Archive | Gay Marriage

SSM in Mexico

While we’ve been focusing on whether proponent-intervenors have standing under Article III to defend a citizen initiative, gay marriage is taking hold in Mexico. Over the past few weeks, that country’s supreme court has decided three important cases on the issue.  On March 4, Mexico City’s council voted to recognize SSM. In the first of its decisions, the supreme court agreed that Mexico City had the power to recognize SSMs under that country’s federalist system.  Second, it held that such marriages are valid throughout the country. Today, it held that Mexico City had the power to include adoptions by same-sex couples in its marriage law.

This isn’t the same thing as saying that Mexico now fully recognizes gay marriages in the way that, say, Canada does. But it appears that we’re pretty close, since Mexico City undoubtedly has the country’s greatest concentration of gay couples and it seems relatively easy for couples from other parts of the country to obtain a marriage license there.  I’d welcome any insights on the latter point, especially, by those who actually know something about marriage law there. […]

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More on Standing to Defend Prop. 8

There are quite a few interesting posts on the standing issues in Perry v. Schwarzenegger, including pieces by the following:

Having thought about the question a little bit more, I think that the defenders of Proposition 8 do have standing to appeal the decision, just as they had standing to intervene, and that even if they do not, the officials of Imperial County would, and should have been permitted to intervene.  Although I generally support a rather narrow view of standing, I largely agree with Michael Dorf that it would be anomalous were state officials able to effectively nullify state ballot initiatives simply by refusing to defend such initiatives in Court.  Further, I think the interest of the proposition’s defenders on appeal is equivalent to that of an initiative’s sponsors who could file suit  to ensure their initiative appears on the ballot in the first place.

Assuming the U.S. Court of Appeals for the Ninth Circuit disagrees, what are the consequences?  As I suggested in my prior post, I think that if Prop. 8’s proponents lack standing to appeal, then they lacked the standing to intervene [as primary defendants], and the trial proceedings were held in error.  The district court still had jurisdiction over the case, but the trial was invalid.  The proper remedy, I believe, would be to vacate Judge Walker’s decision and remand for additional proceedings.  Barring the successful intervention by a party with standing (or a change of heart by the state), this would produce an almost identical outcome.  If the state defendants did not consent to an adverse judgment, Judge Walker would enter a default judgment on behalf of the plaintiffs or grant a motion […]

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Standing to Defend Prop. 8

On Thursday, Judge Vaughn Walker denied gay marraige opponents’ motion for a stay of his ruling in Perry v. Schwarzenegger declaring Proposition 8 to be unconstitutional.  One of the reasons offered by Judge Walker was that he doubts whether Prop. 8’s defenders have standing to appeal his ruling.  Although Judge Walker allowed them to intervene in the case to defend the ballot proposition’s constitutionality when California Attorney General Jerry Brown refused, he does not think they have the requisite interest in the case to satisfy the requirements of Article III standing. This raises some interesing issues, which I discuss below the fold. […]

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Is Judge Walker’s Opinion Really that Compelling?

By now I’ve read dozens of blog posts and commentaries attesting to the power and persuasiveness of Judge Walker’s opinion striking down California’s Proposition 8 barring gay marriage.  But as far as I can tell, everyone I’ve seen take this position was predisposed to accept Judge Walker’s conclusion.  Lots of supporters of gay marriage and academics who believe it is a constitutional right celebrate the force of Judge Walker’s reasoning.  But what I have yet to see is someone who opposed the legal arguments, or at least approached them as a skeptic, announcing that Judge Walker’s opinion has changed, or at least shaken, their views on the matter.  In other words, the commentary on Judge Walker’s opinion is a perfect example of confirmation bias.

I support gay marriage.  Marriage, in my view, is first and foremost a private institution and insofar as the state has anything to say in who gets married, I don’t think it should distinguish between gay and straight couples.  If two men or two women want to solemnize their love for one another, the government should not stand in their way.  I’ve also been convinced by Dale Carpenter’s arguments that recognizing gay marriage is the prudent — and dare I say “conservative” — thing to do.  But I am not convinced that gay marriage is required by the 14th Amendment, and Judge Walker’s opinion has not changed my view.  He makes many sweeping pronouncements and factual findings with which I agree, but I don’t think his opinion rests on particularly solid legal ground, let alone a proper interpretation of the constitution’s text.  It may well be perfect pitch to Justice Kennedy, but predicting the inclinations of one idiosyncratic justice is not a particularly good measure of a legal argument’s intrinsic force.  So while some fiind […]

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DOMA case and the Tenth Amendment

Jack Balkin has an interesting post on today’s two Defense of Marriage Act cases from the federal District of Massachusetts, Gill v. Office of Personnel Management, and Massachusetts v. HHS. The latter case found DOMA unconstitutional, as applied to Massachusetts, because DOMA violates the Tenth Amendment by infringing the state’s traditional core sovereign power of defining lawful marriages. The most important parts of the Tenth Amendment analysis are at pages 28-36 of the opinion. Balkin is concerned because the Judge Tauro’s “Tenth Amendment arguments prove entirely too much. As much as liberals might applaud the result, they should be aware that the logic of his arguments, taken seriously, would undermine the constitutionality of wide swaths of federal regulatory programs and seriously constrict federal regulatory power.” In particular:

The modern state depends heavily on the federal government’s taxing and spending powers for many of the benefits that citizens hold dear, including Medicare, Medicaid, Social Security, and the newly passed provisions of the Affordable Care Act. These programs have regulatory effects on state family policies just as much as DOMA does. If DOMA’s direct interference with state prerogatives is beyond federal power, then perhaps any or all of these programs are vulnerable– and unconstitutional– to the extent they interfere with state policies regarding family formation as well. Put differently, Judge Tauro has offered a road map to attack a wide range of federal welfare programs, including health care reform. No matter how much they might like the result in this particular case, this is not a road that liberals want to travel. 

Well, as my former boss, Colorado Attorney General Duane Woodard once put it, “There’s no liberal constitution or conservative constitution. It’s just the Constitution.” The Tenth Amendment is one of the roads that all conscientious American judges must […]

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DOMA Section 3 Unconstitutional, Says Massachusetts District Court

That’s the decision this afternoon, based on equal protection principles applied to the federal government through the Fifth Amendment’s Due Process Clause.  Section 3 of the Defense of Marriage Act of 1996 established a federal definition of marriage for the first time.  This meant that the federal government could refuse to grant validly married same-sex couples the federal benefits and privileges accorded opposite-sex married couples.  I’m still looking at the decision and will probably post soon.

UPDATE: In a companion case, the same judge has ruled that DOMA intrudes on the Tenth Amendment powers of the states.  Very interesting. […]

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Family Research Council update

Perhaps partly in response to my VC post yesterday, the Family Research Council has corrected its prior claim that the conservative pro-gay group GOProud supported national handgun carry reciprocity as a means of advancing interstate recognition of gay marriages. As the FRC now correctly explains, the marriage argument was offered by Missouri Democratic Senator Claire McCaskill, in explaining her vote against the handgun reciprocity proposal.

The FRC also states that it supports the Second Amendment, and points out that it joined an amicus brief in McDonald v. Chicago. […]

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Family Research Council vs. the Second Amendment

A new piece from the Family Research Council blasts Grover Norquist (President of Americans for Tax Reform; Member of the Board of Directors of the National Rifle Association) for joining the board of GOProud, an organization of conservative gay Republicans. Among the alleged sins on the GOProud agenda :

Equalize “concealed carry reciprocity” amendment with gay rights via state rights. Support guns being carried and recognized across state lines, in order to further the agenda that gay marriages legal in only a few states be recognized legally in all. (July 2009)

To FRC’s credit, they link to the endorsement article written by GOProud chairman Christopher Barron. The article says nothing about using national handgun carry license reciprocity as a tool to force states to recognize gay marriage licenses issued in other states. To the contrary, Barron’s article makes the obvious point that national handgun carry will helps gays protect themselves from violent crimes, including gay-bashing.

The FRC article would have been better if it had not made an unsupported claim about Barron’s supposed motive. Rather, the FRC could have more plausibly made the slippery slope argument that, regardless of supporters’  intent, national carry reciprocity might set a precedent for mandatory federal recognition of marriage licenses. I don’t see a strong slippery slope possibility here, but the FRC is free to have its own risk assessment.

And obviously the FRC is free to organize is policy preferences any way it wants. Personally, though, I think that federal legislation which directly protects the Second Amendment rights of all Americans is far more important than whatever tiny effect the bill might have on gay marriage.   (HT: Snowflakes.) […]

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A Leading Judicial Indicator?

While the Supreme Court’s per curiam opinion today deals with legal matters apart from SSM, it is a potentially ominous development for the pro-SSM litigants. The majority here — split along familiar ideological lines, with Justice Kennedy joining (and Orin suggests, writing for) the majority — paints a picture of a district judge and to some extent an appellate court acting hastily and lawlessly to make special rules to favor one side in a single case.  

That may or may not be what the district court did, but that’s what five Justices have concluded.  As an advocate, you’d rather not have the ultimate reviewing court call into question your judge’s objectivity on the third day of trial.

The Court also takes seriously the claims of irreparable harm to anti-SSM witnesses based on criticisms and retaliatory action some claim to have faced after Prop 8 passed. As an advocate, you’d rather not have the ultimate reviewing court see the opposition as David needing protection from your Goliath.

All in all, it’s a bad start for the judicial challenge to Prop 8. […]

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The Impact of Litigation on Prospects for Gay Marriage

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. […]

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Olson’s Conservative Case for Gay Marriage

On the eve of a federal Prop 8 trial in a San Francisco district court, Ted Olson is channeling Andrew Sullivan and Jon Rauch.  I agree with almost all of the essay, which is nicely and powerfully argued, except the idea that it isn’t “too soon” to pursue this in federal court.  An ultimate loss in the Ninth Circuit or the Supreme Court is both likely and would be deflating.  But arguing now against this litigation is like arguing against the tide coming in.

UPDATE:  Sorry I didn’t see Jonathan’s post about this below.  I’ll close comments to allow commentary on that thread. […]

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Ted Olson’s Case for Gay Marriage

Ted Olson explains why he supports gay marriage and has joined with David Boies to file suit to support it.

Many of my fellow conservatives have an almost knee-jerk hostility toward gay marriage. This does not make sense, because same-sex unions promote the values conservatives prize. Marriage is one of the basic building blocks of our neighborhoods and our nation. At its best, it is a stable bond between two individuals who work to create a loving household and a social and economic partnership. We encourage couples to marry because the commitments they make to one another provide benefits not only to themselves but also to their families and communities. Marriage requires thinking beyond one’s own needs. It transforms two individuals into a union based on shared aspirations, and in doing so establishes a formal investment in the well-being of society. The fact that individuals who happen to be gay want to share in this vital social institution is evidence that conservative ideals enjoy widespread acceptance. Conservatives should celebrate this, rather than lament it.

I agree with Olson on policy grounds — as I agree with my co-blogger Dale Carpenter’s “conservative” arguments for gay marriage — but I remain deeply skeptical of the constitutional argument.  I am unconvinced the equal protection clause requires states to recognize same-sex marriages, though I believe the federal government should recognize any marriage recognized under state law.  I also think gay marriage will achieve wider acceptance if it is advanced through democratic processes rather than through the courts.  Litigation strategies are appealing, but they also risk a substantial backlash. […]

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Proposition 8’s Defenders Seek Stay of YouTube Order

Ed Whelan reports that counsel for the sponsors of California’s Proposition 8 — the ballot proposition that overturned gay marriage in the state — have filed an application for a stay of district court Judge Vaughn Walker’s order to have video of the the trial challenging Prop 8 posted on YouTube.  While I have some ambivalence about whether it makes sense to televise judicial proceedings of this sort — and think some of the objections to televising this trial are overwrought — Ed Whelan’s makes a fairly persuasive case that Judge Walker bent the rules to achieve a predetermined outcome, and that his order is of questionable legality.  (If there’s a substantive reponse to Whelan’s account, I’d be happy to post a link.)

UPDATE: More from SCOTUSBlog here. […]

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