Archive | Same-Sex Marriage

Utah Same-Sex Marriages Valid for Purposes of Federal Law

A few minutes ago, Attorney General Holder announced that Utah same-sex marriages “will be recognized as lawful and considered eligible for all relevant federal benefits on the same terms as other same-sex marriages.” This is even though “the governor has announced that the state will not recognize these marriages pending additional Court action.”

This may sound a little strange — didn’t the federal government tell us that marital validity was a question of state law? — but from what I can tell, the strangeness is mostly a consequence of the legal position taken by the state of Utah. Yesterday the Utah Attorney General told clerks that “Based on our analysis of Utah law, the marriages were recognized at the time the ceremony was completed,” and further emphasized that it wanted to facilitate “same-sex couples who solemnized their marriage prior to the stay to have proper documentation in states that recognize same-sex marriage.” Hence it sounds like Utah takes the view that the marriages were in fact permitted by Utah law during the pendency of the stay litigation.

Whether that view of Utah law is correct is an interesting fed. courts problem, but I can see why the Department of Justice feels entitled to rely on the Utah Attorney General’s statement of Utah law. The federal government’s (mostly) consistent current position is that a marriage counts for federal law purposes if it was lawful under state law at the time of celebration, and today’s announcement appears consistent with that position.

(Of course, whether that more general reliance on state law at the time of celebration is correct is also an interesting question, and the subject of this article.)

UPDATE: Ed Whelan has a more skeptical assessment of Attorney General Holder’s advice. He also discusses the Utah announcement (which a separate [...]

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NYU Journal of Law and Liberty’s Supreme Court Review-Preview

The newest issue of the NYU Journal of Law and Liberty is available online. It contains their special Supreme Court Review-Preview, which in turn contains my short article, Interstate Recognition of Same-Sex Marriage after Windsor, which I’ve mentioned here before. It begins:

Last June, the headlines said that the Supreme Court’s decision in United States v. Windsor struck down the Defense of Marriage Act. But that is only half true. The Defense of Marriage Act had two important provisions. Section Three defined “marriage” for purposes of federal law as being limited to the union of one man and one woman. It was invalidated in Windsor. But the Act’s other section, Section Two, says that states are not required to recognize one another’s same-sex marriages. Section Two was not invalidated, but it may be soon.

The Review-Preview also contains interesting-looking articles by Fernando Teson, Barry Friedman, Ilya Shapiro, Peter Shane, and by co-bloggers David Bernstein and Nick Rosenkranz. Richard Epstein wrote the introduction.

(I haven’t yet figured out how to download a PDF from the journal website, but the final version of mine is also on my SSRN page.) [...]

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SCOTUS Stays Same-Sex Marriage in Utah

This morning the Supreme Court granted Utah’s application for a stay of the district court’s injunction requiring state officials to recognize same-sex marriage within the state.  The stay application was initially submitted to Justice Sonia Sotomayor, who referred it to the entire court. As Lyle Denniston observes, there is no indication that any member of the Court objected to the stay.  The stay is to remain in place until the resolution of Utah’s appeal before the U.S. Court of Appeals for the Tenth Circuit.   Rick Hasen has more. [...]

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Same-Sex Marriage Heads Back to Supreme Court

The U.S. Court of Appeals for the Tenth Circuit’s refusal to stay a district court decision invalidating Utah’s ban on same-sex marriage is sending the issue back to the Supreme Court less than six months after last summer’s the Windsor and Perry decisions.  Adam Liptak reports:

The question for the Supreme Court in the short term will be whether to block Judge Shelby’s ruling while appeals proceed. The state’s request will initially be directed to Justice Sonia Sotomayor, the member of the court responsible for overseeing the Tenth Circuit, but she will almost certainly refer the matter to the full court. It is likely to act within several days.

The Supreme Court will face difficult calculations, ones it did not have to confront in reviewing decisions from federal courts in California striking down Proposition 8, the state’s ban on same-sex marriage. In that case, the United States Court of Appeals for the Ninth Circuit, in San Francisco, stayed both the trial judge’s ruling and its own as appeals went ahead.

The ultimate argument for a stay would be to preserve the status quo while the underlying legal issues are resolved.  Were Judge Shelby’s decision to be overturned, courts would face the choice of invalidating those same-sex marriages conducted in the interim, or rewarding those who raced to the courthouse in the wake of the initial decision.  Yet, as Rick Hasen notes, that will not buy the Court all that much time.  It may be too late for a decision on the merits of this issue this term, but the Supreme Court may have little choice to decide whether there is a constitutional right to same-sex marriage as soon as 2015.

UPDATE: According to Andrew Koppelman, the Utah AG’s “goof” is the reason there was no stay in the [...]

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The Limited(?) Nature of the Ohio Same-Sex Marriage Decision

Like Jonathan (posting directly below) I saw a lot of early reports suggesting that Judge Black, in the Southern District of Ohio, had invalidated Ohio’s ban on same-sex marriage. But Chris Geidner has a link to the actual decision, and as a technical matter it is slightly more limited: it invalidates Ohio’s ban as applied to those who have “valid same-sex marriages from other jurisdictions.”

This makes more sense. Judge Black had already issued a decision that said basically the same thing a few months ago. I discuss that decision (criticizing it in part and endorsing it in part) in my latest article in the NYU Journal of Law and Liberty’s Supreme Court issue: Interstate Recognition of Same-Sex Marriage after Windsor. This is a right to remain married when you travel, not a right to get married in Ohio.

That said, there is a footnote toward the end of Judge Black’s decision that makes clear that he would also declare a general right to same-sex marriage in Ohio if he had a chance:

As a final note, although the question of whether Ohio’s refusal to grant same-sex marriages also violates Ohio same-sex couples’ right to due process and equal protection is not before the Court in this case, the logical conclusion to be drawn from the evidence, arguments, and law presented here is that Ohio’s violation of the constitutional rights of its gay citizens extends beyond the bounds of this lawsuit.

But as a technical matter, the judge acknowledges that question was outside of the scope of his decision. Ohio clerks should not start issuing marriage licenses to same-sex couples.

Finally, I want to say that I’ve repeatedly noticed and appreciated the reporting of Chris Geidner in all of these same-sex marriage decisions over the past six months. More [...]

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Same-Sex Marriage (Ex Post) Upheld in Indiana

One interesting issue I encountered in my various research projects on marriage is how transgender individuals interact with the law of same-sex marriage. For example, if a couple is originally married as a man and a woman, and one of the parties later changes their legal sex, does that invalidate the marriage (if the state does not allow same-sex marriage)? I’ve found surprisingly few written appellate decisions on this topic.

Yesterday, the Indiana Court of Appeals concluded that the answer was “no.” If the marriage was valid when the parties entered into it in Indiana, then nothing in Indiana’s anti-same-sex marriage law changes that. The case was litigated by Professor Steve Sanders, at the Indiana University Maurer School of Law. I’ve previously posted about Sanders’s scholarship on the importance of reliance interests in marriage law. [...]

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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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Why the Utah Law Criminalizing Polygamy Is Unconstitutional

I’m no fan of the Utah federal court’s opinion striking down the Utah law criminalizing polygamy. But I do think that the law, at least as currently interpreted by Utah officials, is indeed unconstitutional. Here’s a brief sketch of my thinking.

1. The relevant statute states,

A person is guilty of bigamy when, knowing he has a husband or wife or knowing the other person has a husband or wife, the person purports to marry another person or cohabits with another person.

It isn’t limited to attempts to fraudulently claim a legal status of marriage, whether the claims are made to the government, to one’s supposed spouse, or otherwise. “Cohabits,” in Utah law, means “to live together as husband and wife.” State v. Barlow, 153 P.2d 647 (Utah 1944). Moreover, the prosecutor in this case stated (pp. 59-60) that simply being in a long-term sexual relationship and living together isn’t sufficient. Neither is being in a sexual relationship in which a person who is already married to A says, “I’m committed to this woman [B], I’m going to take care of her for the rest of her life.”

What is necessary, according to the prosecutor, is that “there be a marriage of some sort,” even one that doesn’t purport to be legally valid. According to the prosecutor, “I think it’s the representation that they make to the world as to what is their relationship. If they make it as husband and wife, then that constitutes marriage under the statute.”

2. Utah law, then, isn’t a regulation of sexual conduct (which would raise interesting questions under Lawrence v. Texas). People are free to have sex with lots of other people, and live with all those people. What triggers criminal punishment is saying something to the world — [...]

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Response From Religious-Liberty Scholars Supporting a “Marriage Conscience” Exemption

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. [...]

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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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Missouri Marital Benefits Decision (and the Conceptual Question of Subset/Superset Discrimination)

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 [...]

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Same-sex Marriage in Oklahoma (under Tribal Law)

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.) [...]

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Same-Sex Marriage in New Jersey (For Keeps)

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. [...]

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