Same-sex marriage

by Erin Ryan, Associate Professor of Law, Northwestern School of Law, Lewis & Clark College. Professor Ryan is the author of Federalism and the Tug of War Within. For more on the cases raising marriage equality concerns see the ACSblog symposium on Hollingsworth v. Perry and U.S. v. Windsor.

A federalism scholar explains why federalism isn't the issue in Hollingsworth and Windsor.

Federalism is once again at the forefront of the Supreme Court’s most contentious cases this Term. The cases attracting most attention are the two same-sex marriage cases that were argued this week. Facing intense public sentiment on both sides of the issue and the difficult questions they raise about the boundary between state and federal authority, some justices openly questioned whether they should just defer to the political process. And while this is often a wise prudential approach in review of contested federalism-sensitive policymaking, it’s exactly the wrong course of action when the matter at hand is an individual right.

While both cases raise curious issues of standing, the substantive issue at the heart of each case is whether same-sex couples should be able to marry. Hollingsworth v. Perry asks the Court to review the constitutionality of a California’s “Prop 8,” a ballot initiative banning same-sex marriages within the state. United States v. Windsor tests the constitutionality of the Defense of Marriage Act (DOMA), a federal law that prevents the U.S. government from recognizing same-sex marriages performed in states that allow it (and affecting the administration of some 1,100 federal benefits connected with marriage). 

Yet the looming question for the Supreme Court is not just whether gays and lesbians have the right to marry -- the justices must also confront the question of who should decide whether same-sex couples can marry. Is this something that states should be able to decide for themselves, by making and interpreting state law? (After all, matters of family law have traditionally been left to state regulation.) Or, is the decision to marry so fundamentally important that it triggers the federal Constitution’s promise that all citizens will be treated equally under the law? (After all, even though family law is traditionally left to the states, the Constitution won’t allow them to deny interracial marriages.)

by Jeremy Leaming

Quickly after President Obama announced his support of marriage equality, the president’s knee-jerk detractors doused the moment with cynicism. The president, they said backed into the announcement or they snidely asked what’s the difference between a flip-flop and evolving.

The response from the far right – Obama is a scourge, a menace to society, God is surely irked now – was overwrought and hardly surprising. The cynicism, however, was offensive for its insensitivity and cluelessness. Did the dunderhead crowd listen to the president’s comments or was it expressing a latent distaste for gay Americans or ignorance of the challenges lesbians, gay men, bisexuals and transgender Americans face in a society where many are still bent on oppressing and marginalizing them.

Slate’s Dahlia Lithwick, argues that listening to Obama’s comments is, surprising as it may seem, helpful, writing, “Whatever your view of President Obama’s motives, or the legal consequences of his statement …, it is not in dispute that the words he spoke gave many Americans – including gay children and teenagers – the message that he had heard them, and that their experiences mattered so much that he’d changed his views – personal, political and legal.”

Or as James Fallows, the longtime correspondent for the Atlantic, said:  

I am aware that there are various slice-and-dice cynical assessments one could make of the president’s comments today. (Why did he take so long? Why did he back off the support he’d expressed in the 1990s? Might this be useful as a wedge issue in the election? It doesn’t have any immediate since it’s still up to the states. And so on.) But the fact remains that five minutes before his announcement, no one could be sure that he would take the step of staying that his personal views had changed. He did – and it was important, brave, potentially risky, and right. That should be noted It’s a significant day.