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 […]
Archive | Gay Marriage
Why Striking Down DOMA on Federalism Grounds Would not Lead to “Litigation Chaos”
By Ilya Somin on March 28, 2013 5:48 pm in DOMA, Federalism, Gay Marriage, Gay Rights, Same-Sex Marriage
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 […]
Reading the Tea Leaves in the Proposition 8 Same-Sex Marriage Oral Argument
By Ilya Somin on March 27, 2013 11:39 pm in Gay Marriage, Gay Rights, Same-Sex Marriage, Sex Discrimination
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 […]
How to Figure Out When Laws Banning Same-Sex Marriage Became Unconstitutional and Why the Precise Date May Not Matter
By Ilya Somin on March 26, 2013 11:44 pm in Constitutional Theory, Gay Marriage, Gay Rights, Originalism, Sex Discrimination
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 […]
Justice Kennedy on Proposition 8 and Sex Discrimination
By Ilya Somin on March 26, 2013 9:52 pm in Gay Marriage, Gay Rights, Same-Sex Marriage, 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 […]
Scotland Considers Law Recognizing Wedding Ceremonies Performed by Jedi Knights
By Ilya Somin on March 22, 2013 2:21 am in Gay Marriage, Religion, Religion and the Law, Science Fiction/Fantasy
Scotland is considering a new law that would grant official recognition to wedding ceremonies performed by practitioners of the new “Jedi” religion: The Force is strong with the Jedi in Scotland. A bill under consideration in Scotland would grant those who have literally made “Star Wars” a religion the power to perform marriage ceremonies. The […]
Some questions on the DOMA federalism theory
I’m also one of those who are skeptical of the federalism brief against DOMA. But I have a few questions, based on perusing the recent posts here and elsewhere by Dale, Randy, Jonathan, Nick, and my former boss Ed. (I read the brief itself a while back, but declined to sign; forgive me if the […]
Debating DOMA and Federalism
As Dale noted here, several VC contributors joined a federalism scholars amicus brief in United States v. Windsor arguing that Section 3 of the Defense of Marriage Act transgresses the limitations on federal power. Our brief questions whether it is proper for the federal government to seek to defend a traditional conception of marriage in […]
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 […]
The Supreme Court’s Options in the California Same-Sex Marriage Case
By Ilya Somin on March 1, 2013 4:19 pm in Gay Marriage, Gay Rights, Sex Discrimination, Sexual Orientation
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 […]
Huntsman Endorses Gay Marriage
Former Utah Governor Jon Huntsman endorses gay marriage in The American Conservative. Here’s a bit of his argument: All Americans should be treated equally by the law, whether they marry in a church, another religious institution, or a town hall. This does not mean that any religious group would be forced by the state to […]
Richard Kahlenberg on Racial Preferences and Gay Marriage
By Ilya Somin on December 14, 2012 11:50 pm in Affirmative Action, Fisher v. University of Texas, Gay Marriage, Gay Rights
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 […]
Opposing Affirmative Action While Supporting Gay Marriage
By Ilya Somin on December 11, 2012 1:23 am in Affirmative Action, Fisher v. University of Texas, Gay Marriage
In a recent post, co-blogger Orin Kerr writes that “few people have the same instinctive reaction to both [the affirmative action and gay marriage] cases” that the Supreme Court is likely to decide in the next few months. He means that few people want the Court to invalidate both affirmative programs and state and federal […]
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 […]
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 […]