In a post below, Orin notes that many federal statutes define the meaning of the term “property,” even though property is generally defined under state law. If this is so, Orin understandably wonders, how could there be a problem with Congress defining marriage for purposes of federal law in DOMA? The short answer to Orin […]
Archive | Same-Sex 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 […]
Federalism Concerns Dominate the Attack on “Skim Milk” Marriage
At the Supreme Court today, the Defense of Marriage Act took a beating from Justices concerned about federalism. By my count, five Justices expressed deep constitutional concerns with DOMA, and four of these (Kennedy, Ginsburg, Sotomayor, and Breyer) expressly cited its intrusion into the traditional state domain of marriage law as a reason. Another, Justice […]
Not there yet
Here’s what I had hoped to be able to post after the oral argument in the Prop 8 case yesterday, but was unable to because I couldn’t get into the site. Yesterday it seemed urgent; today not so much. But here goes: Ten years ago today, I attended the Supreme Court oral argument in Lawrence […]
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 […]
Here Comes the Groom
Andrew Sullivan was arguing for same-sex marriage long before it was cool. When he made the case for gay marriage in a 1989 essay in The New Republic, “Here Comes the Groom,” he was attacked from the left by gay activists for selling out the cause of sexual liberation and slavishly acquiescing to bourgeois institutions. How times have […]
Epstein on the Gay Marriage Cases
Richard Epstein has two recent pieces discussing the Hollingsworth and Windsor cases. One for Hoover’s Defining Ideas, the other for Ricochet. In these pieces he notes some of his doubts about the libertarian case against DOMA and Proposition 8, but also suggests that Justice Kennedy — if he is to be consistent with his prior opinions — should […]
Federalism and Proposition 8
Federalism principles may weigh against Section 3 of the Defense of Marriage Act (DOMA), but what about Proposition 8? Reason.com has just posted an exchange between me and Ilya Shapiro of the Cato Institute on this question. Cato’s Ilya S. (not to be confused with our Ilya S.) argues that federalism has nothing to do […]
Can Statutory Definitions Be Unconstitutional on Federalism Grounds?
In his latest post on the federalism argument against DOMA, my co-blogger Nick Rosenkranz suggests that there can be no federalism-based constitutional objection to a statute that “defines [a word] only for purposes of federal law.” According to Nick. such a definition can only be unconstitutional if it offends some substantive constraint on government power, […]
There Is No Federalism Objection To Section Three of the Defense of Marriage Act
There has been a lot of commentary about the federalism argument against the Defense of Marriage Act (DOMA). Several of my co-conspirators signed on to the “federalism brief” in the DOMA case. I expressed serious doubts about the argument a few weeks ago (as did Sasha, and Ed Whelan over at National Review Online), and […]
Whelan v. McConnell on Same-Sex Marriage
By Jonathan H. Adler on March 23, 2013 3:43 pm in DOMA, Federalism, Same-Sex Marriage, Supreme Court
On Thursday, Stanford law professor and former federal appellate judge Michael McConnell suggested the Supreme Court should avoid ruling directly on the constitutionality of same-sex marriage by denying Proposition 8’s supporters standing to defend the initiative’s constitutionality and holding that the Defense of Marriage Act exceeds the scope of federal power. NRO’s Ed Whelan, who […]
Federalist Society Symposium on the Marriage Cases
Today the Federalist Society hosts a forum entitled, Same-Sex Marriage: A Variety of Perpectives on United States v. Windsor and Hollingsworth v. Perry. There are contributions by John Eastman, Nelson Lund, Ilya Shapiro, and me. My contribution, “Justice Scalie’s Constitutional Case for Gay Marriage,” originally appeared on SCOTUSblog last September.
McConnell on the Same-Sex Marriage Cases
By Jonathan H. Adler on March 21, 2013 10:40 pm in DOMA, Federalism, Same-Sex Marriage, Supreme Court
In Friday’s WSJ, Stanford law professor Michael McConnell, a former judge on the U.S. Court of Appeals for the Tenth Circuit, argues that the Supreme Court should hold that Proposition 8 supporters lack standing to defend the ballot initiative in federal court and that the federal government lacks the power to define marriage. the court need […]
DOMA: “Conservative Principles, Properly Understood”
In his column for today, George Will backs the federalism-based equal protection argument against Section 3 of the Defense of Marriage Act that Ernie Young and Lynn Baker, along with co-Conspirators Randy, Jonathan, Ilya, and I made in an amicus brief filed in United States v. Windsor.: Conservatives who supported DOMA should, after 17 years’ […]