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 […]
Archive | Gay Rights
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 […]
No-Protest-Speech Policy at K-12 Schools
From Hatcher v. Desoto County School Dist. Bd. of Ed. (M.D. Fla. Apr. 5, 2013): Plaintiff [Amber Hatcher] seeks to organize and participate in the National Day of Silence at her high school in an effort to bring attention to the harms associated with bullying and harassment directed at lesbian, gay, bisexual and transgender students…. […]
Proposed California Bill Would Strip Youth Groups’ Sales Tax Exemption If They Discriminate Based on Sexual Orientation or Religious Affiliation
By Eugene Volokh on April 10, 2013 6:11 pm in Freedom of Association, Gay Rights, Religion and the Law
The proposed law, Senate Bill 323 seems pretty clearly aimed at the Boy Scouts, who would lose the exemption unless they reject both their policy against gays and their requirement of belief in God. The sales/use tax exemption is likely not a very big deal for the Scouts, but I take it that there might […]
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 […]
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 […]
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 […]
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 […]
L.A. City Councilman Urges Suspending “Sister City” Relationship with St. Petersburg
City Councilman Bill Rosendahl has submitted a proposed resolution suspending L.A.’s “Sister City” relationship with St. Petersburg, Russia. The reason: St. Petersburg’s “anti-gay initiatives,” “including enactment of legislation curbing gay rights and a police crack down on lesbian, gay, bisexual and transgender (LGBT) activities” and a ban on “promotion of homosexuality,” which restricts “freedom of […]
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 […]
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 […]