Archive | Gay Marriage

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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Scotland Considers Law Recognizing Wedding Ceremonies Performed by Jedi Knights

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 BBC reports that the Marriage and Civil Partnership Bill would apply to other nonreligious groups such as the Flat Earth Society and the Jedi Knights Society, aka Temple of the Jedi Order.

And while it may sound like a joke to most, the Jedi religion is quite popular in some parts of Europe. In England, it is the second-most popular “alternative religion,” with more than 175,000 people listing themselves as Jedi in the 2012 nationwide census.

“Our current consultation covers not only the introduction of same-sex marriage but also the detail of important protections in relation to religious bodies and celebrants, freedom of speech and education,” a Scottish government spokeswoman said.

“At the moment, marriage ceremonies by bodies such as humanists have been classed as religious, even though the beliefs of such organizations are nonreligious….”

The Scottish government plans to hold a public consultation on the bill and, of course, not all traditionally religious groups are happy about creating a new category for ceremonies that are by their very nature, arguably, a religious practice.

“There are loads of people in a diverse society like this for whom belief can mean virtually anything—the Flat Earth Society and Jedi Knights Society—who knows?” the Rev. Iver Martin told the BBC.

“I am not saying that we don’t give place to that kind of personal belief, but when you start making allowances for marriages to be performed within those categories, then you are all over the place.”

For their

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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 answers to my questions are right there in the brief.)

1. Ed distinguishes three types of statutory schemes: (a) a statute attaching consequences to marriage, with a definitional section defining “marriage”, (b) a statute where the word “marriage” is simply replaced with its definition, and (c) a statute without a definition of marriage, but where “marriage” is defined in a separate statute. Would the federalism theory be fine with (b) but not with (a) and (c)? Or, based on the idea that Congress has no power to care about what’s a good marriage, would the theory would also invalidate (b)? What’s the dealio?

2. If the problem is that Congress enacted DOMA for the purpose of furthering traditional marriage, does that mean I have to buy into purposivism or intentionalism to buy this theory?

3. What about all the statutes granting benefits to a spouse derivatively of the eligibility of a primary person, like Social Security (for purposes of survivorship), the immigration laws, etc.? The statute could have been written to apply to the actual eligible person: no Social Security benefits for widows, no special immigration treatment for the wife of an eligible person, etc. And yet they did write the statute to give special treatment to spouses that isn’t available for boyfriends/girlfriends, business partners, best friends, chess partners, etc. What was Congress’s power to do so, thus privileging the marital relationship over other kinds of relationships (even long-standing [...]

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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 response to state decisions to recognize same-sex marriage under state law.  The brief takes no position on the desirability of same-sex marriage, the constitutionality of California’s Proposition 8, or whether states are obligated to recognize same-sex marriages under the 14th Amendment.  (For what it’s worth, I personally support same-sex marriage and oppose Proposition 8 on policy grounds, but do not believe state recognition of same-sex marriage is constitutionally required and believe Proposition 8 is constitutional, even if subjected to intermediate scrutiny.  Time permitting, I’ll author additional posts explicating these latter points.)

The arguments in our brief have begun to prompt responses, most notably from our co-blogger Nick Rosenkranz and my NRO Bench Memos co-blogger, Ed Whelan.  Yesterday, Randy Barnett posted a reply by Duke law professor Ernie Young, the brief’s principal author.  I also responded on NRO’s Bench Memos.  Ed has since posted a surreply.

As I noted in my reply, Ed and Nick make the reasonable point that the federal government must have the authority to define terms for the purposes of federal law.   This argument is only goes so far.  Of course Congress may define terms in federal statutes, but it may not do so in such a way so as to exceed the scope of federal power or pursue ends not entrusted to the federal government and displace state authority.  So, for instance, Congress could not redefine “commerce” for purposes of federal law so as to exceed [...]

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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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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 recognize relationships that run counter to their conscience. Civil equality is compatible with, and indeed promotes, freedom of conscience.

Marriage is not an issue that people rationalize through the abstract lens of the law; rather it is something understood emotionally through one’s own experience with family, neighbors, and friends. The party of Lincoln should stand with our best tradition of equality and support full civil marriage for all Americans.

This is both the right thing to do and will better allow us to confront the real choice our country is facing: a choice between the Founders’ vision of a limited government that empowers free markets, with a level playing field giving opportunity to all, and a world of crony capitalism and rent-seeking by the most powerful economic interests.

I agree with Huntsman’s take, in particular his suggestion that the issue of same-sex marriage is “not an issue that people rationalize through the abstract lens of the law.”  This is one of the reasons it’s such a difficult issue for the courts.

There are powerful policy arguments for recognizing same-sex marriages.  As my co-blogger Dale Carpenter has shown, there is even a strong prudential conservative case for allowing same-sex couples to marry.  Yet the legal arguments that recognition of same-sex marriage is constitutionally compelled are not nearly so compelling.  As I see it, the ultimate issue is the definition of marriage — whether the state may define the institution as a union of a man [...]

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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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Opposing Affirmative Action While Supporting 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 laws banning same-sex marriage.

Depending on the definition of “few,” Orin may well be right. But it’s important to note that people who oppose racial preferences in college admissions (the issue the Court will consider in Fisher v. University of Texas), while supporting gay marriage are far from unusual. Recent polls show that about 50% of Americans support gay marriage, while many surveys indicate that some 60 to 70 percent of the public oppose racial preferences in college admissions (e.g. here and here). Even if we assume that some 80 to 90% of the 50% who do not support gay marriage also oppose affirmative action in admissions, that still means that about 15 to 20 percent of the public simultaneously opposes racial preferences and supports gay marriage.

And this position is likely to become more common, since support for gay marriage among moderates and conservatives is rapidly growing, while opposition to racial preferences remains fairly stable. A May 2012 Gallup poll found that 57% of independents and 22% of Republicans support gay marriage, and these percentages are likely to increase, since support for gay marriage is inversely correlated with age. The combination of support for gay marriage and opposition to affirmative action is probably also the most common view among the 10 to 15 percent of the public who are generally libertarian in orientation.

Opposition to affirmative action and laws banning gay marriage on policy grounds is not the same [...]

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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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