I blogged earlier today about the New Mexico Court of Appeals decision in Willock v. Elane Photography, which held that a wedding photographer could be held liable for refusing to photograph a same-sex commitment ceremony. I argued that the decision violated the photographer’s First Amendment rights not to create expressive works (such as photographs) that […]
Archive | Same-Sex Marriage
Wedding Photographer May Be Required (on Pain of Legal Liability) to Photograph Same-Sex Commitment Ceremonies
So the New Mexico Court of Appeals held last week in the long-pending Elane Photography v. Willock (N.M. Ct. App. May 31, 2012). The court began by holding that the state law that bans sexual orientation discrimination in places of public accommodation applies to professional wedding photographers’ decisions not to photograph same-sex commitment ceremonies: Such […]
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 […]
Federal Judge Strikes Down Denial of Benefits to Same-Sex Partner under DOMA
The San Francisco Chronicle reports: Congress violated constitutional standards on legalized bigotry when it denied federal benefits from same-sex spouses and excluded domestic partners of state employees from long-term health coverage, a federal judge ruled Thursday. The decision by U.S. District Judge Claudia Wilken of Oakland was the second by a Bay Area judge this […]
If Same-Sex Marriage Is So Popular, Why Does It Lose at the Polls?
The Monkey Cage has an interesting guest post from Georgia State University’s Gregory Lewis examining why initiatives to prohibit same-sex marriage succeed at the polls when public opinion surveys suggest reasonably strong support for same-sex marriage. Among the key points is that support for same-sex marriage varies quite widely by state.
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, […]
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 […]
District Court Judge Holds that DOMA is Unconstitutional as to Federal Law
The opinion is today’s Golinski v. United States Office of Personnel Mgmt. (N.D. Cal. Feb. 22, 2012). The conclusion: “In this matter, the Court finds that DOMA, as applied to Ms. Golinski, violates her right to equal protection of the law under the Fifth Amendment to the United States Constitution by, without substantial justification or […]
Prop. 8 Backers Seeking Ninth Circuit En Banc Review
The backers of California’s anti-same-sex-marriage Prop. 8 are apparently about to ask for en banc review by the Ninth Circuit. I had thought that they’d go straight to the Supreme Court, since (1) the chances of their getting en banc review in the Ninth Circuit, and then winning such review before a 11-judge panel that […]
Proposition 8 Through the Prism of Lawrence v. Texas
The Ninth Circuit’s opinion in Perry v. Brown pushes hard to apply Romer v. Evans to the Prop 8 litigation. The panel noted that the grant of full marital and parental rights to same-sex couples, while simultaneously denying them the word “marriage,” excised gay couples and their children with “surgical precision.” But such narrowness was not the problem in Romer; it […]
More on Gay Marriage Bans and Judicial Minimalism
By Ilya Somin on February 12, 2012 5:57 am in Gay Marriage, Gay Rights, Same-Sex Marriage, Sex Discrimination, Sexual Orientation
In a thoughtful recent post, co-blogger Dale Carpenter takes issue with my argument that bans on same-sex marriage are best attacked on the grounds that they are unconstitutional sex discrimination, and parts of my post suggesting that a minimalist strategy in the gay marriage litigation is not likely to work. Dale is one of the […]
More on Minimalism and Maximilism in the Prop 8 Case
I agree with some of what Ilya writes in response to my post on the Ninth Circuit’s Prop 8 decision and judicial minimalism. As I noted in that post, the effect of striking down Prop 8 is certainly not small. California would be “by far the biggest prize” for same-sex marriage advocates. Of course, it could have been written in a […]
Spanking Judges as a Rational Basis for Prop 8
By Dale Carpenter on February 11, 2012 1:36 am in Equal Protection, Same-Sex Marriage, Sexual Orientation
In the ongoing search for a constitutionally minimal justification for Prop 8, Orin proposes a creative one — repudiating activist judges independent of the substantive merits of the amendment: One rational reason to support a symbolic law like Prop 8 would be to issue a rebuke to the California Supreme Court that issued that decision, with […]
Sex Discrimination and Tradition
By Ilya Somin on February 10, 2012 1:43 pm in Gay Marriage, Gay Rights, Same-Sex Marriage, Sex Discrimination
In a recent post, co-blogger David Bernstein partially rejects my argument that a ban on same-sex marriage qualifies as sex discrimination. As David puts it: On the one hand, I agree with Ilya that bans on same-sex marriage could be described as sex discrimination. On the other hand, from opponents’ perspective, the point is that […]
On Same Sex Marriage and “Sex Discrimination”
By David Bernstein on February 10, 2012 8:16 am in Gay Marriage, Gay Rights, Same-Sex Marriage, Sex Discrimination
On the one hand, I agree with Ilya that bans on same-sex marriage could be described as sex discrimination. On the other hand, from opponents’ perspective, the point is that “marriage” has been defined for several thousand years in Judeo-Christian culture as between a man and a woman, and retaining that definition is not sex […]