Co-blogger Dale Carpenter argues that Judge Stephen Reinhardt’s recent decision striking down the California gay marriage ban is an attempt at “judicial minimalism” intended to make the outcome acceptable to a Supreme Court that is unlikely to rule that the Constitution requires nation-wide recognition of same-sex marriage. By “lowering the stakes,” Dale argues, Reinhardt gives […]
Archive | Same-Sex Marriage
Reinhardt’s Minimalism, Lowering the Stakes
In contrast to Judge Walker’s maximalist opinion striking down Prop 8, it’s generally accepted that Judge Reinhardt’s opinion was minimalist. There’s a commonsense way in which the opinion is not at all minimalist. It reverses the results of a plebiscite, which followed the expenditure of $80 million and the mobilization of millions of voters. It brings […]
Why Same-Sex Marriage Bans Qualify as Sex Discrimination
By Ilya Somin on February 7, 2012 8:35 pm in Constitutional Law, Constitutional Theory, Gay Marriage, Gay Rights, Originalism, Same-Sex Marriage, Sex Discrimination
Today’s Ninth Circuit decision striking down California’s Proposition 8 banning same-sex marriage is unpersuasive because it claims that the law fails to meet even minimal “rational basis” scrutiny. Eugene Volokh does a good job of explaining why. But there is an alternative constitutional rationale for striking down same-sex marriage bans that avoids this problem. Proposition […]
Thoughts on the Ninth Circuit’s Same-Sex Marriage Decision
1. This is going up to the Supreme Court. I suspect that the backers of Prop. 8 won’t even ask for en banc review by the Ninth Circuit, since they’re unlikely to win there. Depending on how quickly they file their petition for certiorari, the Court will either decide in late September to hear the […]
Place Your Bets
The Ninth Circuit’s opinion on the constitutionality of Prop 8 is expected tomorrow. Chris Geidner summarizes the issues the panel may address: The long anticipated appeals court ruling is expected to address three issues: (1) whether former U.S. District Court Judge Vaughn Walker should have recused himself from hearing the case because he is gay and had […]
Marriage For Me But Not For Thee
John Corvino, a philosophy professor, notes a potential complication for Newt Gingrich’s claim that he has repented, namely, that he continues to commit adultery in the form of remarriage: Gingrich speaks with a straight face about the sanctity of “one man, one woman” marriage. . . His defenders from the religious right . . . claim that Jesus offers forgiveness and redemption […]
Santorum the Sophist
Conor Friedersdorf has a pretty good take-down of Rick Santorum’s reasons for opposing same-sex marriage. Friedersdorf evidently supports same-sex marriage for culturally conservative reasons (praising marriage and its value to families, wanting to preserve it). Santorum’s argument against same-sex marriage, on the other hand, is little more than an assertion of authority and definition. Santorum writes: A […]
Congress
By William Baude, guest-blogging on December 16, 2011 11:19 pm in Beyond DOMA, DOMA, Federalism, Proposed Legislation, Same-Sex Marriage
Amidst all of my many posts about what federal courts should do if DOMA is struck down, I thought I should say a little bit about Congress. First — and this may be obvious to some readers but perhaps not to all — Congress could of course fix the choice of law problem by providing […]
A Common-Law Solution
By William Baude, guest-blogging on December 16, 2011 6:05 pm in Beyond DOMA, DOMA, Federalism, Same-Sex Marriage
So I’ve explained why I reject two of the three possible approaches that federal courts take to the marital choice of law problem. The one that’s left over is the so-called federal common law approach, where courts craft a common-law doctrine for deciding which state’s marriage law is relevant to a federal statute. You might […]
What Happens to Straight People
By William Baude, guest-blogging on December 16, 2011 3:01 pm in Beyond DOMA, DOMA, Federalism, Same-Sex Marriage
Before I get to the last phase of my stint here, I thought it would be helpful for me to address one recurring theme in the comments. John D’s comment this morning is representative: “how are opposite-sex married couples treated in conflict-of-laws situations? We’ll take that, then.” The important thing to recognize is that there […]
What’s Wrong with Klaxon
By William Baude, guest-blogging on December 16, 2011 2:03 am in Beyond DOMA, DOMA, Federalism, Same-Sex Marriage
So earlier this morning (yesterday, Eastern Time, which apparently governs the Volokh Conspiracy), I explained why the federal government does indeed need to look in large part to state law when it tries to figure out whether a couple is married. In this post we’ll discuss another alternative solution with a goofy case name: “Klaxon.” […]
“Hiring [a Lecturer] Stridently Opposed to Gay Rights Goes Against the [University’s] Ethic of Nondiscrimination”
By Eugene Volokh on December 15, 2011 3:57 pm in Freedom of Speech at Colleges and Universities, Same-Sex Marriage
That’s what one Hamline University business school professor said, in opposing the hiring of another prospective business school professor, according to the St. Paul Pioneer Press: A Hamline University professor said Wednesday that hiring [former Republican gubernatorial candidate] Tom Emmer would have been a bad business decision for the school, while Emmer said “political bigotry” […]
What about Full Faith and Credit?
By William Baude, guest-blogging on December 14, 2011 8:53 pm in Beyond DOMA, Constitutional Law, DOMA, Federalism, Same-Sex Marriage
Before we dive deeper into the federal cases I blogged about this morning, I thought it would be helpful to clarify a point featured in several comments. Namely, isn’t the Full Faith and Credit Clause involved here somewhere? The answer is: not very much, and certainly not enough to make the problem go away. The […]
Some Questions and Some Answers about Marital Choice of Law
By William Baude, guest-blogging on December 13, 2011 1:41 pm in Beyond DOMA, DOMA, Federalism, Same-Sex Marriage
Here are a few follow-up questions to my first post this morning. “Burt Likko” says: Prop. 8 is worded: “…only marriage between a man and a woman is valid or recognized in California.” I have a hard time getting past the plain meaning rule to reach a result that an Iowan or Canadian same-sex marriage […]
Marital Choice-of-Law 101
By William Baude, guest-blogging on December 13, 2011 9:14 am in Beyond DOMA, DOMA, Federalism, Same-Sex Marriage
So we’ve established that in a world without DOMA, state law is the natural place to look to figure out whether a same-sex couple is married. Here is where we meet our first conflict-of-laws problem. You surely know that some states allow same-sex couples to marry, and others do not. So what happens when a […]