This is the open-thread on same-sex marriage promised by the post above.
Archive | Same-Sex Marriage
More on Whether the Facts Matter in Perry v. Schwarzenegger
Over at CoOp, Dave Hoffman has more on the relative importance of the facts in Perry: [T]here are facts, and then there are constitutional facts. Almost every “fact” identified by Judge Walker is of the latter type — “Sexual orientation is a fundamental characteristic of a human being.”; “marriage is widely regarded as the definitive […]
How Much Do the Factual Findings Matter in Perry v. Schwarzenegger?
Judge Walker’s opinion in the same-sex marriage case is notable for its factual record. As a commenter to Andrew Sullivan’s blog writes: What strikes me about Judge Walker’s opinion is the amount of evidence he included there – numbered, paraphrased facts with direct citation to and quotation from the trial record. As a lawyer, I […]
How Do You Apply the Rational Basis Test to a Restoration of Prior Law?
I’m sure some people have thought a lot about this issue, and I hope they’ll bear with me as I pose an amateurish question: Should it matter to the constitutionality of Prop 8 that it was passed as part of a ballot initiative that restored preexisting law? Here’s my thinking. Let’s say there’s a really […]
The Pace of Social Change and the Rational Basis Test
A lot of the legal issues in Judge Walker’s opinion have been addressed elsewhere, but I wanted to focus on one narrow part of the opinion raising an issue of particular interest to me: Whether and when the pragmatic concerns abut rapidly changing social institutions provide a rational basis for rejecting such changes. In the […]
Key Language From Judge Walker’s Opinion
Much of Judge Walker’s opinion focus on the facts, and why he concludes that there is no rational basis on which a person can oppose same-sex marriage. But here’s a key passage from the law section of the opinion, on pages 113-14 (with citations to the record omitted): The right to marry has been historically […]
Federal District Court Strikes Down Part of Defense of Marriage Act
The case is Gill v. Office of Personnel Management (D. Mass., decided today). The court reasons that, at least as to various benefits provided by the federal government, the distinction that DOMA draws between opposite-sex married couples and same-sex couples married under the laws of those states that recognize same-sex marriage is irrational, and thus […]
DOMA Section 3 Unconstitutional, Says Massachusetts District Court
By Dale Carpenter on July 8, 2010 5:41 pm in Federalism, Gay Marriage, Same-Sex Marriage, Sexual Orientation, Spending Clause
That’s the decision this afternoon, based on equal protection principles applied to the federal government through the Fifth Amendment’s Due Process Clause. Section 3 of the Defense of Marriage Act of 1996 established a federal definition of marriage for the first time. This meant that the federal government could refuse to grant validly married same-sex […]
Hypocrisy, Same-Sex Marriage, and Televising Public Interest Litigation
Over at Slate, Dahlia Lithwick suggests that gay marriage opponents who oppose broadcasting the San Francisco gay marriage trial are hypocrites. According to Lithwick, it’s inconsistent both to want the people to decide an issue and to deny them video access to a trial that might sway their opinion: Opponents of gay marriage can’t have […]
Impromptu Supreme Court Opinion in Gay Marriage Case
The Supreme Court, nearly an hour after its 4 pm deadline passed, just handed down a 17-page per curiam opinion enjoining broadcast of the gay marriage trial going on in the Northern District of California pending resolution of an anticipated cert petition or petition for mandamus. Justice Breyer, joined by Justices Stevens, Ginsburg, and Sotomayor, […]
A Few Thoughts on the Olson-Boies Same-Sex Marriage Case
Like a lot of our readers, and my co-bloggers Dale and Jonathan, I’ve been following the Olson-Boies same-sex marriage case with great interest. I wanted to weigh in with three comments and a question. 1) I’m not so sure the Supreme Court will eventually take this case. A lot of people seem to think this […]
Televised “Show Trial” on Proposition 8?
Over at NRO, Ed Whelan has been following some bizarre manuevering by the federal district court judge in the Northern District of California who apparently is trying to have a televised “show trial” regarding Proposition 8. Without getting into the merits of Proposition 8 or the legal challenges to it, I agree with Whelan that it seems […]
Discrimination Against Nazis in Public Accommodations
By Eugene Volokh on December 16, 2009 5:52 pm in Freedom of Speech, Religious Freedom, Same-Sex Marriage
A commenter suggested that a hypothetical involving a photographer who refuses to photograph a pro-Nazi ceremony was an “absurd example,” apparently because of the absence of statutes that make it illegal to discriminate against Nazis. Most jurisdictions don’t ban discrimination based on political affiliation, but some do. The D.C. antidiscrimination law to which I linked […]
The First Amendment and the Race Discrimination Bogeyman
By Eugene Volokh on December 16, 2009 5:23 pm in Freedom of Speech, Religious Freedom, Same-Sex Marriage
In the most recent discussion of Elane Photography v. Willock, a commenter asked: “Imagine if instead of a gay couple it was an interracial couple. Would you still support Huguenin’s refusal to photograph the wedding? Or what if the couple were parapalegics and she had an ‘aesthetic aversion’ to photographing the disabled?” The question (at […]
Religious Accommodation Statutes and a Right Not To Participate in Same-Sex Weddings
By Eugene Volokh on December 16, 2009 4:44 pm in Freedom of Speech, Religious Freedom, Same-Sex Marriage
New Mexico is one of about two dozen states in which religious objectors are presumptively entitled to religious exemptions from generally applicable laws. (About a dozen states, plus the federal government, provide this protection by statute; the other dozen states provide it as an interpretation of the state constitution’s religious freedom provisions.) Here’s the relevant […]