The AP reports: A federal judge Monday ordered Ohio authorities to recognize gay marriages on death certificates, saying the state’s ban on such unions is unconstitutional and that states cannot discriminate against same-sex couples simply because some voters don’t like homosexuality. Although Judge Timothy Black’s ruling applies only to death certificates, his statements about Ohio’s […]
Archive | Gay Marriage
New Mexico Supreme Court Strikes Down State Law Limiting Marriage to Opposite-Sex Couples
By Ilya Somin on December 19, 2013 8:17 pm in Gay Marriage, Gay Rights, Same-Sex Marriage, Sex Discrimination
In today’s decision in Griego v. Oliver, the New Mexico Supreme Court struck down state laws that limit marriage to opposite sex couples. I welcome the result, but would have preferred that the court based its decision on the ground that laws banning same-sex marriage discriminate on the basis of gender. The court ruled that […]
Religious Liberty and SSM: A Response to Concerns in Illinois
By Dale Carpenter on October 30, 2013 2:14 pm in Gay Marriage, Gay Rights, Religion and the Law, Religious Freedom, Same-Sex Marriage, Sexual Orientation
The Illinois legislature is considering a bill that would extend marriage to same-sex couples. In response, a group of religious-liberty scholars have urged the governor and legislative leaders to include what they call a “marriage conscience protection” that would significantly expand the scope of religious exemptions already provided in the bill, and would insert additional substantive exemptions that would […]
How Bigoted Speech Advances Equality
In a splendidly written essay in The Atlantic, Jonathan Rauch makes the case for protecting “hate speech” in the context of a proposed boycott by some gay-rights advocates of the movie Ender’s Game (released Nov. 1). The movie is not itself said to be homophobic but, they urge, it should be boycotted because it is based on a sci-fi novel by […]
Two Upcoming Speaking Engagements
By Ilya Somin on September 30, 2013 1:20 pm in Democracy and Political Ignorance, Gay Marriage, Gay Rights, Same-Sex Marriage
Over the next two weeks, I will be doing two out-of-town speaking engagements that may be of interest to some of our readers. On Thursday, October, 3, 12:00-1:15 PM, I will be doing a talk on my new book Democracy and Political Ignorance: Why Smaller Government is Smarter, at Columbia Law School in Jerome Greene […]
State Denies In-State Tuition to Same-Sex Spouse of a Servicemember
The effects of federal recognition of same-sex marriages across the full spectrum of federal benefits, including for those domiciled in states that ban the recognition of their marriages for state purposes, are bubbling up on an almost daily basis. According to the Dallas Voice, the University of Texas-San Antonio (UTSA) has denied an in-state tuition […]
DOMA and Dignity
By Dale Carpenter on September 26, 2013 9:43 pm in Beyond DOMA, Federalism, Fifth Amendment, Gay Marriage, Same-Sex Marriage, Sexual Orientation
Why is the Defense of Marriage Act unconstitutional? Here are two propositions that United States v. Windsor might be thought to stand for: (1) The federal government’s decision not to recognize state-sanctioned marriages of same-sex couples was an unconstitutional intrusion on federalism (a structural claim); or (2) The federal government’s decision not to recognize state-sanctioned marriages of same-sex […]
Labor Department Extends ERISA Protections to Same-Sex Spouses
By Dale Carpenter on September 18, 2013 11:04 pm in Beyond DOMA, ERISA, Gay Marriage, Gay Rights, Same-Sex Marriage
The effect of United States v. Windsor continues to ripple through federal law, expanding by leaps and bounds the rights and protections afforded to same-sex spouses. The effect has been magnified by a friendly federal bureaucracy under the Obama administration, which is widely adopting a place-of-celebration rule for recognizing same-sex marriages under federal laws using […]
Did the Obama Administration have a Duty to Defend DOMA?
By Ilya Somin on June 30, 2013 5:20 pm in Constitutional Theory, DOMA, Gay Marriage, Gay Rights, Presidency
I have a somewhat different perspective than co-blogger Todd Zywicki on the Obama administration’s decision not to defend DOMA in court. In my view, the President’s duty to uphold the Constitution supersedes any obligation he might have to defend a federal statute. Therefore, if he sincerely believes that a federal law is unconstitutional, he should […]
Right, Left, and the Standing Issues in the Gay Marriage Cases
Both of today’s gay marriage cases raised complex issues of whether the parties had “standing” to appear in federal court. In the Windsor case striking down Section 3 of DOMA, the Obama Administration’s refusal to defend DOMA led the Bipartisan Legislative Assistance Group, made up of members of Congress, to undertake the task. In Hollingsworth […]
The Impact of Today’s Gay Marriage Decisions
It may be a long time before the effects of today’s gay marriage decisions are fully evident. But it seems clear that they represent important progress for same-sex marriage and gay rights more generally. The DOMA case is also a modest success for those who seek to enforce constitutional limits on federal power. Obviously, the […]
The DOMA Decision and Federalism
Justice Anthony Kennedy’s majority opinion for the Court in the DOMA case relies partly on federalism considerations, striking down Section 3 of DOMA in part because it goes beyond the usual scope of federal authority. In reaching this conclusion, it cites (among other sources) the amicus brief submitted by several federalism scholars, including co-bloggers Randy […]
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 […]
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 […]
Linda Greenhouse’s Misrepresentation of the Federalism Argument Against DOMA
By Ilya Somin on April 4, 2013 2:16 pm in DOMA, Federalism, Gay Marriage, Gay Rights, Same-Sex Marriage
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 […]