Gill v. OPM

  • May 18, 2009
    Guest Post

    By Chris Geidner, who is on the Executive Board of the Columbus Lawyer Chapter of ACS and blogs at Law Dork, 2.0. You also can follow him at chrisgeidner on Twitter.

    As the White House gears up for the confirmation hearings for President Obama's first Supreme Court nominee, it has become clear that the topic of marriage equality (a.k.a., same-sex marriage) will be front and center. Cornell Law professor William Jacobson even suggested in a lengthy article in Sunday's edition of The Washington Post that same-sex marriage could outperform abortion as the "flash point" of this summer's main event.

    In light of the weekly and even daily developments across the country on marriage equality in the few short months since the President took office, it's easy to see how such a topic could dominate discussion. It's not the past developments, though, that are prompting the focus.

    Most recent developments, in fact, appear to defuse conservatives' cries about "activist courts." Save for the Iowa Supreme Court's decision in April, in which the court vigorously defended against claims of judicial activism, most of the current state court battles -- from California to Wisconsin -- are procedural challenges -- not broad, equal protection or due process challenges. What’s more, most of the marriage developments -- from Vermont to Maine to D.C. to New Hampshire -- have come from lawmakers -- not courts. Further still, there has been a concerted effort and great success at chipping away at religious objections by recognizing broad religious exemptions in civil marriage laws in Connecticut and Maine and -- soon -- New Hampshire.

    So, with all of that, why is there such a focus on the thoughts of one potential U.S. Supreme Court justice on marriage equality?