Archive | Gay Rights

Assessing the Case Against Gay Marriage

Northwestern University Law Professor Andrew Koppelman recently posted an excellent article assessing recent arguments against gay marriage put forward by leading anti-gay marriage legal scholars and political philosophers. Here is the abstract:

The case for same-sex marriage has been politically triumphant, and its victory looks inevitable. It nonetheless is curiously incomplete. It has succeeded, not because the most sophisticated opposing arguments have been considered and rejected, but because those arguments have not even been understood. Those arguments rest on complex claims, either about what sustains the stability of heterosexual marriages or about what those marriages essentially are. The most familiar claim, that recognition of same-sex marriage jeopardizes the heterosexual family, demands an account of the transformation of family norms in the past half century. Major social change should not be undertaken without a full awareness of what is at stake.

This essay remedies a major gap in the literature. It critically surveys and evaluates the arguments against same-sex marriage. You may not be persuaded by them. In fact, you shouldn’t be persuaded by them. But you need to know what they are.

Koppelman and I are at odds on a wide range of other political and constitutional issues. But I think he’s mostly on target here. As he explains, arguments against gay marriage that do not reduce to simple anti-gay bigotry can be divided into two categories: Claims that gay marriage (and possibly gay sex) is inherently wrong, and claims that it has negative social consequences, such as undermining heterosexual marriage or harming children. The first category of arguments is largely question-begging and incoherent, for reasons Koppelman outlines well. For example, some advocates claim that marriage (and perhaps sex) are only morally defensible if they take a procreative form, but then somehow try to stretch that concept to include relationships […]

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Reassessing the Impact of Pro-Gay Marriage Judicial Decisions

With Rhode Island and Delaware recently becoming the tenth and eleventh states to permit same-sex marriage and Minnesota likely to soon become the twelfth, now is a good time to reconsider the impact of judicial decisions requiring state recognition of gay marriage. The trend towards gay marriage began in 2003, with a Massachusetts Supreme Judicial Court decision holding that the state constitution required recognition of same-sex marriage. At first, nearly all the states that recognized gay marriage did so as a result of judicial decisions rather than legislation. In this way, it seems clear that the cause of gay marriage benefited greatly from judicial action.

Nonetheless, scholars such as Gerald Rosenberg and Jeff Rosen argued that such litigation harmed the cause of gay rights more than it helped it, because it tended to generate a political backlash, a theory that gained some credence in 2008, when Proposition 8 reversed a pro-gay marriage California Supreme Court decision. In a series of posts written in 2008-2009, I argued that such skepticism was unjustified, and that pro-gay marriage judicial decisions were a major net benefit for the cause of gay rights, backlash notwithstanding.

I think recent events largely vindicate my side of this debate. Since early 2009, the number of states legalizing same-sex marriage has grown from four to a soon-to-be twelve, with most of the recent ones doing so through the legislative process. This undercuts claims that judicial action undercuts political action. Public opinion has rapidly moved in a pro-gay marriage direction, undercutting arguments that litigation would turn the public against the cause. And, of course, the Supreme Court might be on the brink of requiring recognition of gay marriage from some or all of the states that still deny it. That is highly unlikely to have happened […]

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No-Protest-Speech Policy at K-12 Schools

From Hatcher v. Desoto County School Dist. Bd. of Ed. (M.D. Fla. Apr. 5, 2013):

Plaintiff [Amber Hatcher] seeks to organize and participate in the National Day of Silence at her high school in an effort to bring attention to the harms associated with bullying and harassment directed at lesbian, gay, bisexual and transgender students…. Plaintiff asserts that school officials interfered with her First Amendment right to do so last year, and have asserted again this year that plaintiff will not be allowed to participate as she proposes….

While there are factual disputes as to what plaintiff requested last year, it is undisputed that the Desoto County High School Principal refused to allow plaintiff to engage in any of her requested activities relating to that year’s National Day of Silence. At least some of these proposed activities were well within the written policy of the School Board, and some required no approval by any school official, e.g., remaining silent outside of class, communicating in writing or by dry erase board outside of class, non-vulgar conversations about the upcoming National Day of Silence.

Plaintiff has also satisfactorily established, based upon the emails of the defendants, that there is an established unwritten policy or practice absolutely banning all “protest” speech at the Desoto County schools that is contrary to the School Board’s written policy and the First Amendment. The Superintendent of the School Board instructed the Principal to inform plaintiff that “[i]t is inconsistent with the district’s past practice to approve student protests on any of our campuses. The attached [request from plaintiff] is disapproved.” The Superintendent also told the Principal that he “did not refer to a specific policy. Since this is classified as a protest, as evidenced by the submitted documents, I will not approve the activity on our


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Proposed California Bill Would Strip Youth Groups’ Sales Tax Exemption If They Discriminate Based on Sexual Orientation or Religious Affiliation

The proposed law, Senate Bill 323 seems pretty clearly aimed at the Boy Scouts, who would lose the exemption unless they reject both their policy against gays and their requirement of belief in God. The sales/use tax exemption is likely not a very big deal for the Scouts, but I take it that there might well be similar proposals with regard to the nonprofit property tax exemption, the charitable institution income tax exemption, and the tax deductibility of contributions to such institutions. (I assume the argument would be, “We already strip these groups of the sales tax exemption, how are the newly proposed property tax/income tax exemptions any different?”)

I doubt that this is a good idea, but I do think it is constitutional: As I’ve argued in my Freedom of Expressive Association and Government Subsidies (2006) that such proposals are constitutional, notwithstanding the groups’ expressive association rights — just as the government may refuse to subsidize, for instance, constitutionally protected abortion, lobbying, or electioneering, so it may refuse to subsidize constitutionally protected expressive association decisions. The Court’s decision in Christian Legal Society v. Martinez (2010) strengthens that argument. And the Court has long held (see, e.g., Taxation With Representation v. Regan (1983)) that tax exemptions are tantamount to subsidies for Free Speech Clause purposes. If this proposal is defeated, it would likely have be to defeated in the political process, not in court. So far, it has cleared a State Senate committee.

Thanks to Nick Lum for the pointer. […]

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Linda Greenhouse’s Misrepresentation of the Federalism Argument Against DOMA

In a recent New York Times column, prominent Supreme Court commentator Linda Greenhouse grossly misrepresents the federalism argument against the Defense of Marriage Act put forward in an amicus brief co-signed by several federalism scholars, including co-bloggers Randy Barnett, Jonathan Adler, Dale Carpenter, and myself. She claims that it is a “Trojan horse” for an effort to block same-sex marriage, and that it is somehow inconsistent with various Supreme Court decisions striking down state laws that violate individual constitutional rights protected by the Fourteenth Amendment:

Beware of conservatives bearing gifts.

Ever since last week’s frustrating Supreme Court argument in the Defense of Marriage Act case, I’ve been wondering whether the attack on DOMA will turn out to be a constitutional Trojan horse. It may bring victory: the demise of a spiteful federal statute, enacted by an opportunistic Congress and signed into law 17 years ago by a cowardly Bill Clinton. But at what price?..

[S]triking down DOMA on federalism grounds is a truly bad idea, and the campaign for marriage equality would be worse off for it. To explain the argument is to reveal its dangers. A ruling that left the states to their own devices when it comes to marriage would take the equal protection guarantee out of the picture…

It would, of course, provide the full benefits of marriage to those living in states that chose to recognize same-sex marriage. But it would snatch away the promise for those living elsewhere, particularly if the decision was based not only on the asserted absence of federal authority but on exaggerated notions of state sovereignty anchored in the Tea Party’s favorite constitutional amendment, the 10th….

Just such a vigorous constitutionally based states’-rights argument was put forward in a brief filed in the case last month by a half-dozen law


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The Court’s Seven Options in the California Same-Sex Marriage Case

Before oral argument in the California Proposition 8 gay marriage case, Georgetown law professor Marty Lederman wrote a post outlining five possible options before the Court; I commented on it here. Since the argument, Lederman believes the number of possible options has grown to seven, as he outlines in this interesting post. The two new options are that “the Court might dismiss the petition as improvidently granted – a “DIG”; or that the Court could vacate the court of appeals’ decision and remand the case for reconsideration in light of whatever the Court does in Windsor, the DOMA case.”

Like most commentators, Lederman predicts there is a substantial likelihood that the justices will dismiss the case for lack of standing. Like me, he still believes there is a good chance the Court will strike down Proposition 8’s ban on same-sex marriage if the justices do make a decision on the merits. […]

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Why Striking Down DOMA on Federalism Grounds Would not Lead to “Litigation Chaos”

In a recent op ed, Harvard Law Professor Noah Feldman argues that striking down the Defense of Marriage Act on federalism grounds – as advocated in an amicus brief I signed along with several other federalism scholars, including co-bloggers Jonathan Adler, Randy Barnett, and Dale Carpenter – would lead to “litigation chaos”:

[T]he problem with this gradual strategy envisioned by court observers and attributed to [Justice] Kennedy is that it would create anomalies leading to a nightmarish barrage of new litigation….

To understand the mess that would result if the court struck down DOMA without finding a general right to same-sex marriage, consider what would happen if the federal government recognized marriages performed in states that allow gay couples to marry while continuing to deny marital status to couples in other states.

In the first, most optimistic scenario, one or several marriage-friendly states might allow anyone from any state to get married there, creating a Las Vegas-style business in same- sex marriage. Gay couples would return to their home states with a piece of paper that should, in principle, entitle them to federal marital tax status, immigration benefits and more. But their home states would probably decline to recognize those out- of-state marriages, and deny them state-level marriage benefits.

If the Supreme Court’s decision to strike down DOMA depended on finding that states have an inherent right to define marriage in which the federal government cannot infringe, then the home states’ policy would probably be upheld. The result would be couples who are both married and unmarried for purposes of the same tax returns, mortgages and hospital visits. Each of these conflicts would be brought to the courts. State and federal courts would probably render divergent conclusions — across all 50 states and 13 federal circuits. If this isn’t


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Reading the Tea Leaves in the Proposition 8 Same-Sex Marriage Oral Argument

Most commentators, including the VC’s own Dale Carpenter, have concluded after the Proposition 8 oral argument that the Supreme Court is unlikely to strike down the California law banning gay marriage. I predicted such an outcome last year, and in this recent post, pointing out that the Supreme Court is unlikely to announce a nationwide right to gay marriage at a time when 41 states still deny it, and that there is no logical way for the Court to justify a “minimalist” decision that would apply to California alone.

Nonetheless, I think many people have been too quick to bury the anti-Proposition 8 cause after Tuesday’s argument. I agree with Dale and others that the Court may well dismiss the case on standing grounds. But if it reaches the merits, it is far from certain that Proposition 8 will survive. As most experts agree, the four liberal justices are likely to vote to strike down Proposition 8. So they would need to pick up only one conservative justice to get a majority. The key swing voter, Justice Anthony Kennedy, expressed skepticism about some of the plaintiffs’ arguments. But he also suggested he is considering the possibility that Proposition might constitute sex discrimination, in which case it would be subject to heightened “intermediate” scrutiny that it probably cannot survive. Moreover, he expressed concern about the 40,000 children being raised by gay and lesbian couples in California. Finally, it is difficult to gauge the impact on Kennedy of a striking concession made by Charles Cooper, the lawyer defending Proposition 8:

JUSTICE SOTOMAYOR: Outside of the -­ outside of the marriage context, can you think of any other rational basis, reason, for a State using sexual orientation as a factor in denying homosexuals benefits or imposing burdens on them?


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How to Figure Out When Laws Banning Same-Sex Marriage Became Unconstitutional and Why the Precise Date May Not Matter

At today’s Proposition 8 oral argument, Justice Scalia asked Ted Olson, the lawyer for the plaintiffs, “when did it become unconstitutional to exclude homosexual couples from marriage? 1791? 1868, when the Fourteenth Amendment was adopted?” The intuition behind Scalia’s question is that if a law would not have been unconstitutional on the day the Fourteenth Amendment was adopted, it cannot be unconstitutional under that Amendment at all.

But the latter doesn’t necessarily follow from the former. Laws that are constitutional at Time X can easily be unconstitutional at Time Y if relevant factual circumstances have changed. This is true not only under “living Constitution” theories, but even under originalism.

I. Originalism and Changing Circumstances.

How could this be so? Whether a law violates the original meaning of the Constitution depends not just on the words of the text, but on relevant factual circumstances. For example, the Fourth Amendment bans “unreasonable” searches and seizures. Whether a search is reasonable depends at least in part on the state of technology, the likelihood that the search will catch a criminal, and other factual circumstances. As technology changes and our knowledge increases, a search that could be considered reasonable at Time A might not be reasonable at Time B, even though the meaning of the Fourth Amendment has not changed at all.

The constitutionality of sex discrimination is a particularly telling example. Steven Calabresi and Julia Rickert have shown that the original meaning of the Fourteenth Amendment constrains discrimination against women if that discrimination lacked a compelling rationale beyond a desire to subordinate them as an inferior “caste.” But 19th century understandings of biology and social science led most people to believe that a wide range of laws discriminating against women were constitutional because they were rational responses to fundamental differences between the […]

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Justice Kennedy on Proposition 8 and Sex Discrimination

In today’s Proposition 8 oral argument on the constitutionality of California’s law banning same-sex marriage, Justice Anthony Kennedy – a key swing voter on the Court – asked whether such a law qualifies as sex discrimination, which he called a ” a difficult question that I’ve been trying to wrestle with”:

JUSTICE KENNEDY: Do you believe this can be treated as a gender-based classification?

MR. COOPER: Your Honor, I -­

JUSTICE KENNEDY: It’s a difficult question that I’ve been trying to wrestle with it.

Charles Cooper, the lawyer for the defenders of Proposition 8 went on to assure Kennedy that it isn’t a gender-based qualification, but didn’t really explain why not. It’s not clear whether Justice Kennedy was satisfied with his answer, because another justice quickly shifted the focus to a different issue.

The issue of whether Proposition 8 qualifies as sex discrimination is indeed “a difficult question” in the sense that the idea seems counterintuitive to many. But once you consider how laws such as Proposition 8 actually work, it’s hard to avoid the conclusion that they clearly do discriminate on the basis of gender, both as a matter of logic, and under the Supreme Court precedent defining sex discrimination. I explained why here:

[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


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Public Opinion and the California Gay Marriage Case

In a recent post, co-blogger Orin Kerr cites a poll showing that 61% of Californians now support gay marriage, and considers the implications of this result for the Supreme Court’s upcoming decision on the constitutionality of California’s ban on gay marriage. He predicts that:

If last year’s debate over the popularity of the Affordable Care Act provides any clues, each side will have its preferred lesson. For those who want the Supreme Court to strike down Prop 8, the poll shows that the Supreme Court can invalidate Prop 8 without causing a major backlash because the law has become very unpopular. For fans of judicial restraint, however, the poll shows that the Supreme Court doesn’t need to invalidate Prop 8 because California voters will almost certainly repeal it themselves.

These are not mutually exclusive claims, and both are probably true. Growing public support for gay marriage makes it likely that the Court could weather any backlash created by a decision striking down Proposition 8. On the other hand, it is also likely that a ballot initiative reversing Proposition 8 will pass in California sometime in the next few years if the Court chooses not to strike Prop 8 down.

I would add a few caveats to Orin’s analysis, however. First, any decision on the constitutionality of Proposition 8 is likely to have an impact that goes well beyond California. Thus, national public opinion is relevant, not just California opinion. A n December Gallup poll of national opinion shows 53% supporting gay marriage with 46% opposed. Recent Pew Research Center surveys show an average 48% in favor, with 43% opposed. This is a major change from earlier years, and support for gay marriage is rapidly increasing. At the same time, however, it is not nearly as high as the […]

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The Supreme Court’s Options in the California Same-Sex Marriage Case

Georgetown law Professor Marty Lederman has a very helpful post outlining the Supreme Court’s options in the case challenging the constitutionality of California’s Proposition 8, which bans same-sex marriage in the state:

[T]hese are the five options offered to the Court:

(i) The Court could uphold the constitutionality of Proposition 8 — that is, hold that states may limit the civil institution of marriage to opposite-sex couples.

(ii) The Court could conclude that the Fourteenth Amendment categorically prohibits states from discriminating against same-sex couples in the conferral of marriage licenses–the so-called “fifty-state holding” (although it would have a practical impact only on the forty-one states that continue to prohibit same-sex marriage).

(iii) Without reaching the question whether a state could justify denying to same-sex couples substantial benefits and privileges that it offers to opposite-sex couples, the Court could conclude that once a state has offered same-sex couples all or virtually all of the incidents of marriage that it offers to similarly situated opposite-sex couples, there is no legitimate justification for denying those couples the status of “marriage” itself . . . and that therefore it is fair to conclude that such a denial is designed only to stigmatize, or to deny respect, on the basis of sexual orientation, which the Constitution forbids. This is the so-called “eight-state solution” suggested by the United States today, which would directly affect only those states (California, Delaware, Hawaii, Illinois, Nevada, New Jersey, Oregon, and Rhode Island) that already treat same-sex couples the same as opposite-sex couples in virtually all ways but one.

(iv) A California-only holding: The Court could hold, as did the court of appeals…, that where a state has afforded same-sex couples all or virtually all of the incidents of marriage that it offers to similarly situated opposite-sex couples,


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L.A. City Councilman Urges Suspending “Sister City” Relationship with St. Petersburg

City Councilman Bill Rosendahl has submitted a proposed resolution suspending L.A.’s “Sister City” relationship with St. Petersburg, Russia. The reason: St. Petersburg’s “anti-gay initiatives,” “including enactment of legislation curbing gay rights and a police crack down on lesbian, gay, bisexual and transgender (LGBT) activities” and a ban on “promotion of homosexuality,” which restricts “freedom of speech as well as such fandamental activities as gay pride festivals and parades.”

Now I too oppose the St. Petersburg policies; I’ve blogged about them, and I suspect our readers got the message that I think the policies are indeed wrong. And of course no city has any legal right to sister city status with Los Angeles.

Still, I don’t think it would be right to suspend the relationship only with St. Petersburg over this, when L.A. continues to have sister city relationships with Beirut, Giza (Egypt), and Lusaka (Zambia), all places in countries that are even less tolerant of gay rights than St. Petersburg — those countries continue to criminalize homosexuality altogether. (I don’t list Tehran, since L.A. suspended its sister city relationship with Tehran in 1979.)

Moreover, L.A. is sister city to Guangzhou (the former Canton), where free speech on a wide range of topics is even more restricted than free speech is in China. I can’t speak to the precise state of gay rights in China, but the state of rights generally, including freedom of speech and freedom to parade, is pretty weak.

If you’re a commentator on Russia, you should of course be free to speak about what you know and not discuss what you don’t. But it seems to me that government bodies deciding what official actions to take (as opposed to private individuals deciding which subjects to speak about) have some obligation — though not a constitutional obligation […]

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Richard Kahlenberg on Racial Preferences and Gay Marriage

In a recent post, I wrote about the growing number of people who oppose racial preferences in education, while also supporting gay marriage. Richard Kahlenberg, a long-time advocate of replacing race-based affirmative action with socioeconomic affirmative action, can be added to the list:

The Supreme Court’s decision to hear gay-marriage cases from New York and California this spring means the justices will weigh in on two highly fraught social questions this term—same-sex marriage and affirmative action in higher education. (Not to mention the future of the Voting Rights Act.) Justice Anthony Kennedy is likely to be the swing vote in these cases, and many are predicting he will side with conservatives to limit racial preferences and with liberals to support gay marriage. Paradoxically, the very reasoning that could guide Kennedy to support marriage equality may bolster his decision to curtail race-based affirmative action, spurring colleges to adopt new approaches.

Proponents of gay marriage advance two powerful arguments: Couples seeking to marry should not be discriminated against on the basis of an unchangeable factor like sexual orientation; and shifting attitudes, especially among young people, make gay marriage an inevitability.

The problem for supporters of racial preferences is that these precise arguments can be, and have been, made by conservatives challenging the use of race in university admissions in the case of Fisher v. University of Texas. Abigail Fisher, the plaintiff, says the fact that she was born white should not be used to disadvantage her in admissions; and large-scale trends over the past half century—the decline in racial discrimination coupled with growing economic inequality, a rise in racial intermarriage, and the “browning” of the U.S. population—all make affirmative action based on race look outdated.

I don’t agree with all the points Kahlenberg makes. Not every possible argument for […]

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Gay Marriage in Mexico and Washington State (and perhaps soon in Uruguay)

The Mexican Supreme Court ruled today that excluding same-sex couples from marriage is unconstitutionally discriminatory.  This follows a 2010 pro-SSM ruling that applied only to Mexico City.  It’s unclear how broadly this new ruling will apply beyond the Mexican state of Oaxaca, but the news story suggests that individual suits brought in other states will gradually bring same-sex marriage to those jurisdictions.

In Uruguay, the lower house in the national assembly appears poised to approve a bill on Monday that would define marriage as “the union of two parties, regardless of gender identity or sexual orientation thereof at the same terms with the same effects established in the Civil Code.”

Same-sex marriage licenses will begin to issue at midnight tonight in Washington State.  Marriage ceremonies will start on Sunday after the state’s obligatory three-day waiting period, which for many gay couples will follow a years-long waiting period.

SSM is now legal in Argentina, Belgium, Canada, Denmark, Iceland, the Netherlands, Norway, Portugal, South Africa, Spain, Sweden and Mexico (where same-sex marriages for now are allowed only in Mexico City but are recognized nationwide).  It’s also legal in nine U.S. states – Connecticut, Iowa, Maine, Maryland, Massachusetts, New Hampshire, New York, Vermont and Washington — and in Washington, D.C.


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