April 5 issue of the NYRB. Cole presents the basic background, including what likely happened the night John Lawrence and Tyron Garner were arrested for the crime of “Homosexual Conduct,” a Texas law that forbade oral and anal sex for same-sex couples but not for opposite-sex couples. A similar Georgia law had been upheld in Bowers v. Hardwick (1986), which the Lawrence Court reversed.  Cole notes that it was unusual enough for the Court to recognize its own error:

But for it to happen in a mere seventeen years, the equivalent of a nanosecond in the “Jarndyce and Jarndyce” tempo of constitutional law, is nothing short of extraordinary. The story of how it happened is one of the great success stories of public interest law. It shows what a carefully orchestrated litigation campaign can do when supported by a passionate and growing social movement. At the same time, it offers a cautionary tale for the current controversy over the recognition of same-sex marriage, which may soon be headed, prematurely, to the Supreme Court.

The Supreme Court’s 2003 decision in Lawrence v. Texas devoted a scant paragraph to an anodyne description of the facts of the case, barely mentioned the defendants, and described their alleged conduct only as “a sexual act.” The Court was evidently more at ease with the nuances of constitutional jurisprudence than with the messy details of the case. Dale Carpenter’s Flagrant Conduct fills in the gaps, and provides a rich, meticulous, and fascinating account of the most important constitutional decision so far on the status of gays and lesbians in American society.

Unlike the Court, Carpenter revels in the factual details and the personalities involved in the struggle, as he takes us from the recesses of a private bedroom in a seedy condominium on the outskirts of Houston to the oral argument in the grand chamber of the United States Supreme Court. Along the way, he offers sharp insights into the politics, ironies, and strategies behind the Brown v. Board of Education of the gay rights movement.

The Ninth Circuit’s opinion in Perry v. Brown pushes hard to apply Romer v. Evans to the Prop 8 litigation.  The panel noted that the grant of full marital and parental rights to same-sex couples, while simultaneously denying them the word “marriage,” excised gay couples and their children with “surgical precision.” But such narrowness was not the problem in Romer; it was the breadth of a law denying a single class all civil-rights protections proved troubling.  Narrowness is usually a virtue in rational-basis review.  How, then, does one explain why a very precise law is unconstitutional?

In an op-ed in today’s Los Angeles Times, I suggest a connection between Perry and Lawrence v. Texas, which struck down the Texas “Homosexual Counduct” law.  While Perry was as an equal protection case, the due process holding of Lawrence actually seems closer to the “surgical precision” concern than does the equal protection holding in Romer.  Here is an excerpt from the op-ed:

If Proposition 8 is ultimately declared constitutionally unacceptable by the Supreme Court, it might have to reach beyond Romer, to a decision mentioned only sparingly by the 9th Circuit. That is the Supreme Court’s decision in Lawrence vs. Texas, which struck down a law banning homosexual sex.

The sorry history of this country’s legalized discrimination against homosexuals is striking for the absence of reasoned justifications, for arbitrary lines between conduct allowed and conduct forbidden, and for a tendency to use the asserted immorality of homosexual acts to justify widespread opprobrium of homosexuals. History certainly suggests that an unreasoning prejudice or aversion motivated some laws shutting out gay people.

Texas, for example, prohibited gay sex in 1973 in a so-called homosexual conduct law, but in the very same year the state legalized consensual heterosexual sodomy, adultery and even bestiality. One Texas appeals court judge, a Republican and self-described “country lawyer” who had no schooling in gay rights causes, saw that contradiction as nonsense. In an interview about the Lawrence case, he told me that when it reached his court, he wondered how the state could justify a surgically precise ban on gay sex.

“I kept thinking that if they decriminalized all those things that one would normally say are immoral, then why did they leave this one in? There had to be a reason,” he recalled thinking, obviously still baffled. “And nobody could explain to me why.”

In Lawrence, the court ruled that the state could not impose the majority’s moral code on homosexuals. It could not “demean their existence or control their destiny” by driving them away from relationships. Homosexuals, the court observed, enter relationships for the same reasons heterosexuals do: to share intimacy with a partner, to show affection and obligation, to have and raise children, to establish a place they call home and to love people they call family. California recognized this reality through its broad domestic partnership law.

But just as Texas prosecutors could no longer explain in constitutionally acceptable terms why the law excluded homosexuals from an otherwise transformed codification of sexual morality, the proponents of Proposition 8 cannot explain the titular exclusion of gay couples from an otherwise transformed landscape of family law and marital practice. California has, for very good reasons, abandoned a seamless worldview of legally recognized relationships from which gay couples and their families must be absented. Proposition 8 in California, like the homosexual conduct law in Texas, is an anachronism.

In a thoughtful recent post, co-blogger Dale Carpenter takes issue with my argument that bans on same-sex marriage are best attacked on the grounds that they are unconstitutional sex discrimination, and parts of my post suggesting that a minimalist strategy in the gay marriage litigation is not likely to work. Dale is one of the leading academic experts on the law of same-sex marriage, so I take his points very seriously. Nonetheless, I remain unrepentant.

Dale argues that the sex discrimination argument is flawed because “(1) it obscures the heart of the equal protection issue, continuing exclusion of gay men and lesbians, and (2) it isn’t sufficiently attuned to the Court’s sex-discrimination cases, which do suggest a lower level of scrutiny when legislation addresses ‘real differences’ between men and women (like the capacity to get pregnant or, one might say in the marriage context, the capacity to procreate as a couple).” On the first point, I think this “obscurity” is part of the strength of the argument. The idea that discrimination on the basis of sexual orientation should be subject to strong judicial scrutiny has no roots in the original meaning of the Fourteenth Amendment and only a modest basis in recent precedent (Romer v. Evans). By contrast, sex discrimination has long been subject to heightened scrutiny, and, as I noted in my first post on the subject, there is growing recognition that this is consistent with the original meaning. Most important, as I explained in some detail in the earlier post, laws banning same-sex marriage do not in fact ban anyone from marrying anyone else because of their sexual orientation. Anne is free to marry Bob even if one of them is gay or lesbian. On the other hand, these laws do restrict marriage rights on the basis of gender. Bob cannot marry Colin solely because he is a man. The greatest strength of the sex discrimination argument is that it directly confronts what the anti-same sex marriage laws actually do: limit marriage rights on the basis of gender. Obviously, these laws may well be motivated in large part by hostility towards gays and lesbians. But it is generally easier to attack a law based on its actual text than on the possible motivations behind it.

On Dale’s second point, it is essential to recognize that bans on same-sex marriage do not actually “track ‘real differences’ between men and women.” Yes, only an opposite-sex couple can procreate by natural means. But traditional marriage laws do not deny the right to marry to couples where one partner is sterile, couples that are too old to conceive, and so on. These couples can, of course, acquire children by adoption. But the same goes for same-sex couples.

Dale also attacks my claim that gay rights advocates should make a full-blown argument for the unconstitutionality of same-sex marriage bans in this case because, as I put it, a defeat might “lay the groundwork for a later reversal, much as Bowers v. Hardwick helped set the stage for Lawrence v. Texas.” In his view, Bowers was an unmitigated “calamity” for gay rights because it “was used by courts to deny gay-rights claims in the military, in housing, in public and private employment, in custody, in child visitation, and so on. Politically, the presumptive criminal status of homosexuals was used as a reason to resist every proposal for gay-rights legislation, from hate-crimes laws to marriage, even in states that had no sodomy law.” As I see it, however, all of this would have happened even in the absence of Bowers. Had there been no Bowers, some states would still have retained anti-sodomy laws, and most people would still have assumed that those laws are constitutional. Indeed, the absence of any strong legal challenge to them would have reinforced that assumption. With Bowers, by contrast, anti-sodomy laws were upheld by a shaky 5-4 Supreme Court majority. When the Court splits 5-4 on an important constitutional issue, everyone realizes that that question is far from settled and that the Court might well reverse itself in the future. That’s a net gain for the side that lost the case if that side was the one trying to change the status quo.

Dale ends by suggesting that “Bowers ‘laid the groundwork’ for Lawrence only in the sense that Pearl Harbor paved the way for VJ Day.” This is actually not a bad analogy. Pearl Harbor did in fact lay the groundwork for VJ day. It did so by mobilizing American public opinion against Japan, leading to a strong determination to pursue the war until total victory. In retrospect, launching a surprise attack on Pearl Harbor was a terrible mistake by the Japanese that sealed their doom. Similarly, Bowers outraged liberals and gay rights advocates, while at the same time the narrow margin of defeat led them to realize that they could prevail in the future. And win they did.

A similar happy outcome in Perry is far from certain. Perhaps gay rights advocates will suffer a more lopsided defeat in this case than in Bowers, and thereby become demoralized. As I noted earlier, this lawsuit is probably premature. That said, the tide of opinion is rapidly shifting in favor of gay marriage, and – over time – the balance of power between the two sides will shift as well, even if not as rapidly as the balance between the US and Japan shifted in 1942. It is therefore unlikely that a defeat in Perry v. Brown will set back the cause of gay rights for very long. Perry may indeed turn out to be like Pearl Harbor. But perhaps not in the way Dale supposes.

In a recent post, co-blogger David Bernstein partially rejects my argument that a ban on same-sex marriage qualifies as sex discrimination. As David puts it:

On the one hand, I agree with Ilya that bans on same-sex marriage could be described as sex discrimination. On the other hand, from opponents’ perspective, the point is that “marriage” has been defined for several thousand years in Judeo-Christian culture as between a man and a woman, and retaining that definition is not sex discrimination.

The opponents’ argument, however, in no way refutes mine. Many forms of sex discrimination have “several thousand years” of tradition behind them, often backed by religion. Consider such cases as the exclusion of women from many professions, unequal divorce laws, the treatment of wives and daughters as the property of their husbands and fathers, and so on. The fact that a form of sex discrimination has existed for a long time and enjoys religious backing does not make it any less discriminatory.

I am also unmoved by David’s analogy between a ban on same-sex marriage and a hypothetical Israeli law under which boys are entitled to a state-recognized “bar mitzvah,” while girls only get a “bat mitzvah,” which has the same legal status but is less prestigious. If the bar/bat mitvah were a government-endorsed legal status rather than a private cultural and religious tradition, it would still be sex discrimination for the state to allocate that status on the basis of gender – especially if one of the two labels were in fact more prestigious than the other. I would say much the same thing about David’s hypothetical of a female monarch who wishes to be labeled a “king” rather than a “queen.” These examples only have intuitive appeal because in modern liberal society, we generally regard bar and bat mitzvahs and kings and queens as essentially equal to each other (though I recognize that many Orthodox Jews disagree as to the bar and bat mitzvahs). It therefore seems pedantic to insist on one label or the other. By contrast, most people see “civil union” as a lower status than “marriage,” even if the legal rights are identical.

Consider a law under which men are classified as “first class citizens” and women as “second class citizens.” Although the distinction was originally enacted for the purpose of asserting male dominance, recent legislation has given second class citizens the same substantive legal rights as first class citizens. But first class status remains more prestigious than second class. Assume also that the idea that women cannot be first class citizens is endorsed by thousands of years of religious and secular tradition. If a woman files a lawsuit claiming that the denial of first class citizen status is sex discrimination, she should surely win – at least under a constitution that either bans sex discrimination outright or subjects it to some form of heightened scrutiny.

As I said in my original post on this subject, not all forms of sex discrimination are unconstitutional. Current Supreme Court jurisprudence subjects gender classifications to heightened “intermediate” scrutiny without banning them completely; and I think this is roughly the right approach. If, for example, opponents of same-sex marriage can prove that legalizing it would inflict serious harm on children, then laws such as California Proposition 8 should not be invalidated. But government-sponsored sex discrimination does not become constitutionally permissible merely because it is backed by religion or tradition or because the discriminatory law in question is mostly symbolic in nature.

UPDATE: I have modified this post slightly in order to eliminate a few stylistic problems.

UPDATE #2: David responds to this post in an update to his original one:

Ilya starts his response by misapprehending my point. It’s not that marriage is “traditionally” between a man and a woman, and therefore limiting marriage to such is not sex discrimination. It’s that the very definition of the word “marriage” has, for hundreds or even thousands of year, been limited to relationships between men and women. Therefore, the argument would be that it’s not sex discrimination to limit the scope of state-recognized marriage to what comes within that definition, just like, e.g., it’s not sex discrimination to limit the title of King to men.

I don’t see how calling this a “definition” adds anything to the debate. Once the “definition” becomes a legal status assigned by the state, there is still sex discrimination if the status is awarded on the basis of gender. If the definition of marriage had, for many years been that it is a relationship between members of the same race, a law embodying that definition would still be an example of racial discrimination.

David also writes that “I want to reiterate that I agree that limiting marriage to opposite sex couples can accurately be described as sex discrimination; the question is whether it can also be accurately described in a different way, and if so, whether courts should stick their collective noses in the controversy by choosing which description they prefer.” As I said in the original post, the “different” description in no way undercuts the fact that the state is engaging in sex discrimination. There is no contradiction between the statement that laws against same-sex marriage discriminate on the basis of gender and the statement that they embody a long-standing definition of marriage. These claims are not mutually exclusive in any way, and both are in fact true.

Finally, David states that “if I’m following Ilya’s logic correctly, it would have been sex discrimination to limit the title of King to men, say, fifty years ago, when the title of Queen may have been considered relatively less important, but it’s not sex discrimination today. I don’t buy it. It was, by the logic of Ilya’s original post, sex discrimination then and it is discrimination now to limit the title King to men, but it also was just what the word ‘King’ meant then and now, and therefore not sex discrimination.”

As in the case of marriage, once “king” becomes a legal status as opposed to a mere word, it is sex discrimination if the state restricts that status on the basis of gender. In a society where there is no meaningful difference between the status of “king” and that of “queen,” however, it would not be sex discrimination if one word describes men who hold the position of monarch and the other women. Whether or not such a difference exists depends on various factors, including social context. Therefore, it is perfectly possible that limiting the title of “king” to men was an example of sex discrimination 50 years ago, but not today. In any event, whatever might be said of kings and queens, few today believe that marriages and civil unions are essentially the same thing, except for quirks of linguistic usage. Certainly not the supporters of Proposition 8, who devoted an enormous of effort to trying to pass a law ensuring that same-sex relationships cannot be legally considered marriages.

UPDATE #3: David has another update to his original post where he states:

The underlying purpose and therefore definition of marriage from thousands of years had nothing to do with race. So I agree that if, say, in the 17th century, instead of simply banning interracial marriage, a statute had simply defined marriage as not including interracial pairings that would be clear racial discrimination, even if “traditional”. By contrast, marriage was an existing form of male-female relationship that the state came to recognize…. so it wasn’t the state creating a sex distinction, it was the state recognizing a preexisting institution.

The state did not merely “recognize” a preexisting institution. It enshrined that institution into law and attached various legal privileges to it. The fact that the state’s official definition of marriage codified a preexisting understanding does not make that definition any less discriminatory. Let’s say that the definition of marriage as confined to same-race relationships had also existed “for thousands of years,” and was just as well-established as the definition of marriage as confined to opposite-sex relationships. Would that mean that a statute incorporating that definition into law is not race-discriminatory? Clearly, such a law would qualify as race discrimination, no matter how much people previously thought that marriage is, by definition, intraracial, or how long such a belief had persisted. The same logic applies to legal definitions of marriage that discriminate on the basis of sex rather than race.

On the one hand, I agree with Ilya that bans on same-sex marriage could be described as sex discrimination.  On the other hand, from opponents’ perspective, the point is that “marriage” has been defined for several thousand years in Judeo-Christian culture as between a man and a woman, and retaining that definition is not sex discrimination.

Imagine, for example, that having a bar mitzvah in Israel provided boys with various and important rights and obligations.   [Let me tighten the hypothetical a bit.] Imagine that in Israel, any thirteen year old Jewish boy could go to city hall and get a certificate of bar mitzvah, regardless of whether he had a religious bar mitzvah ceremony, and imagine further that this certificate provides the boys who get it with various important rights and privileges. Israel, recognizing that girls should be entitled to analogous rights, offers girls a [certificate of] bat mitzvah instead.  The bat mitzvah gives girls the same legal rights and obligations as boys, but because it’s not called a bar mitzvah, it’s less culturally significant and, according to critics bespeaks inequality (and in fact, while bar and bat mitzvahs don’t confer legal rights and obligations in Israel, it’s an important religious and cultural tradition. Girls don’t always get a bat mitzvah, and when they do, it’s rarely celebrated with the same vigor or considered as significant as a bar mitzvah in the same family).

A girl sues, demanding that she be entitled to a legally recognized “bar mitzvah.”  On the one hand, Ilya could rightly claim that by definition, denying her access to the status of “bar mitzvah” is sex discrimination.  On the other hand, defenders of limiting legally recognized bar mitzvahs to boys would rejoin that bar mitzvahs by definition, backed by hundreds of years of tradition and culture, are solely for males.

It strikes me that both sides have a point, and most likely the best thing for courts to do under such circumstances, where they’d basically just have to take sides in a culture war pitting feminists against religious and cultural traditionalists, is to stay out of it–so long as analogous rights and obligations are available to the plaintiff through an analogous ceremony certificate, in this hypo the bat mitzvah.

Disclaimer: While I don’t think that courts should recognize a right to same sex marriage by finding that the absence of such a right is sex discrimination, nor do I think courts should even take the position that is must be analyzed as sex discrimination, I support legislation providing for same-sex marriage. I’ll also add the disclaimer that I’m not addressing any other constitutional arguments that states must expand their definition of marriage to include same-sex couples.

UPDATE: Let’s add an interesting hypo to the mix: what if California, instead of having a domestic partnership law, instead created a new legal category called “same sex marriage” that had exactly the same rights and privileges as “marriage”, but every relevant statute that applied to marriage now applies to “marriage and ‘same-sex’ marriage”, or perhaps “‘traditional marriage’” and “‘same sex marriage’”.  Still sex discrimination if same sex couples aren’t eligible for “traditional marriage”? Again, I think that by definition the answer is yes, and by definition the answer is no.

FURTHER UPDATE: New hypo: A small European nation has a constitution that bans any form of sex discrimination.  The King  (who has only ceremonial duties) dies.  His daughter is next in line for the throne.  Even though she’d have the same legal rights, duties, and privileges either way, she demands to be crowned King, not Queen.  She points out that it’s sex discrimination that only men can be called “King”, argues that she will likely get less respect from her subjects if she is called Queen instead of King, and that the distinctions between “King” and “Queen” are rooted ancient patriarchy.  Valid sex discrimination claim?  Once again, my instincts are that (a) this, by definition is sex discrimination [or, more precisely, a classification based on sex and therefore subject to intermediate scrutiny under American law]; and (b) this, by definition, is also NOT sex discrimination, and if I were a judge I’d stay out of it.

RESPONSE TO ILYA: Ilya starts his response by misapprehending my point. It’s not that marriage is “traditionally” between a man and a woman, and therefore limiting marriage to such is not sex discrimination.  It’s that the very definition of the word “marriage” has, for hundreds or even thousands of year, been limited to relationships between men and women.  Therefore, the argument would be that it’s not sex discrimination to limit the scope of state-recognized marriage to what comes within that definition, just like, e.g., it’s not sex discrimination to limit the title of King to men. [And I want to reiterate that I agree that limiting marriage to opposite sex couples can accurately be described as sex discrimination; the question is whether it can also be accurately described in a different way, and if so, whether courts should stick their collective noses in the controversy by choosing which description they prefer.]

And if I’m following Ilya’s logic correctly, it would have been sex discrimination to limit the title of King to men, say, fifty years ago, when the title of Queen may have been considered relatively less important, but it’s not sex discrimination today. I don’t buy it.  It was, by the logic of Ilya’s original post, sex discrimination then and it is discrimination now to limit the title King to men, but it also was just what the word “King”  meant then and now, and therefore not sex discrimination.

If indeed the problem, as Ilya suggests, is that “civil union” doesn’t have the same cultural heft as “marriage,” then I think the argument is that everyone has the fundamental right to get “married,” which is a different argument for constitutionalizing for same sex marriage, and one that I don’t address.

FINAL UPDATE: When I say that marriage “by definition” has been a relationship between a man and a woman, I don’t mean that the government defined it that way.  Rather, the institution evolved, largely outside formal government, to bind a man and woman together into a long-term procreative relationship.  The fact that marriage is often NOT procreative these days (older couples and so on), and the core societal idea of marriage has shifted from pragmatic concerns to “life partner” are good policy arguments in favor of allowing gay marriage.  I don’t think it’s a good argument for denying the fact that the history of marriage and its relationship to the definition makes the equal protection constitutional argument somewhat dubious, as the definition was a result of the core purpose of the institution.  This is quite distinct from the example Ilya gives: “if the definition of marriage had, for many years, been that it is a relationship between members of the same race, a law embodying that definition would still be an example of racial discrimination.”  The underlying purpose and therefore definition of marriage from thousands of years had nothing to do with race. So I agree that if, say, in the 17th century, instead of simply banning interracial marriage, a statute had simply defined marriage as not including interracial pairings that would be clear racial discrimination, even if “traditional”.  By contrast, marriage was an existing form of male-female relationship that the state came to recognize (concubinage was another that has since died out) so it wasn’t the state creating a sex distinction, it was the state recognizing a preexisting institution.

Co-blogger Dale Carpenter argues that Judge Stephen Reinhardt’s recent decision striking down the California gay marriage ban is an attempt at “judicial minimalism” intended to make the outcome acceptable to a Supreme Court that is unlikely to rule that the Constitution requires nation-wide recognition of same-sex marriage. By “lowering the stakes,” Dale argues, Reinhardt gives the Court a way to affirm his ruling.

This may well be Reinhardt’s intention. But I am skeptical that it will work. Whatever one thinks of judicial minimalism generally, there is no minimalist way to strike down Proposition 8. Even if the impact of such a decision were limited to California, that in itself is a huge step. California is a state with some 37 million people. Moreover, the logic of Reinhardt’s decision is that there is no “rational basis” for denying same-sex marriage in a state that already permits same-sex civil unions that give couples the same substantive rights as marriage would. In addition to California, there are seven other states that permit civil unions without legalizing same-sex marriage, including major states such as Hawaii, Illinois, and New Jersey. Many other states are likely to enact civil unions over the next few years, because the idea is very popular, with even a plurality of Republicans supporting it, as of 2010. If the Supreme Court embraces Reinhardt’s reasoning, a state that enacts a civil union law would have to embrace gay marriage as well. That’s not a minimalist result confined to one or a few states, and the Supreme Court justices are likely to realize that.

On the other hand, Dale is probably right to argue that the Supreme Court is not going to rule that the Constitution requires recognition of same-sex marriage at a time when 44 states still forbid it. This suggests that the anti-Prop 8 suit was premature. It would have stood a better chance a decade or two from now, since public and elite opinion are both moving strongly in favor of gay marriage. In the meantime, however, the current lawsuit is likely to fail.

Given this reality, gay marriage advocates might be best served by making the strongest possible constitutional argument for gay marriage rather than trying to engage in “minimalist” hair-splitting that makes them look as if they are trying to evade the real issue, and is unlikely to persuade anyone who isn’t already committed to the cause. The Court might well still uphold Proposition 8. But such a defeat could lay the groundwork for a later reversal, much as Bowers v. Hardwick helped set the stage for Lawrence v. Texas.

In my view, the strongest available argument is that a ban on same-sex marriage qualifies as sex discrimination. Obviously, others will disagree, preferring to base their case on privacy arguments or on claims that discrimination against gays is unconstitutional. Regardless, this is the kind of argument that gay marriage supporters will have to make.

UPDATE: I am, of course, well aware that the anti-Prop 8 plaintiffs have made a variety of broader arguments during the course of the litigation. I do not mean to suggest that they are relying solely on “minimalist” claims. I just wanted to explain why a minimalist victory in this case is unlikely.

In contrast to Judge Walker’s maximalist opinion striking down Prop 8, it’s generally accepted that Judge Reinhardt’s opinion was minimalist.

There’s a commonsense way in which the opinion is not at all minimalist. It reverses the results of a plebiscite, which followed the expenditure of $80 million and the mobilization of millions of voters. It brings full same-sex marriage to a state whose cultural, political, and legal influence on the rest of the country outstrips even its massive population. It’s by far the biggest prize (sorry, New York) in the fight over gay marriage. Advocates on both sides know this. Winning California is not the beginning of the end, but it is at least the end of the beginning.

In legal terms, as well, minimalism may not precisely describe the opinion.  Reinhardt decided that Prop 8 was unconstitutional on Equal Protection grounds only in the specific and unusual circumstances of California, which are not likely to be repeated: full rights and non-marital status given to same-sex couples, followed by court-granted marital status, followed by actual marriages, followed by popular denial of marital status but leaving in place full rights. Whether the opinion can really be cabined to apply only to these unique circumstances is doubtful.  Can you really say, as a colleague of mine commented today, that the state must move you from the middle of the bus to the front, but not from the back of the bus to the front? But suppose the decision really is a constitutional ticket good-for-this-ride-only (like the Supreme Court’s decision in Bush v. Gore). Minimalism is not the narrowest possible ground on which a court can rule.  It’s the narrowest plausible grounds on which a court can rule, with at least some theoretical underpinning that helps us understand it as a principled decision, even if a badly principled decision, rather than as simply an order.  The panel’s decision is not so much under-theorized in the way minimalists love; it hardly has any theory.  It is so minimalist one might call it minisculist.

Here’s a way we might understand what the panel is doing with such a narrow and shallow opinion. For all the complaints about its activism, the Supreme Court usually moves incrementally. For all the complaints about its countermajoritarianism, it rarely resists a strong national consensus for very long. One very crude way to measure the degree of the Court’s activism and countermajoritarianism is to ask, in a given case, how many states have had their public policy thwarted by a Supreme Court decision holding a policy unconstitutional?  On the aggressive end of the spectrum we have Roe v. Wade, now regarded by many commentators on both sides of the issue as having been too aggressive and as unlikely to be repeated barring a radical change in the Court’s composition.  Roe effectively invalidated the abortion laws of all 50 states, none of which were sufficiently liberal for the Court. On the other end of the spectrum we have Griswold v. Connecticut, which invalidated only the novel Connecticut ban on the use of contraceptives — even by married couples.  In between Roe and Griswold on the spectrum, we have sodomy laws, decided against the constitutional claim when 24 states had such laws (Bowers v. Hardwick in 1986) but in favor of the claim when only 13 states had such laws (of which only four applied solely to homosexual sex and none of which were actively enforced) (Lawrence v. Texas in 2003); and we have anti-miscegenation laws, struck down when 16 states still had them (Loving v. Virginia in 1967).

Where does the Prop 8 litigation stand on this spectrum between invalidating 50 state laws and invalidating only one? Using Walker’s logic (including a fundamental right to marry) the Court would effectively invalidate the laws of, at present, 44 states that do not recognize same-sex marriage, thirty of which ban it in their state constitutions.  That puts it close to Roe territory, a land the Court has pretty much stopped inhabiting (see, e.g., Washington v. Glucksberg).

But using Reinhardt’s logic (again, taking it only on its explicit terms, not in terms of the way it might ultimately be used) a Court would strike down only the law in California.  That brings it, on the spectrum of judicial aggressiveness, closer to Griswold than to Roe.  This is one way to understand Reinhardt’s almost complete reliance on Romer v. Evans, which struck down the law of only one state.  In fact, moving the litigation toward the Griswold end of the spectrum makes it somewhat less likely that the Court will even hear the case, though I share the expectation of my co-Conspirators that the Court is likely to review the issue.  I don’t want to suggest that in its constitutional decisionmaking the Court simply tallies the number of states it has to take on and then decides to act based on the breadth and depth of the likely backlash. That would be reductive and unfair, when in fact I believe the Justices are thoughtful and try to be principled. But it’s hard to believe that considerations of backlash and a welcome humility in the face of a deep national consensus play no role in the Court’s decisionmaking.

Reinhardt’s way of deciding the case does mean that a win for same-sex marriage advocates (through a denial of cert or a Reinhardt-style Supreme Court opinion) is less complete, at least in the immediate future.  More litigation, and more appeals, testing the logic would follow for years, even if the end result is pretty clear.  But it also means that a loss in the Supreme Court could be much more narrow, potentially rejecting only what Jason Mazzone has quite persuasively argued is a strained reading of Romer. Other, more completely theorized, arguments for same-sex marriage based on sex discrimination (which Ilya prefers) or sexual orientation discrimination (which others find more persuasive) or the denial of a fundamental right (as Walker believed) would still be open.  In this way, Reinhardt’s opinion lowers the stakes for same-sex marriage advocates even as it hands them potentially the most important victory yet.

Today’s Ninth Circuit decision striking down California’s Proposition 8 banning same-sex marriage is unpersuasive because it claims that the law fails to meet even minimal “rational basis” scrutiny. Eugene Volokh does a good job of explaining why. But there is an alternative constitutional rationale for striking down same-sex marriage bans that avoids this problem. Proposition 8 is an example of sex discrimination, and must be evaluated under the higher standards of scrutiny applied to gender discrimination by the Supreme Court.

Although the sex discrimination argument has been advanced by several academic advocates of gay marriage, nonacademics tend to be skeptical because the same-sex marriage bans seem to be targeted against gays, not men or women. Hostility towards gays is certainly part of the motivation for bans on same-sex marriage. But that does not prevent these laws from qualifying as sex discrimination. In terms of the way the law is actually structured, a same-sex marriage ban in fact discriminates on the basis of gender rather than orientation. And it is perfectly possible to discriminate on the basis of sex even if the motivation for doing so is something other than sexism.

Consider the hypothetical case of Anne, Bob, and Colin. If same-sex marriage is forbidden, Anne is allowed to marry Colin, but Bob cannot do so. This is so even if Anne and Bob are identical in every respect other than gender. Bob is denied the legal right to marry Colin (and all other men) solely because he is a man. Denial of a legal right solely on the basis of gender is the very essence of sex discrimination.

By contrast, sexual orientation actually has no effect on the way the law operates. Anne is still allowed to marry Colin, even if one of them happens to be gay or lesbian. Bob is denied that right regardless of his sexual orientation. There are actually lots of real world cases where gays or lesbians have entered into opposite-sex marriages, such as the famous example of former New Jersey Governor James McGreevey, a closeted gay man who was married to a woman for many years. McGreevey’s marriage was not illegal, even if his actions were morally dubious.

All of this simply underscores the reality that a ban on same-sex marriage discriminates on the basis of gender rather than orientation – even if the motivation for the discrimination is hostility towards gays and lesbians. Under the Supreme Court’s approach to sex discrimination, any “statutory classifications that distinguish between males and females” are subject to heightened judicial scrutiny. A ban on same-sex marriage pretty obviously “distinguish[es] between males and females.”

Although a ban on same-sex marriage qualifies as sex discrimination, it is not automatically unconstitutional. Since the 1970s, the Supreme Court has taken the view that laws that discriminate on the basis of sex do not violate the Constitution if they can pass “intermediate scrutiny,” which requires them to be “substantially related” to an “important state interest.” If opponents of same-sex marriage are right to claim that Western civilization will fall into deep decline if the practice is allowed, that would be enough to pass the test. Ditto if they can show that same-sex marriage somehow inflicts severe harm on children. But any such arguments would be subject to detailed judicial scrutiny. They would have to be backed by real evidence, and could not pass muster just by being minimally plausible, as under the “rational basis” test.

Some originalists might reject my argument on the grounds that sex discrimination itself is not really banned by the original meaning of the Fourteenth Amendment. I criticized such arguments in this post. For a much more comprehensive rebuttal, see this important recent article by Steven Calabresi and Julia Rickert.

A more moderate originalist critique of my position might hinge on the idea that the framers of the Amendment would not have thought of a same-sex marriage ban as sex discrimination. But it is not hard to figure out that a law under which a legal right is dependent on gender discriminates on the basis of sex. The Framers surely thought that this was justifiable sex discrimination. But that does not mean that it isn’t sex discrimination at all. If asked whether marriage laws circa 1868 limited the right to marry on the basis of gender, most people at the time would surely have said yes. And, as in the case of occupational discrimination against women, the Framers’ view that this form of sex discrimination is constitutionally permissible hinged on dubious factual assumptions that we are not bound by today.

In sum, a ban on same-sex marriage easily qualifies as sex discrimination and is therefore subject to heightened judicial scrutiny. Whether it could withstand such scrutiny is a question I leave to others, though I am skeptical about its chances.

UPDATE: Many commenters seem to be assuming that, in order for a law to qualify as sex discrimination, it has to be motivated by hostility to men or women. Not so. As the Supreme Court puts it, a law can qualify as unconstitutional sex discrimination so long as it is a”statutory classification… that distinguish between males and females.” Similarly, a racial classification counts as racial discrimination for constitutional purposes even if the motives behind it are benign.

It is also not true that a ban on same-sex marriage avoids qualifying as sex discrimination because it affects members of both genders. It still denies rights to both men and women solely on account of their sex. The fact that Bob cannot marry Colin solely on account of gender is not somehow “balanced” by the fact that Anne is similarly forbidden to marry Carol. Similarly, a law banning interracial marriage still qualifies as race discrimination even though both blacks and whites are barred from marrying members of the other racial group.

The Ninth Circuit’s opinion on the constitutionality of Prop 8 is expected tomorrow.  Chris Geidner summarizes the issues the panel may address:

The long anticipated appeals court ruling is expected to address three issues: (1) whether former U.S. District Court Judge Vaughn Walker should have recused himself from hearing the case because he is gay and had a long-time partner with whom he was not married; (2) whether the proponents of Proposition 8 have the right to appeal Walker’s decision striking down Proposition 8 as unconstitutional when none of the state defendants chose to do so; and (3) whether, if Walker did not need to recuse himself and the proponents do have the right to appeal, Walker was correct that Proposition 8 violates Californians’ due process and equal protection rights guaranteed in the U.S. Constitution.

John Corvino, a philosophy professor, notes a potential complication for Newt Gingrich’s claim that he has repented, namely, that he continues to commit adultery in the form of remarriage:

Gingrich speaks with a straight face about the sanctity of “one man, one woman” marriage. . .  His defenders from the religious right . . . claim that Jesus offers forgiveness and redemption to repentant sinners. Presumably, in their minds, anyone in a committed same-sex relationship counts as unrepentant. . . . 

Yes, the Bible speaks of forgiveness and redemption. But if marriage really is “until death do us part,” then Gingrich is still committing adultery with Callista. But don’t take my word for it, take Jesus’:

“Whoever divorces his wife and marries another commits adultery against her; and if she divorces her husband and marries another, she commits adultery.” (Mark 10: 11-12)

This double standard is worth pointing out, frequently, publicly and forcefully. 

Under the traditional natural-law and Catholic view, marriage is the union of one man and one woman for life. Nevertheless, those who commit adultery and get divorced are certainly not disqualified from the presidency. More to the point, under the civil law, we even permit them to marry. 

I assume Gingrich agrees that this latter violation of the natural law — divorce and remarriage — should be allowed under civil law.  (It would be interesting to know if he does not.)  Yet he has certainly not joined a crusade of constitutional amendment-making to prohibit divorce and remarriage, nor so much as uttered a word in support of such an effort. He wants his own preferred marriage practices to be free and legal, but wants to prohibit the marriages of same-sex couples.  I can imagine reasons for that distinction, but Gingrich has never explained them before the audiences that drown him in cheers. And I am at a loss to find a justification for supporting civil remarriage — while opposing civil gay marriage – in the religious and philosophical teachings he claims as his own.

Conor Friedersdorf has a pretty good take-down of Rick Santorum’s reasons for opposing same-sex marriage.  Friedersdorf evidently supports same-sex marriage for culturally conservative reasons (praising marriage and its value to families, wanting to preserve it).  Santorum’s argument against same-sex marriage, on the other hand, is little more than an assertion of authority and definition.  Santorum writes:

A husband is a man who commits to a woman, to her and any children she may give him. He commits to his wife without any reservations, to share with her all his worldly goods and to exclude all others from this intimate communion of life. From this vow of marriage comes a wonderful and unique good: any children their union creates will have a mom and a dad united in love, in one family.

Friedersdorf responds by pointing out the wide gap between these assertions about marriage and the actual practice and legal requirements of marriage:

That’s a vision of sacramental marriage, but it ain’t civil marriage in these United States. In civil marriage, prenuptial agreements are permitted, so the man hardly shares all his worldly goods, and plenty of people marry with reservations, and without violating the law when they do so. People write their own vows too. Sometimes they say them in Vulcan! Sometimes they don’t include sexual fidelity, and if they cheat or sleep around with or sans permission they are hardly compelled to divorce. The state keeps on viewing them as being married. Alternatively, it’ll permit them to divorce and marry other people, even if they have kids. So much for “one united family.”

“That’s the special work of marriage in law — to connect things that otherwise fray and fragment: love, life, money, moms, and dads,” Santorum says. Interestingly, gay people are sometimes moms and dads, and the ones who want to marry typically seek material and emotional security — just like straight people, they’re trying to prevent love and money from fraying.

This time we were debating a proposed amendment to the Minnesota state constitution banning same-sex marriages, although the focus was on the merits of same-sex marriage itself.  The debate was held at the University of St. Thomas Law School in Minneapolis and was hosted by the Terence J. Murphy Institute for Catholic Thought, Law and Public Policy.  You can view the video here.

This week I’ll be discussing same-sex marriage at two different student chapters of the Federalist Society. One is today at noon at the University of Missouri-Kansas City School of Law. Tomorrow is at 12:30 at the University of Kansas School of Law in Lawrence. In both places, my sparring partner will be Dale Schowengerdt of the Alliance Defense Fund.  The events are open to the public.

This week and next, SCOTUSblog is hosting an online symposium on various aspects of the litigation challenging California’s Proposition 8 and the Defense of Marriage Act.  The expected contributors are well-known combatants in the ongoing national debate over gay marriage:  Carlos Ball, Bob Barr, Thomas Berg, Erwin Chemerinsky, David Cruz, William C. Duncan, John Eastman, William Eskridge, Maggie Gallagher, Charles Fried, Andrew Koppelman, Pamela Karlan, Robert Levy, Laurence Tribe, Brian Raum, Ruthann Robson, Robin Wilson, Kenji Yoshino, and me.  My first contribution is here.  It should be an interesting couple of weeks.

Last Friday, the Justice Department filed its merits brief in Golinski v. U.S. Office of Personnel Management, arguing against dismissal of the suit challenging the constitutionality of Section 3 of the Defense of Marriage Act. [A brief in defense of DOMA and urging dismissal was filed on behalf of the Bipartisan Legal Advisory Group of the U.S. House of Representatives.] This is the first such brief filed by DoJ since the President determined that Section 3 of DOMA was unconstitutional and would no longer be defended by DoJ. Marty Lederman provides some useful context and commentary on the brief here. See also this write-up by Chris Geidner.

They’re not quite registering June brides, but the joyous end of American civilization has legislatively spread to Cook County and the rest of the Land of Lincoln. Starting today, the state is granting all of the rights and privileges of marriage under state law to same-sex couples. 

With all the recent excitement in Minnesota over the effort to ban same-sex marriages in the state constitution, I neglected to mention that civil unions have also been legislatively approved in Delaware (effective January 1).  It’s the eighth state to provide comprehensive recognition to same-sex relationships under the title of civil union or domestic partnership. Five states recognize same-sex marriages. A few others provide a more limited set of legal protections.

Last night the Minnesota legislature capped a three-week end-of-session effort to ban same-sex marriage.  The state senate approved the amendment on May 11.  It then went to the state house of representatives. In the end, the vote was 70-62 in favor, two more than the 68 needed for passage onto the ballot.  Sixty-eight Republicans (the exact number needed) and two Democrats voted for it.  Four Republicans voted against it, putting their legislative careers on the line, as did 58 Democrats, some of whom represent socially conservative districts. 

The debate lasted more than five hours. You can watch it here, beginning at the 22:30 mark.  (In the background you can hear the chants and songs of hundreds of amendment opponents outside the chamber.)  But debate really isn’t the word for it. As happened in the committee hearings prior to the floor votes, no amendment supporters other than the sponsor spoke up in favor of it.  Even he offered no substantive defense of it, saying only that the people should be allowed to decide the issue.  They sat there, said nothing, and voted “yes.”  There was political calculation in that silence, to be sure, but having talked with many legislators I also know there was some shame in it. 

On the other side, there was a speech by first-term Rep. John Kriesel (R-Cottage Grove), a war hero, that should be remembered when the history of the same-sex marriage movement is finally written. It’s the “Hell No” speech, and can be found here.

During the debate, amendment opponents sang, chanted, and watched the proceedings on monitors.  They sang songs like Amazing Grace, This Land Is Your Land, the National Anthem, and most memorably for me, We Shall Overcome.  Below was the first rendition of many last night.  Forgive the shaky video, my hands were trembling as I tried to record the moment:

Eighteen months from now, on November 6, 2012, Minnesota will become the first state to reject one of these amendments.

Today there’s a reasonable chance the Minnesota House of Representatives will be debating a proposed constitutional amendment defining marriage as the union of one man and one woman.  Since the session ends Monday, such a debate would need to happen soon, if it is going to happen at all.  With Republicans holding a 72-62 edge in the house it had been thought by nearly everyone that passage was a foregone conclusion, but there has been a bump or two or three along the way, with two Republicans openly opposing the ban and others refusing to say how they will vote.   In committee hearings and in the senate floor debate last week, amendment supporters were almost silent — offering no substantive arguments against gay marriage — while opponents railed against the ban in speech after speech.  It will be interesting to see if pro-amendment lawmakers continue to sit on their hands today.

The amendment has already passed the state senate and if it passes with a majority in the house it will be placed on the ballot for voter approval in Nov. 2012.   The house is in recess until 12:00 Noon central time today.  After that you can watch the session live here.

UPDATE:  Expect debate on the amendment to begin no earlier than 6 p.m., assuming it comes to the floor tonight, which now seems likely.  This may be close.

On the floor of the state senate last week, the sponsor of an amendment defining marriage as the union of one man and one woman was asked by a colleague how the amendment would protect her marriage:

For the full context of the exchange between the senators, see here.  The state senate then voted to pass the amendment, 38-27.

The BLT Blog notes a story in The Daily Report (for subscribers only) that suggests the flap over King & Spalding’s on-and-off representation of the House of Representatives in DOMA litigation was due to a misunderstanding about the firm’s internal vetting process. The story quotes a statement from K&S partner J. Sedwick “Wick” Sellers, who heads the firm’s Washington, D.C. office. The statement is as follows:

Although our chairman Robert Hays has issued a short statement saying he assumed ultimate responsibility for any mistakes that were made, I want to make sure the record is clear that I was the member of firm management in primary contact with Paul Clement regarding this matter. As I have reflected on this, despite the fact that our standard client/matter review process was not followed, it was reasonable for him to believe that the firm would accept the matter. This was an unfortunate misunderstanding with a friend whom I personally recruited to the firm and strongly supported. I am deeply disappointed by Paul’s departure and regret the breakdown in communications.

According to the story, Clement signed the agreement with the House of Representatives under the apparently mistaken assumption that the firm would approve of the representation, but before it had been formally vetted and approved.

The GOP sweep in Minnesota last fall was a mile wide and an inch deep.  A switch of a few hundred votes in a few key districts would have left the house and senate in Democratic hands. Republicans won on promises to balance the budget, limit taxes and spending, and make the state more business-friendly. Social issues were almost totally absent from the campaign. Nevertheless, a constitutional amendment excluding gay couples and their families from marriage has been making its way quickly through the Minnesota legislature. If approved, it would go on the ballot in November 2012 in a popular referendum, where it would have to get a majority of all votes cast in a high turnout year. It had seemed the amendment would sail through the state legislature. But now it faces rising Republican opposition. 

The GOP objectors publicly known so far include a state senator who voted in committee to table the amendment on Friday.  Last year, she called an anti-gay marriage amendment “a sword to hurt people, to identify people as different and create disparities.”

Also opposed is a GOP house member, a veteran who lost his legs in Iraq. He has publicly said that he “learned the hard way” that you only live once and it’s important to find someone you love.  He called the proposed amendment ”just wrong,” and declared, “There is not anything that can move me on this.” Apparently, if you’ve faced death in combat, the prospect of a primary opponent doesn’t intimidate you.

Other Republican legislators have questioned the need to constitionalize the issue. At the very least, there is considerable doubt about pushing it right now in the middle of a budget battle with the Democratic governor — it’s a distraction from the party’s core message and agenda. The amendment could be taken up next year and still appear on the 2012 ballot.

In this morning’s Minneapolis Star-Tribune, former Bush White House Counsel and a colleague of mine, Richard Painter, makes the Republican case against a proposed amendment banning same-sex marriage.  Painter opposes the amendment as a matter of principle, good politics, and business:

Minnesota marriage laws have been well-settled for a long time. Marriages must be between a man and a woman. There is no indication that state courts will wade into this area and legislate from the bench, and there is very little chance that the Minnesota Supreme Court would allow them to do so. . . .

Furthermore, the proposed amendment would force Minnesotans to engage in a divisive debate over a ballot measure. That debate would be particularly damaging for Republicans, who are divided on this issue.

The debate would also be costly and might encourage outside organizations to pour money into Minnesota — not only to defeat the ballot measure but to defeat Republican candidates. . . . 

Yet another danger is the damage this ballot measure could inflict on our economy. At present, Minnesota does not stand out among states that do not allow same-sex marriage.

We are not viewed as “homophobic” because we refuse to change existing law. If, however, we ask all Minnesotans to vote on the definition of marriage in 2012, it is certain that one side or the other will be dissatisfied with the result.

Companies with employees who feel strongly on this issue will not want to locate here.

At a time when many Minnesotans are unemployed and business owners are struggling with lagging sales and rising costs, we do not need a ballot measure on a divisive social issue that drives people away from our state.

Minnesota should send the message that we are open for business — that we are open to all people — and that we are serious about promoting the interests of businesses and their employees. This ballot measure does exactly the opposite.

If the issue reaches the floor of either the house or senate it would likely happen this coming week.