The governor is signing the bill now. Hawaii has come full circle since the 1990s when the possibility of marriage for same-sex couples led to the passage of the Defense of Marriage Act. Hawaii makes 16 states recognizing same-sex marriages. [...]
Author Archive | Dale Carpenter
Last week I wrote about the response of a group of us (Andy Koppelman, Doug NeJaime, Ira Lupu, William Marshall, and me) to calls for broad religious-liberty exemptions in laws authorizing same-sex marriage. Specifically in the context of the proposed marriage bill in Illinois, which has since passed, we argued that the proposals from several religious-liberty scholars urged for several years now in state legislatures around the country are, in short, overblown and overdrawn. It is the first time a group of scholars has formally and publicly responded to what some legislators might have thought was a solid scholarly consensus behind the idea that same-sex marriage creates a distinct crisis for religious liberty.
Several of the scholars favoring broad exemptions have now replied to our critcisms in the form of a blog post at Mirror of Justice, the Catholic legal blog, although the group is not limited to Catholic opponents of same-sex marriage. The replying scholars are Tom Berg, Carl Esbeck, Edward Gaffney, Rick Garnett, Doug Laycock, Bruce Ledewitz, Christopher Lund, Michael Perry, and Robin Fretwell Wilson. Some of the differences between the two groups of scholars seem to involve a venue question of whether marriage laws — as opposed to antidiscrimination laws — are the appropriate place for clarifying existing religious-liberty protections. Some of the differences are deeper, involving what should be recognized as an appropriate religious-conscience exemption from generally applicable antidiscrimination laws. In any event, I recommend that readers interested in this dispute among legal scholars about religious liberty and same-sex marriage read this latest installment from those who favor broad exemptions. [...]
The Illinois legislature is considering a bill that would extend marriage to same-sex couples. In response, a group of religious-liberty scholars have urged the governor and legislative leaders to include what they call a “marriage conscience protection” that would significantly expand the scope of religious exemptions already provided in the bill, and would insert additional substantive exemptions that would broadly expose married same-sex couples to discrimination in both the public and private spheres. The letter objecting to the Illinois marriage bill follows very similar warnings about religious liberty that these same scholars have sent to many other states considering same-sex marriage legislation. (See, for example, a link to some of their letters here.)
There has been significant debate about whether same-sex marriage actually generates additional problems for religious liberty, and about whether and to what extent gay-marriage bills should incorporate special protection for religious liberty. (See, for example, my posts here, here, and here, and the excellent work of Doug NeJaime here.) But there has been no formal response by scholars to the call for broad exemptions in the context of a pending state same-sex marriage bill. That may have given some legislators the mistaken impression that there is a scholarly consensus behind the specific concerns and broad carve-out proposals advanced by this particular group of religious-liberty scholars.
That starts to change as of today in Illinois. Law school professors who support both protecting religious liberty and recognizing the marriages of same-sex couples have signed an open letter responding to the religious-liberty scholars’ concerns and their proposed “marriage conscience protection.” The signers of the response are Andy Koppelman (Northwestern University), Doug NeJaime (University of California-Irvine), Ira Lupu (George Washington University), William P. Marshall (University of North Carolina), and me. The letter was coordinated with the help of Third Way, especially its Director of Social Policy & Politics (and my former student [...]
In a splendidly written essay in The Atlantic, Jonathan Rauch makes the case for protecting “hate speech” in the context of a proposed boycott by some gay-rights advocates of the movie Ender’s Game (released Nov. 1). The movie is not itself said to be homophobic but, they urge, it should be boycotted because it is based on a sci-fi novel by Orson Scott Card, who has suggested that enacting gay marriage might lead to the recruitment of children into homosexuality. Rauch notes that anti-gay speech has had a critical role in advancing gay rights by requiring advocates to calmly and reasonably rebut opposing claims, allowing the public to assess the factual correctness and moral persuasiveness of the competing claims. It’s a classic Holmesian marketplace-of-ideas theory of free speech:
Our great blessing was to live in a society that understands where knowledge comes from: not from political authority or personal revelation, but from a public process of open-ended debate and discussion, in which every day millions of people venture and test billions of hypotheses. All but a few of those theories are found wanting, but some survive and flourish over time, and those comprise our knowledge. . . .
America’s transformation on gay rights over the past few years is a triumph of the open society. Not long ago, gays were pariahs. We had no real political power, only the force of our arguments. But in a society where free exchange is the rule, that was enough. We had the coercive power of truth.
History shows that the more open the intellectual environment, the better minorities will do. We learn empirically that women are as intelligent and capable as men; this knowledge strengthens the moral claims of gender equality. We learn from social experience that laws permitting religious pluralism make societies more governable; this knowledge
The state’s Department of Justice has concluded that the state’s administrative agencies can (and probably must) recognize same-sex marriages validly performed in other states, even for purposes of providing state-law benefits. The opinion, dated October 16, was revealed in a memo from the head of the state’s agencies directing those agencies to treat same-sex couples married out-of-state as legally married in Oregon. The state DOJ has not yet taken the position that Oregon must allow same-sex couples to marry in the state, but its logic certainly leads there. For now (and I mean, for today), same-sex couples will have to get married elsewhere, like California or Washington, and return to Oregon to claim benefits. (You can read the administrative memo and the Oregon DOJ opinion in the body of the link.)
The rationale for the state DOJ opinion is this: Like other states, Oregon recognizes marriages from out of state even if those marriages could not have been entered in Oregon. Yet, in 2004, the state’s voters amended the state constitution to provide that only opposite-sex marriages could be “valid” or “legally recognized” — language that bans both in-state and out-of-state gay marriages. But this provision, argues the state DOJ, likely violates the federal Constitution because it denies equal protection. “We cannot identify any defensible state interest, much less a legitimate or compelling one, in refusing to recognize marriages performed between consenting, unrelated adults under the laws of another state, marriages that would be unquestionably accorded recognition if the spouses were of opposite sexes,” argues the Oregon DOJ. There’s “no benefit” to Oregon in that limitation, it asserts, and “no injury would result from recognizing the marriages.” The opinion goes on to speculate that a court would apply heightened scrutiny to a prohibition on out-of-state same-sex marriages, either because marriage is a fundamental right or because gay [...]
Tomorrow I’ll be discussing the Court’s decision in United States v. Windsor with Professor Lynn Wardle of BYU Law School. We’ll be there at the invitation of the Duquesne University Law School student chapter of the Federalist Society. The event begins at Noon. [...]
The New Jersey Supreme Court has agreed to hear Garden State Equality v. Dow, a challenge to the state’s limitation of marriage to opposite-sex couples. The trial court recently held the law unconstitutional on the grounds that after United States v. Windsor federal benefits remain unavailable to same-sex couples in civil unions, denying them full equality. All briefing will be completed by December 3 and the oral argument will be heard in early January. The court has not yet decided whether to grant a stay of the trial judge’s decision allowing same-sex marriages to begin on October 21.
In any event, my expectation is that gay marriage will be legal in New Jersey within six months. The only question is whether that will occur by judicial decision or because supporters manage to get enough votes in the state legislature to override Governor Christie’s veto of a gay marriage bill. The court’s speedy consideration of the issue is probably a good sign for Garden State Equality’s litigation, but may somewhat reduce the likelihood of legislative action. [...]
The effects of federal recognition of same-sex marriages across the full spectrum of federal benefits, including for those domiciled in states that ban the recognition of their marriages for state purposes, are bubbling up on an almost daily basis. According to the Dallas Voice, the University of Texas-San Antonio (UTSA) has denied an in-state tuition rate to the same-sex spouse of an active duty servicemember who is stationed in Texas, which bans same-sex marriages in its state constitution. The military recognizes the marriages of servicemembers to same-sex spouses for all purposes and wherever the servicemember is stationed. Texas doesn’t have to recognize same-sex marriages for state purposes, so ordinarily its public universities would not have to provide any benefits based on such marriages. But in this case, federal law provides that federal aid is available to schools only if they grant spouses of military members the favorable rates. The Higher Education Opportunity Act, 20 U.S.C. 1015d, provides:
In the case of a member of the armed forces who is on active duty for a period of more than 30 days and whose domicile or permanent duty station is in a State that receives assistance under this chapter, such State shall not charge such member (or the spouse or dependent child of such member) tuition for attendance at a public institution of higher education in the State at a rate that is greater than the rate charged for residents of the State.
The president of the American Military Partners Association says that UTSA better get with the program or risk losing federal funds. “Federal law specifically requires that universities grant in-state tuition rates to the spouses of active duty service members,” he told the Voice. “We urge the federal government to immediately withhold any federal funds that UTSA is receiving through the [...]
Why is the Defense of Marriage Act unconstitutional? Here are two propositions that United States v. Windsor might be thought to stand for:
(1) The federal government’s decision not to recognize state-sanctioned marriages of same-sex couples was an unconstitutional intrusion on federalism (a structural claim); or
(2) The federal government’s decision not to recognize state-sanctioned marriages of same-sex couples was an unconstitutional infringement on a substantive right, e.g., the right to marry (a liberty claim).
These are among the many plausible interpretations of Windsor, but some explanations are more plausible than others. After consuming several pages discussing the interests of the states in controlling family law, Justice Kennedy expressly states that the Court is not relying strictly on federalism. Surely a statement in a decision suggesting what it means should have some bearing on what it means. The Chief Justice, in dissent, thinks federalism is nevertheless critical to the result and would help to distinguish the case from one that involved a claimed constitutional right to state recognition of same-sex marriages. He might be right about that. But the Chief Justice’s explanation may also be more a hope about the limited consequences of an alternative Windsor than a reading of the actual Windsor (see Justice Scalia’s dissent).
As for the second proposition, the Court certainly mentions liberty several times. And the context is one in which the plaintiffs claim that “liberty” protects a right to have their marriages fully recognized by government. The Court sets for itself the task of deciding “whether the resulting injury and indignity is a deprivation of the liberty protected by the Fifth Amendment.” Slip op. at 19. It concludes that Congress “cannot deny the liberty protected by the Due Process Clause of the Fifth Amendment.” Op. at 25. But my sense is that reliance on the word “liberty” here is more a doctrinal necessity — this is a decision rooted in [...]
Sixty members of the U.S. House of Representatives (58 Republicans and 2 Democrats) have introduced legislation, the “Marriage and Religious Freedom Act” (MARFA), that would prohibit any “adverse action” by the federal government against any ”person” who acts on the basis of a religious belief opposing same-sex marriage or opposing sexual relations outside of opposite-sex marriages. “Adverse actions” include action by the IRS to strip a group of favorable tax treatment, like tax-exempt status. But it also includes actions related to employment, accreditation, grants, contracts, or benefits otherwise available under federal law. And it broadly prohibits “discrimination” against those who oppose same-sex marriage and non-marital sex. “Person” includes nonprofit and for-profit corporations, companies, associations, firms, partnerships, societies, and joint stock companies.
MARFA raises very interesting questions of statutory construction, public policy, antidiscrimination law, and potential applications and burdens for married same-sex couples. It also raises potential Establishment Clause issues in its partiality toward certain religious doctrines (i.e., applying only to those who oppose, rather than favor, same-sex marriage for religious reasons). After United States v. Windsor, there are also potential Equal Protection problems in MARFA’s targeted protection of acts motivated by opposition to same-sex marriage. I haven’t looked at the proposal in detail, but my preliminary reaction is that parts of MARFA (especially those constraining the IRS) will be politically popular, and that other parts may be seen as overreaching. Whether there is an actual need for any of it, politically popular or not, is an additional question, and whether its protections justify the burdens it may place on married couples is yet another. When I’ve had a chance to look at it more closely, I may offer more detailed thoughts.
I have a copy of the legislation and will post a link as an update when available.
The effect of United States v. Windsor continues to ripple through federal law, expanding by leaps and bounds the rights and protections afforded to same-sex spouses. The effect has been magnified by a friendly federal bureaucracy under the Obama administration, which is widely adopting a place-of-celebration rule for recognizing same-sex marriages under federal laws using words like ”spouse” and “marriage,” thus extending federal recognition to same-sex spouses even if they live in states that don’t themselves recognize their marriages.
The latest installment in this story is the announcement today by the Labor Department that henceforth it will interpret the Employee Retirment and Income Security Act of 1974 (ERISA), which governs most private pension and health plans, to include same-sex as well as opposite-sex spouses.
[T]he term “spouse” will be read to refer to any individuals who are lawfully married under any state law, including individuals married to a person of the same sex who were legally married in a state that recognizes such marriages, but who are domiciled in a state that does not recognize such marriages. Similarly, the term “marriage” will be read to include a same-sex marriage that is legally recognized as a marriage under any state law.
The Department defended its decision to adopt a place-of-celebration rule rather than a place-of-domicile rule based on its reading of Windsor and policy considerations, like a need for uniformity and certainty in coverage of employees who move from one state to another.
This is the most natural reading of those terms; it is consistent with Windsor, in which the plaintiff was seeking tax benefits under a statute that used the term “spouse”; and a narrower interpretation would not further the purposes of the relevant statutes and regulations. . . .
A rule that recognizes marriages that are valid in the state in
Now that the president has vowed to seek Congress’s approval even for what he promises will be very limited military action in Syria, an interesting question arises. What will the authorization authorize him to do?
The president will want an expansive resolution, allowing him maximum flexibility to do what he thinks necessary to accomplish what he determines to be the goals of military action. Skeptics on the right and left will push for a narrower authorization, carefully circumscribing his authority to a limited response to the use of chemical weapons by Syria. Some of the issues that may arise relate to the purpose, scope, and duration of the intervention. Will the authorization state the purposes of the intervention (punishment, deterrence, disabling the regime’s ability to use chemical or other forbidden weapons, protecting civilians, etc.) and then try to limit the authorization to those purposes? How much flexibility will the president have to respond to unexpected developments, like a post-bombing retaliation by Syria against its neighbors or retaliation by terrorist groups or nations like Iran? Will the authorization be sunsetted, or will it be temporally open-ended? Will Congress attempt to select the type or magnitude of force that might be used by, for example, limiting it to air strikes rather than to the introduction of ground troops?
As we’ve already seen in the run-up to this proposed intervention in Syria, the specter of the Bush era will hang over the debate. After 9/11 there was some debate over the substance of the eventual Authorization for the Use of Military Force (AUMF). The Bush administration wanted maximum executive power, including a specific provision authorizing the president to order military force within the United States itself. While that language was ultimately omitted, the final version of the AUMF opted for breadth:
[T]he President is authorized to use all
In the aftermath of United States v. Windsor, the Obama administration is adopting a generous position on the availability of federal benefits to married same-sex couples, as co-blogger Will Baude pointed out yesterday in a post on the IRS ruling regarding their federal tax status. So far, in contrast to their almost open resistance to Lawrence v. Texas, lower federal courts are also reading the decision expansively. Today, a district court in California granted summary judgment to a married lesbian veteran who was denied added disability benefits that would have been available if she had been married to a man, even though the denial did not rest on DOMA. The brief opinion is here.
The Department of Veterans Affairs had taken the position that Windsor struck down only DOMA, not the specific provision of federal law under which veterans’ benefits are determined and that independently defined a “spouse” as “a person of the opposite sex.” 38 U.S.C. Section 101 (c) . The law stood, said the VA, until Congress changed it or a court struck it down as unconstitutional. (The Bi-Partisan Legal Advisory Group withdrew its defense of litigation like this after Windsor.)
The district judge determined that, in light of Windsor, Title 38′s limitation of benefits to opposite-sex spouses was not rationally related to the federal government’s interests in promoting gender equality, expanding veterans’ benefits, ensuring that servicemembers reach their maximum potential, promoting unit readiness and cohesion, or enhancing recruiting and retention.
Quite aside from its significance on the issue of same-sex marriage, one consequence of Windsor could be that federal courts are gradually accepting heightened scrutiny when it comes to discrimination against homosexuals. A second possibility is that, apart from increased skepticism of anti-gay discrimination, Windsor will lead to a further erosion of the (in)famously deferential rational-basis test as a free pass for legislation. [...]