Author Archive | Dale Carpenter

DOMA: “Conservative Principles, Properly Understood”

In his column for today, George Will backs the federalism-based equal protection argument against Section 3 of the Defense of Marriage Act that Ernie Young and Lynn Baker, along with co-Conspirators Randy, Jonathan, Ilya, and I made in an amicus brief filed in United States v. Windsor.:

Conservatives who supported DOMA should, after 17 years’ reflection, want the act overturned because its purpose is constitutionally improper. Liberals who want the act struck down should be discomfited by the reason the court should give when doing this.

…  Because approximately 1,100 federal laws pertain to marriage, DOMA’s defenders argue that Congress merely exercised its power to define a term used in many statutes. But before 1996, federal statutes functioned without this definition, which obviously was adopted for the “defense” of marriage against state policies involving a different definition. “Before DOMA,” an amicus brief submitted by a group of federalism scholars notes, “federal law took state law as it found it.”

The question now is whether DOMA is “necessary and proper” for the exercise of a constitutionally enumerated congressional power. There is no such power pertaining to marriage. . . .

Ernest A. Young of the Duke Law School, the principal author of the federalism brief, says the operation of DOMA cannot help but burden states because “federal and state law are pervasively intertwined.” To understand the harm that could be done by an unlimited federal power to define the terms of domestic-relations law, Young recalls when a few states, venturing beyond the national consensus, began experimenting with no-fault divorce. Suppose, Young says, Congress passed a statute refusing recognition, for purposes of federal law, of any divorce where neither party made a showing of fault:

“The couple would continue to be treated as married for purposes of federal income tax,

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Minnesota House and Senate Committees to Consider SSM Bill on Tuesday

Two committees of the Minnesota legislature, one from each house, will consider legislation tomorrow to legalize same-sex marriage in the state. The first, scheduled to begin at 8:15 a.m. (Central) is before the state house Civil Law Committee. The committee plans to take testimony until 10 a.m. and may resume consideration of the bill Tuesday evening at 6:00 p.m.  The second hearing is before the state senate Judiciary Committee. That committee will consider the bill from 12:00 to 2:30 p.m.  In the November 2012 election, Minnesota voters defeated a proposed state constitutional ban on same-sex marriage and, at the same time, elected Democratic majorities in both state houses.  So far, there is one Republican co-sponsor in the state senate.

There may be a vote in each committee tomorrow. If the bill passes in committee, it could then move to the floor for a full vote in each house sometime before adjournment of this session in late May.  Democratic Governor Mark Dayton would sign the bill if it reaches his desk.

Live streaming video of the hearings should be available tomorrow.  The state house committee hearing (starting 8:15 a.m.) should be here.  The state senate committee (starting 12:00 p.m.) should be here. [...]

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A Federalism-Based Equal Protection Argument Against DOMA

Over the past few days, the Court has been treated to an avalanche of briefs submitted by law professors, professional associations, prominent Republicans, and even football players arguing that California’s Proposition 8 and Section 3 of the Defense of Marriage Act are unconstitutional.  Today I’m proud to join three of my co-Conspirators — Jonathan Adler, Randy Barnett, and Ilya Somin — as well as Ernie Young and Lynn Baker in filing an amicus brief in United States v. Windsor arguing that DOMA Section 3 is unconstitutional. While this conclusion is shared by 69% of constitutional law professors around the country, our route to that end is probably not as widely shared.

Our view is that Section 3 fails equal protection review for a reason quite distinct from the standard approaches relying on heightened-scrutiny analysis.  Whatever else may be its constitutional defects, Section 3 is not a constitutional exercise of any enumerated federal power.  It is also not a “necessary and proper” measure to carry into execution any of Congress’s enumerated powers.  Instead, it is an unprecedented expansion of federal authority into a domain traditionally controlled by the states.  The federal government claims a hitherto unknown and sweeping power to determine marital and family status.  While Congress has not (yet?) claimed a statutory authority to bar states from recognizing specific marriages, it has greatly complicated and burdened their police power to do so through the enforcement of DOMA. It may well be that Congress has authority to limit access to specific federal benefits otherwise available to validly married people.  But Section 3, as an across-the-board enactment untethered to any specific power, is not plainly adapted to serve any “legitimate” interest of the federal government.  The federal govt can have no legitimate interest in regulating beyond its enumerated (and necessarily and [...]

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Speaking this week

I’ll have the pleasure of participating in two debates on SSM this week at student Federalist Society chapters. One will be with Ryan Anderson tomorrow at the University of Nebraska Law School. The second will take place at Creighton University Law School on Tuesday.  Please say hi if you see me at either. [...]

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Debates Next Week

On Monday, I’ll be arguing the conservative case for same-sex marriage at the Federalist Society chapters of two law schools in Baton Rouge. The first dabte will start at noon at the Southern University Law Center, where my sparring partner will be Judge Duke Welch, a Louisiana appellate court judge. The second debate will be with a faculty member at the LSU Paul M. Herbert Law Center, starting at 3:30. [...]

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Rhode Island Marriage Debate Now

The state legislature is debating a same-sex marriage bill. It’s almost entirely a debate among Democrats, since the RI legislature is heavily Democratic.  Watch the proceedings here.

UPDATE: It passed the state house, 51-19.  It now moves to the state senate. The governor supports it. [...]

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Nice Try

Opponents of same-sex marriage are trying to get the Court to review their recent win against SSM in the district court in Nevada, skipping any consideration of the case in the Ninth Circuit.  In their petition for certiorari before judgment, they argue:

Of the “marriage” cases now before this Court, this case is optimal for resolving the fundamental issue for several reasons. This case is the only one that cannot be resolved without answering the fundamental issue. Further, this case has developed most comprehensively and thoroughly the societal interests justifying preservation of marriage’s man-woman meaning; the record here will thus be most helpful in judicial review. Moreover, important collateral issues that may be the basis for resolving the other pending marriage cases will be more prudently and intelligently answered after this Court resolves the fundamental issue. Finally, this case is free of standing issues.

I expect the petition to be denied for at least three reasons.  First, granting review before judgment is an exceedingly rare act reserved for the most compelling circumstances. Second, unlike the pending petitions in the Prop 8 case and in the Defense of Marriage Act cases, the decision below in the Nevada district court upheld the state marriage limitation. And finally, the fact that the Nevada case presents the “fundamental issue” of whether same-sex couples are constitutionally entitled to marry actually cuts against immediate review. The Court usually likes to move in a more minimalist fashion, reserving the largest issues for resolution after more development in the lower courts.  With the DOMA cases and the Prop 8 case, it can issue more cautious and theoretically less ambitious opinions to resolve those matters either way, leaving the underlying question of marriage for another time.

The effort by gay-marriage opponents to get the fundamental issue [...]

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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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“The Most Significant Cases These Nine Justices Have Ever Considered”

Tom Goldstein at SCOTUSBlog presents the matter succinctly:

At their Conference today, the Justices will consider petitions raising federal constitutional issues related to same-sex marriage.  These are the most significant cases these nine Justices have ever considered, and probably that they will ever decide.

I have never before seen cases that I believed would be discussed two hundred years from now.  Bush v. Gore and Obamacare were relative pipsqueaks.  The government’s assertion of the power to prohibit a loving couple to marry, or to refuse to recognize such a marriage, is profound.  So is the opposite claim that five Justices can read the federal Constitution to strip the people of the power to enact the laws governing such a foundational social institution.

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Nevada District Court Rejects SSM Claim

On the eve of the Supreme Court’s consideration of some major gay-marriage cases, Nevada District Court Judge Robert Jones has publicly released a decision (dated three days ago) in which he rejected a challenge to Nevada’s exclusion of same-sex couples from marriage.  I haven’t closely read all of  Sevcik v. Sandoval, but a quick skim suggests it’s a rhetorically charged decision.  Claiming that “the homosexual-rights lobby” has “great political power,” and specifically citing what he called the national media’s support for President Obama’s endorsement of gay marriage, Jones ruled against the parties’ Equal Protection claims.  In a press release, Lambda Legal was withering:

This entire decision rests on the ridiculous premise that a ‘meaningful percentage of heterosexual persons’ will decide not to get married if same-sex couples can. Not only is this not true, but it is settled law that the government is not allowed to cater to private biases — which is all that imagining that ‘some couples won’t join this club if those people are admitted’ amounts to. We are confident this ruling will be overturned on appeal to the Ninth Circuit Court of Appeals.

Of course, by the time the Ninth Circuit gets to it, the Supreme Court may have spoken.


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The Moment of Victory in Minnesota

For an example of a pure, spontaneous eruption of joy it’s hard to beat the moment we learned that the anti-gay marriage amendment had been defeated in Minnesota.  At 1:45 the staff and board of Minnesotans United For All Families, was gathered in a conference room just across from the hall from where thousands had gathered for the main victory party taking place. We had started out with a big lead of 60%-40% early in the night but had seen that lead dwindle hour-by-hour until the “yes” and “no” votes were almost tied. Still, we’d heard that votes in Minneapolis were not yet in and that these should bring good news.  So the mood was cautiously optimistic, intense, focused, and nervous.

Richard Carlbom, the campaign manager, stood up on a chair and began addressing the room of perhaps 100 staff, volunteers, and board members.  They had given everything they could for months to beat the amendment.  Since my phone’s battery was dead, I asked my partner to video what he said.  Nobody expected what happened next.  Carlbom told us how much we’d accomplished as a campaign. He said he was hopeful we’d win but that the race was still too close to call.  Since we had to be out of the convention hall by 2 a.m., he said, we wouldn’t know the result for sure until morning.  As he was about to close, he was interrupted by the campaign communications director, Kelly Schwinghammer, who had been busily checking her smart phone for the latest news.  “Hey Richard,” she said calmly, “the AP just called it.”  To see the speech and the reaction to the announcement, follow the link below (see especially beginning at about the 2:55 mark):

The Moment of Victory in Minnesota

This is the only video that [...]

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Winning Minnesota

Most of the post-election attention to the gay-marriage ballot fights has focused on the inspiring wins in Maine, Maryland, and Washington state, where same-sex marriages will now be legal.  But equally important in the long-term is what happened in Minnesota on Tuesday.  Eighteen months ago, when the state legislature voted to place a ban on same-sex marriages on the ballot, I wrote that “on November 6, 2012, Minnesota will become the first state to reject one of these amendments.”  Many people (myself included) were skeptical of that prediction.  It was more a hope than a forecast. Until midnight or so last night, I still doubted we’d win.  Losing Minnesota, for me and for my family and friends, would be a punch to the gut even harder than losing California.

In 30 states, same-sex marriage had never won a popular referendum.  Minnesota is reliably blue, but is more socially conservative than people realize.  The state GOP had taken both the state senate and house in 2010, which is what permitted the issue to go to the ballot.  Minnesota is more religious, with a higher percentage of weekly churchgoers, than places like Maine and California.  It’s in the middle of the country, not on one of the coasts.  In 2006, neighboring Wisconsin had approved a broader amendment by 59%-41%.  Polls on gay-marriage amendments had always been notoriously unreliable, underestimating opposition by an average of seven percent. The public polls never showed us beyond that error rate.  Opponents had a devastating, if misleading and exaggerated, message about how gay marriage would mean the loss of religious freedom, kids would be “taught gay marriage,” judicial activists would impose their will, and family structure would unravel. Somehow all of this would be caused by the marriages of people like two of my best friends, [...]

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