Eighty-seven percent of constitutional law professors back marriage for same-sex couples, and 7 out of 10 believe the federal Defense of Marriage Act is unconstitutional, but only a slight majority of 54% think the federal Constitution requires states to recognize same-sex marriages. That’s the result of a survey of 485 constitutional law professors that I conducted this summer with the help of my indefatigable and indispensable research assistant, Minnesota 2L Samuel Light. In this post, I want to highlight some of the main results from the survey.
The survey was prompted by a comment from a pro-SSM law professor that the constitutional debate on the issue among scholars was over. According to him, there was no remaining doubt among specialists that recognition of SSM is required by the Constitution. I suspected this claim was too strong. Despite a common criticism, many constitutional law professors pride themselves on being able to separate their policy preferences from their constitutional views. (Whether they succeed in doing so is a different question.) So I wanted to test the hypothesis that the matter of same-sex marriage has been settled by asking professors themselves.
The survey was also prompted by the progress of some major cases challenging anti-SSM laws. One of the cases challenges California’s Prop 8; others take on the Defense of Marriage Act. These cases are teed up to reach the United States Supreme Court in the 2012 Term. (The Court will consider whether to take the Prop 8 case and at least one of the DOMA cases at its September 24 conference.) The cases don’t necessarily call for a comprehensive answer to the question whether there is a constitutional right to same-sex marriage, but that large question will definitely be in the background.
The views of constitutional law professors do not determine outcomes in constitutional cases and probably play no role in the [...]