Archive | Gay Marriage

BREAKING: Federal Judge Strikes Down Ohio Gay Marriage Ban

The AP reports:

A federal judge Monday ordered Ohio authorities to recognize gay marriages on death certificates, saying the state’s ban on such unions is unconstitutional and that states cannot discriminate against same-sex couples simply because some voters don’t like homosexuality.

Although Judge Timothy Black’s ruling applies only to death certificates, his statements about Ohio’s gay-marriage ban are sweeping, unequivocal, and are expected to incite further litigation challenging the law. Ohio’s attorney general said the state will appeal.

UPDATE: More from Chris Geidner (including a link to the opinion). [...]

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New Mexico Supreme Court Strikes Down State Law Limiting Marriage to Opposite-Sex Couples

In today’s decision in Griego v. Oliver, the New Mexico Supreme Court struck down state laws that limit marriage to opposite sex couples. I welcome the result, but would have preferred that the court based its decision on the ground that laws banning same-sex marriage discriminate on the basis of gender.

The court ruled that the laws discriminate on the basis of sexual orientation, and that laws discriminating against gays and lesbians must be subject to heightened intermediate scrutiny “because the LGBT community is a discrete group that has been subjected to a history of purposeful discrimination, and it has not had sufficient political strength to protect itself from such discrimination.” Ruthann Robson has a good summary at the Constitutional Law Prof Blog. The court based its decision on the New Mexico state Constitution rather than the federal constitution, so it almost certainly will not be reviewed by the federal Supreme Court. New Mexico has thereby become the 17th state to recognize same-sex marriage.

Although the court ruled that bans on same-sex marriage are unconstitutional, it rejected the alternative argument that they violate the state constitution because they discriminate on the basis of sex, even though the New Mexico state constitution includes an Equal Rights Amendment that forbids sex classifications unless they have a “compelling justification.” Here is the court’s reasoning on that point:

We do not agree that the marriage statutes at issue create a classification based on sex. Plaintiffs have conflated sex and sexual orientation. The distinction between same- gender and opposite-gender couples in the challenged legislation does not result in the unequal treatment of men and women. On the contrary, persons of either gender are treated equally in that they are each permitted to marry only a person of the opposite gender. The classification at

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Religious Liberty and SSM: A Response to Concerns in Illinois

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 [...]

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How Bigoted Speech Advances Equality

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

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Two Upcoming Speaking Engagements

Over the next two weeks, I will be doing two out-of-town speaking engagements that may be of interest to some of our readers.

On Thursday, October, 3, 12:00-1:15 PM, I will be doing a talk on my new book Democracy and Political Ignorance: Why Smaller Government is Smarter, at Columbia Law School in Jerome Greene Hall, Room 105. Columbia law professor Philip Hamburger will comment.

On Thursday, October, 10, 3:30-5 PM, I will be participating in a panel on the Supreme Court’s recent same-sex marriage decisions at Chicago-Kent Law School, along with Chicago-Kent professors Carolyn Shapiro and Kathy Baker. My presentation will expand on my answer to a question that Justice Scalia famously posed in oral argument in the Proposition 8 case: When did laws banning same-sex marriage become unconstitutional? [...]

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State Denies In-State Tuition to Same-Sex Spouse of a Servicemember

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 [...]

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DOMA and Dignity

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 [...]

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Labor Department Extends ERISA Protections to Same-Sex Spouses

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

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Did the Obama Administration have a Duty to Defend DOMA?

I have a somewhat different perspective than co-blogger Todd Zywicki on the Obama administration’s decision not to defend DOMA in court. In my view, the President’s duty to uphold the Constitution supersedes any obligation he might have to defend a federal statute. Therefore, if he sincerely believes that a federal law is unconstitutional, he should choose not to defend it. I outlined my reasoning in greater detail in this post, written at the time the administration first decided not to defend Section 3 of DOMA. That post addresses both theoretical and practical arguments against the president’s decision. [...]

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Right, Left, and the Standing Issues in the Gay Marriage Cases

Both of today’s gay marriage cases raised complex issues of whether the parties had “standing” to appear in federal court. In the Windsor case striking down Section 3 of DOMA, the Obama Administration’s refusal to defend DOMA led the Bipartisan Legislative Assistance Group, made up of members of Congress, to undertake the task. In Hollingsworth v. Perry, California Proposition 8 was defended by a group of private citizens, because the state government chose not to support it. There were serious questions about whether both the BLAG and the Prop 8 supporters had a significant enough stake in the case to qualify for standing under Supreme Court precedent. Ultimately, a 6-3 majority of the Court ruled that BLAG did have standing [Clarification - 5 of them ruled only that BLAG could present arguments defending the interests of the federal government, without reaching the issue of whether BLAG had standing in its own right], while a 5-4 majority concluded that the Prop 8 supporters did not.

Until recently, opinion on constitutional standing issues tended to divide along predictable ideological lines. Conservative jurists usually supported narrow notions of standing, seeking to limit the range of parties who could get into federal court, while liberals supported broad ones. But as I previously pointed out here and here, these ideological alignments have begun to break down over the last few years.

Today’s decisions continue that trend. In the DOMA case, the four liberal justices and Justice Kennedy, the most moderate conservative, concluded that the BLAG has standing [but see update below]. But so too did the conservative Justice Alito. Conservative justices Roberts, Thomas, and Scalia dissented. In Hollingsworth, the distribution of votes was even less ideological. The majority opinion written by the conservative Chief Justice Roberts was joined by liberals Ruth Bader [...]

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The Impact of Today’s Gay Marriage Decisions

It may be a long time before the effects of today’s gay marriage decisions are fully evident. But it seems clear that they represent important progress for same-sex marriage and gay rights more generally. The DOMA case is also a modest success for those who seek to enforce constitutional limits on federal power.

Obviously, the Court’s invalidation of Section 3 of DOMA in the Windsor case gives married gay couples the same rights under federal law as those now enjoyed by participants in opposite-sex marriages. For now, the effects are limited to people married in the 12 states that currently recognize gay marriage, plus California (which now has to recognize gay marriage as a result of the Court’s decision in the Proposition 8 case). But the number of such states is rapidly growing.

Much of the DOMA decision’s reasoning is based on federalism considerations. That aspect of the ruling will not help future plaintiffs seeking to challenge state laws banning gay marriage. But Justice Kennedy’s opinion for the Court also emphasizes that laws based on “animus” against gays and lesbians are unconstitutional:

DOMA seeks to injure the very class [of married gay couples that] New York seeks to protect. By doing so it violates basic due process and equal protection principles applicable to the Federal Government. See U. S. Const., Amdt. 5; Bolling v. Sharpe, 347 U. S. 497 (1954). The Constitution’s guarantee of equality “must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot” justify disparate treatment of that group.The Constitution’s guarantee of equality “must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot” justify disparate treatment of that group.

While anti-gay animus is not the only motive for laws banning gay [...]

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The DOMA Decision and Federalism

Justice Anthony Kennedy’s majority opinion for the Court in the DOMA case relies partly on federalism considerations, striking down Section 3 of DOMA in part because it goes beyond the usual scope of federal authority. In reaching this conclusion, it cites (among other sources) the amicus brief submitted by several federalism scholars, including co-bloggers Randy Barnett, Dale Carpenter, Jonathan Adler, and myself (pg. 23). As Kennedy points out, the avowed purpose of DOMA was to promote traditional heterosexual marriage, and “influence or interfere with state sovereign choices about who may be married”:

The history of DOMA’s enactment and its own text demonstrate that interference with the equal dignity of same-sex marriages, a dignity conferred by the States in the exercise of their sovereign power, was more than an incidental effect of the federal statute. It was its essence. The House Report announced its conclusion that “it is both appropriate and necessary for Congress to do what it can to defend the institution of traditional heterosexual marriage. . . . H. R. 3396 is appropriately entitled the ‘Defense of Marriage Act.’ The effort to redefine ‘marriage’ to extend to homosexual couples is a truly radical proposal that would fundamentally alter the institution of marriage.” H. R. Rep. No. 104–664, pp. 12–13 (1996). The House concluded that DOMA expresses “both moral disapproval of homosexuality, and a moral conviction that heterosexuality better comports with traditional (especially Judeo-Christian) morality…” The stated purpose of the law was to promote an “interest in protecting the traditional moral teachings reflected in heterosexual-only marriage laws.” Ibid. Were there any doubt of this far-reaching purpose, the title of the Act confirms it: The Defense of Marriage.

The arguments put forward by BLAG [defending DOMA before the Supreme Court] are just as candid about the congressional purpose to influence or

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Assessing the Case Against Gay Marriage

Northwestern University Law Professor Andrew Koppelman recently posted an excellent article assessing recent arguments against gay marriage put forward by leading anti-gay marriage legal scholars and political philosophers. Here is the abstract:

The case for same-sex marriage has been politically triumphant, and its victory looks inevitable. It nonetheless is curiously incomplete. It has succeeded, not because the most sophisticated opposing arguments have been considered and rejected, but because those arguments have not even been understood. Those arguments rest on complex claims, either about what sustains the stability of heterosexual marriages or about what those marriages essentially are. The most familiar claim, that recognition of same-sex marriage jeopardizes the heterosexual family, demands an account of the transformation of family norms in the past half century. Major social change should not be undertaken without a full awareness of what is at stake.

This essay remedies a major gap in the literature. It critically surveys and evaluates the arguments against same-sex marriage. You may not be persuaded by them. In fact, you shouldn’t be persuaded by them. But you need to know what they are.

Koppelman and I are at odds on a wide range of other political and constitutional issues. But I think he’s mostly on target here. As he explains, arguments against gay marriage that do not reduce to simple anti-gay bigotry can be divided into two categories: Claims that gay marriage (and possibly gay sex) is inherently wrong, and claims that it has negative social consequences, such as undermining heterosexual marriage or harming children. The first category of arguments is largely question-begging and incoherent, for reasons Koppelman outlines well. For example, some advocates claim that marriage (and perhaps sex) are only morally defensible if they take a procreative form, but then somehow try to stretch that concept to include relationships [...]

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Reassessing the Impact of Pro-Gay Marriage Judicial Decisions

With Rhode Island and Delaware recently becoming the tenth and eleventh states to permit same-sex marriage and Minnesota likely to soon become the twelfth, now is a good time to reconsider the impact of judicial decisions requiring state recognition of gay marriage. The trend towards gay marriage began in 2003, with a Massachusetts Supreme Judicial Court decision holding that the state constitution required recognition of same-sex marriage. At first, nearly all the states that recognized gay marriage did so as a result of judicial decisions rather than legislation. In this way, it seems clear that the cause of gay marriage benefited greatly from judicial action.

Nonetheless, scholars such as Gerald Rosenberg and Jeff Rosen argued that such litigation harmed the cause of gay rights more than it helped it, because it tended to generate a political backlash, a theory that gained some credence in 2008, when Proposition 8 reversed a pro-gay marriage California Supreme Court decision. In a series of posts written in 2008-2009, I argued that such skepticism was unjustified, and that pro-gay marriage judicial decisions were a major net benefit for the cause of gay rights, backlash notwithstanding.

I think recent events largely vindicate my side of this debate. Since early 2009, the number of states legalizing same-sex marriage has grown from four to a soon-to-be twelve, with most of the recent ones doing so through the legislative process. This undercuts claims that judicial action undercuts political action. Public opinion has rapidly moved in a pro-gay marriage direction, undercutting arguments that litigation would turn the public against the cause. And, of course, the Supreme Court might be on the brink of requiring recognition of gay marriage from some or all of the states that still deny it. That is highly unlikely to have happened [...]

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Linda Greenhouse’s Misrepresentation of the Federalism Argument Against DOMA

In a recent New York Times column, prominent Supreme Court commentator Linda Greenhouse grossly misrepresents the federalism argument against the Defense of Marriage Act put forward in an amicus brief co-signed by several federalism scholars, including co-bloggers Randy Barnett, Jonathan Adler, Dale Carpenter, and myself. She claims that it is a “Trojan horse” for an effort to block same-sex marriage, and that it is somehow inconsistent with various Supreme Court decisions striking down state laws that violate individual constitutional rights protected by the Fourteenth Amendment:

Beware of conservatives bearing gifts.

Ever since last week’s frustrating Supreme Court argument in the Defense of Marriage Act case, I’ve been wondering whether the attack on DOMA will turn out to be a constitutional Trojan horse. It may bring victory: the demise of a spiteful federal statute, enacted by an opportunistic Congress and signed into law 17 years ago by a cowardly Bill Clinton. But at what price?..

[S]triking down DOMA on federalism grounds is a truly bad idea, and the campaign for marriage equality would be worse off for it. To explain the argument is to reveal its dangers. A ruling that left the states to their own devices when it comes to marriage would take the equal protection guarantee out of the picture…

It would, of course, provide the full benefits of marriage to those living in states that chose to recognize same-sex marriage. But it would snatch away the promise for those living elsewhere, particularly if the decision was based not only on the asserted absence of federal authority but on exaggerated notions of state sovereignty anchored in the Tea Party’s favorite constitutional amendment, the 10th….

Just such a vigorous constitutionally based states’-rights argument was put forward in a brief filed in the case last month by a half-dozen law

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