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 […]
Archive | Gay Marriage
A Few Thoughts on the Second Circuit’s DOMA Decision
This week a divided panel of the U.S. Court of Appeals for the Second Circuit held that Section 3 of the federal Defense of Marriage Act (DOMA) is unconstitutional. Section 3 is the portion of DOMA barring federal recognition of same-sex marriages, even where recognized under state law. In this case, Windsor v. United States, […]
Does DOMA Discriminate on the Basis of Sexual Orientation, Gender, or Both?
Today’s Second Circuit decision striking down a part of the Defense of Marriage Act holds that laws discriminating on the basis of sexual orientation are subject to heightened “intermediate” scrutiny. But it is not clear that DOMA actually discriminates on the basis of sexual orientation, as opposed to gender. As I explained in the context […]
Gay Marriage and Intolerance
Perhaps the best most effective argument opponents of gay marriage (which I support) have [which, I’ve since read, is the focus of their current campaign in Maine] is that once gay marriage becomes institutionalized, people who still oppose it for religious and other reasons will be treated as pariahs and, even worse, will be treated […]
Speaking at Notre Dame Law School
By Dale Carpenter on September 6, 2012 4:36 pm in Gay Marriage, Religion and the Law, Same-Sex Marriage
On Monday, September 10, during the lunch hour, I’ll be presenting “The Conservative Case for Gay Marriage” at the Notre Dame Federalist Society. Professor John Finnis will respond.
Slaveholders Lost Freedom Because of Emancipation, Argues Con Law Prof
University of St. Thomas Law Professor Robert Delahunty argues in this morning’s Minneapolis Star Tribune that “whenever the law expands the freedoms of one person or group, it necessarily contracts those of another.” Thus, he asserts that if gay couples are granted the freedom to marry, gay-marriage opponents will lose the freedom to live in a world without gay marriage […]
Anonymity Granted to Catholic Donor Opposed to Marriage Amendment, But Amendment Supporters Object
By Dale Carpenter on September 3, 2012 10:01 pm in Constitutional Amendments, Election Law, Gay Marriage, Gay Rights, Same-Sex Marriage
In Minnesota, pro- and anti-gay marriage activists are fighting over political campaign disclosure laws, though this time the usual roles are reversed. On August 17, the Minnesota Campaign Finance and Public Disclosure Board ruled that the group working to defeat a constitutional amendment banning gay marriage does not have to disclose the name of a Catholic contributor to the […]
Federal Judge in Hawaii Rejects Same-Sex Marriage Claim
By Dale Carpenter on August 11, 2012 4:11 pm in Constitutional Law, Gay Marriage, Gay Rights, Same-Sex Marriage, Sexual Orientation
In Hawaii, gay couples may enter civil unions with all the state-based rights and legal protections of marriage, but without the official designation of being “married.” Same-sex couples sued to have the status of marriage, urging that they had a fundamental right to marry under the Due Process Clause and that the state could not […]
David Blankenhorn Changes His Mind About SSM
Over the past few years, David Blankenhorn has been a leading intellectual opponent of same-sex marriage. In 2007, he published The Future of Marriage, which in my view is the most persuasive book opposing it. In 2009 he was the leading testifier in favor of Prop 8 in the Perry litigation. His view was never grounded in anti-gay attitudes, however. […]
First Circuit Unanimously Strikes Down DOMA Section 3
By Dale Carpenter on May 31, 2012 12:12 pm in DOMA, Equal Protection, Federalism, Gay Marriage, Gay Rights, Same-Sex Marriage
The opinion is here. The panel concluded that the Defense of Marriage Act, barring federal recognition of same-sex marriages, violates Equal Protection. On a quick reading, it appears the court applied “rational basis with bite” scrutiny based on the arguments that the exclusion (1) denied important federal rights and benefits to a small class of married couples, and […]
The Incoherence of President Obama’s Stance on Gay Marriage
By Jonathan H. Adler on May 10, 2012 12:59 pm in Federalism, Gay Marriage, Gay Rights, Same-Sex Marriage
Yesterday the President told ABC News that he believes same-sex couples should be able to get married. So far so good. He further told ABC that he believes this is an issue that should be left to the states which are “arriving at different conclusions at different times.” I have nothing to complain about here, […]
Another Issue Where Obama and I Agree
President Obama’s recent announcement that he supports gay marriage is yet another addition to the short but distinguished list of issues on which the President and I agree. Previous entries include creating a playoff system for college football, allowing gays and lesbians to serve openly in the military, ending the home mortgage interest deduction for […]
When In Doubt, Do Right
Today the President of the United States explicitly endorsed the idea that gay couples and their families should have the freedom to marry. He had already done so as a practical matter by refusing to defend the constitutionality of what he carefully mislabelled the “Defense Against Marriage Act” and by publicly opposing state constitutional amendments against marriage. But in the past […]
My Upcoming Appearance on the Bob Zadek Show, Discussing the Gay Marriage Litigation
Tommorrow from noon to 1 PM Pacific time (3-4 Eastern), I will be appearing on Bob Zadek’s talk radio show in San Francisco to talk about the gay marriage litigation and other related issues. Zadek is a libertarian political commentator and lawyer who hosts a weekly talk show devoted to various political and legal issues. […]
Review of Flagrant Conduct in the New York Review of Books
By Dale Carpenter on March 16, 2012 10:01 am in Civil Rights, Constitutional History, Constitutional Law, Flagrant Conduct: Lawrence v. Texas, Gay Marriage, Gay Rights, Sexual Orientation
Georgetown Law Professor David Cole has a terrific review of my new book, Flagrant Conduct: The Story of Lawrence v. Texas (Norton) in the April 5 issue of the NYRB. Cole presents the basic background, including what likely happened the night John Lawrence and Tyron Garner were arrested for the crime of “Homosexual Conduct,” a Texas law that forbade […]