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 [...]
Today, the Missouri Supreme Court decided Glossip v. Missouri D.O.T., a case brought by a man seeking survivor’s benefits from the death of his same-sex partner, a Missouri patrolman. Missouri does not let same-sex couples marry, nor recognize same-sex marriages from elsewhere. But Missouri law provides survivor’s benefits only to married couples. So Glossip argued that the law discriminated unconstitutionally on the basis of sexual orientation. (He did not challenge Missouri’s ban on same-sex marriage.) The Missouri Supreme Court upheld the law, 5-2.
I know some folks are only interested in these opinions as a matter of generally keeping score in the ongoing fight about same-sex marriage. And that is obviously its immediate practical relevance.
But the case also seems to raise an important and unsolved conceptual issue in antidiscrimination law. When a law discriminates against a group of people that include all of the members of a class, or a strict subset of the members of a class, is it discrimination against that class?
For example when a law discriminates against pregnant women, is that discrimination against women? (The Court has said no, but many people disagree and Congress has defined pregnancy as a form of statutory sex-discrimination.)
At a time when only men could become veterans, did veterans’ preferences discriminate against women? (The Court did not answer the question in Massachusetts v. Feeney, though it implied that the answer was probably “no.”)
When a law discriminates in favor of those whose ancestors could vote before 1866 (a classic “grandfather” clause), does that law discriminate on the basis of race? (The Court has said yes.)
A law discriminating in favor of married couples, when all same-sex couples are unmarried and many opposite-sex couples are also unmarried, has a similar form. All couples who benefit from [...]
This story has an interesting wrinkle in the question of which marriages count for purposes of federal law. Two men were married by the Cheyenne & Arapaho tribes in Oklahoma. The marriage is apparently permitted by tribal law even though Oklahoma law would not permit it. (Thanks to Chad Flanders for the link.)
The news story suggests that the federal government will recognize this as a “lawful” same-sex marriage for tax purposes, even though it did not take place under state law. That appears to be consistent with the IRS revenue ruling, which applies to “any domestic or foreign jurisdiction having the legal authority to sanction marriages.” (It looks to me like that’s an omission in the IRS press release that announced that revenue ruling. The press release says that marriages “one of the 50 states, the District of Columbia, a U.S. territory, or a foreign country will be covered by the ruling.” But a tribe is not any of those things.) [...]
On Friday the New Jersey Supreme Court denied a stay in the same-sex marriage litigation, allowing marriages to begin today. Today, Governor Christie announced that he’s withdrawing the state’s appeal. That seals the deal. I guess I won’t be finishing that essay I was writing about New Jersey’s civil unions.
I’ve seen some criticism from the right of Governor Christie’s conduct. But this isn’t quite like when executives in other states have declined to appeal trial court rulings against them. As I explained Friday, the New Jersey Supreme Court’s ruling made quite clear how it was going to decide the case (a little hastily, it seems to me, but it’s their prerogative). And the ruling appears to have been based on state law, so there would have been no basis for involving the Supreme Court. Under those circumstances, it seems reasonable for Christie to conclude that any further challenges would be pointless — even if we assume that he actually wanted to win the litigation. [...]
As Dale and I have blogged about (see here, here, here, and here), the New Jersey courts are hearing a claim that the state’s civil union regime is no longer constitutionally adequate and that the state and federal constitutions now require same-sex marriage. That litigation was recently fast-tracked to the New Jersey Supreme Court. Today the New Jersey Supreme Court denied a stay, meaning that marriages can begin Monday.
Normally, the decision on a stay is not a decision on the merits. But this denial of the stay was not normal. After discussing factors like irreparable injury, the Supreme Court spent several pages discussing the state’s substantive arguments, concluding that:
– “The State’s thoughtful position about what federal law should provide cannot substitute for federal action.”
– “Because State law offers same-sex couples civil unions but not the option of marriage, same-sex couples in New Jersey are now being deprived of the full rights and benefits the State Constitution guarantees.”
– “The State has not shown a reasonable probability or likelihood of success on the merits.”
While the court concluded that “Additional arguments on the merits will be considered in January 2014,” today’s decision (which was unanimous) makes it pretty clear that there’s no point. The New Jersey Supreme Court recognized a right to same-sex marriage today, and it’s hard to imagine that it would change its mind. [...]
The Northwestern Law Review Colloquy is running an interesting-so-far series on United States v. Windsor. The first two parts of the series are up, and both discuss post-DOMA choice of law issues.
First is DOMA’s Ghost, an essay by Brad Greenberg on copyright reversionary interests. The Copyright Act is one of the few federal statutes that contains an explicit marital choice-of-law rule — one that looks to the author’s domicile at the time of his/her death.
Greenberg notes that this rule is inconsistent with the Obama Administration’s general approach to the post-DOMA choice-of-law problem, which is to use the state of celebration wherever possible. He also argues that it would be better to have a rule whose scope would be known at the time of authorship (like the place-of-celebration rule). He suggests statutory reform. While we’re at it, I’d suggest statutory reform of the social-security choice of law rule. Even better would be if Congress would just propose a uniform marital choice-of-law standard for federal law generally . . .
Second is The Moonscape of Tax Equality, by Anthony Infanti, a paper on post-DOMA tax issues. Tax marital law is complicated, and attentive readers will recall that I posted some (partly skeptical) thoughts about the IRS’s marital choice of law guidance, which says that marriages will be recognized “as long as they were married in a state whose laws authorize the marriage of two individuals of the same sex,” regardless of where they move later. Infanti also has some criticisms, that overlap partly (but not entirely) with mine.
– For one thing, Infanti worries that the IRS guidance is vague about so-called “evasive” marriages — marriages where the couple lives in an anti-same-sex marriage state but travels to a permissive state to get married. He says “The [...]
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. [...]
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? [...]
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 [...]