Steve Sanders

  • September 18, 2015
    Guest Post

    by Steve Sanders, who teaches and writes about constitutional law, constitutional litigation, and family law at the Indiana University Maurer School of Law, Bloomington.

    *This post is part of ACSblog’s 2015 Constitution Day Symposium.

    Advocates for civil rights and civil liberties often look to our Constitution in their quest for legal and social change.  But the processes of legal and social change also shape the contours, sometimes the very meaning, of constitutional guarantees.  Last summer in Obergefell v. Hodges, the Supreme Court applied the Fourteenth Amendment to transform the nationwide legal status of same-sex marriage.  But it is important to appreciate how same-sex marriage had already changed the Constitution.  

    On matters of individual liberty and equality, the Constitution is not a catalog of enumerated, narrow, and static rights, though most legal conservatives insist that we treat it that way.  Rather, it provides a set of bedrock values, values whose meanings grow and adapt alongside the growth of knowledge and human understanding. 

    As Chief Justice John Marshall wrote in McCulloch v. Maryland, a constitution is “intended to endure for ages to come, and consequently to be adapted to the various crises of human affairs.”  Justice William Brennan, one of the greatest champions of a progressive Constitution, observed,  “Our amended Constitution is the lodestar for our aspirations.  Like every text worth reading, it is not crystalline. The phrasing is broad and the limitations of its provisions are not clearly marked.  Its majestic generalities and ennobling pronouncements are both luminous and obscure.”

    And as Justice Anthony Kennedy wrote in a decision invalidating laws that criminalized same-sex sex acts, “Had those who drew and ratified the [Constitution] known the components of liberty in its manifold possibilities, they might have been more specific.  They did not presume to have this insight….  As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.”

    In that 2003 decision, Lawrence v. Texas, the Court considered the last half-century of legal and social change, both in the United States and in other democracies, and found an “emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex.”

  • January 8, 2015
    Guest Post

    by Steve Sanders, Associate Professor of Law, Maurer School of Law, Indiana University Bloomington.

    * This piece originally appeared on The Huffington Post.

    The Supreme Court has been reluctant to jump into the question of same-sex marriage, preferring to let the issue percolate through state-by-state litigation in the lower federal courts.  But the time has come for the justices to come out of hiding.  The denial of marriage equality is a national problem, not a state-level problem, and it requires a national resolution that only our nation’s constitutional court can provide.

    At the moment, 35 states allow marriage equality, while 15 forbid it.  The anti-equality states not only refuse to allow same-sex marriages to be licensed and celebrated; 14 of them also refuse to recognize marriages from sister states where such unions are perfectly legal.  Petitions from cases in four of those states – Kentucky, Michigan, Ohio, and Tennessee – will be considered by the justices at their next private conference this coming Friday.

    One reason marriage equality is a national issue is that our current patchwork of marriage laws imposes unreasonable, indeed absurd, burdens on same-sex couples’ security in their marriages and their freedom to move from state to state.  A married gay couple from a pro-equality state can relocate for job, education or family reasons to an anti-equality state – as long as they’re willing to give up their marriage, and perhaps even their property and parental rights.  A rational legal regime cannot tolerate this state of affairs.

    In a 2012 article in the Michigan Law Review, I first proposed that the Constitution provides not only a right to get married, but a right to remain married.  Multiple federal court decisionsincluding one from the 10th Circuit U.S. Court of Appealsinvolving Utah’s marriage laws, have since endorsed this principle.  There is also an argument to be made that denial of interstate marriage recognition offends the Constitution's Full Faith and Credit Clause.

  • August 5, 2011
    Guest Post

    By Steve Sanders, visiting assistant professor, University of Michigan Law School


    The political media are about to begin obsessing over the Iowa Republican straw poll, scheduled for Saturday, August 13.  Recent commentary has focused on how religious conservatives have gained a chokehold on Iowa GOP politics.  Evangelical Christian activists remain outraged at the 2009 decision of the Iowa Supreme Court to legalize same-sex marriage.  Last fall, they mounted a well-funded campaign to oust three of the justices who signed that ruling.  Their TV ads  – juxtaposing footage of villainish-looking "liberal, out of control judges" against images of hunters in camouflage and a chubby kid saluting the flag – accused the justices of "ignoring our traditional values" and "imposing their own values."

    Now, activist Bob Vander Plaats, who led the anti-court jihad, is pressuring presidential candidates to sign something called "The Marriage Vow," which includes a pledge of "[v]igorous opposition to any redefinition of the Institution of Marriage – faithful monogamy between one man and one woman – through statutory-, bureaucratic-, or court-imposed recognition of intimate unions which are bigamous, polygamous, polyandrous, same-sex, etc."  Religious-right darlings Michele Bachmann and Rick Santorum were the first candidates to enthusiastically sign up.

    The picture of Iowa we get from the mainstream media through next year's caucuses is likely to be of a state in the grip of militant Tea Partiers and theocrats.  That would be a shame, because the agenda of these particular activists – with their narrow view of social equality and hostility toward an independent judiciary – is unfaithful to the state's social and legal heritage.

  • October 29, 2010
    Guest Post

    By Steve Sanders, an appellate lawyer and adjunct faculty member at the University of Michigan Law School
    Thirteen states have filed an amicus brief in Perry v. Schwarzenegger, the case in which the U.S. Court of Appeals for the Ninth Circuit will review a district court decision that struck down California's same-sex marriage ban. The brief-submitted by the attorneys general of Alabama, Alaska, Florida, Idaho, Indiana, Louisiana, Michigan, Nebraska, Pennsylvania, South Carolina, Utah, Virginia, and Wyoming-argues that it is gravely important that states be allowed to continue privileging "traditional" marriage and denying equality to same-sex couples. One of the brief's lead counsel is Virginia attorney general Ken Cuccinelli (pictured), a darling of social conservatives and the Tea Party movement.

    The brief purports to offer an argument about marriage federalism-that every state should be able to carry out its own ideas without interference either from Washington or pesky federal judges. But as I'll explain, these attorneys general -- call them the Cuccinelli 13 -- don't really believe their own argument. They just want their states to be able to keep discriminating against gays and lesbians.

    As you might expect from a group of mostly red states (11 of the 13 AGs are Republicans), the brief rehashes familiar social-conservative themes: marriage is about procreation; children are better off in heterosexual homes; it's a slippery slope from gay marriage to legalized polygamy and incest; the "traditional" understanding of marriage should be constitutionally dispositive.

    What's interesting, though, is that the brief frames these arguments within a sweeping claim that states have "sovereign primacy over marriage." "Primary state authority over family law," they write, "is confirmed by definite limitations on federal power" and is a "bedrock principle of federalism."

    Taking aim at the judge who invalidated California's Proposition 8, the Cuccinelli 13 insist that "federal judicial power threatens to undermine state determinations of marital or parental status," and that the district court's "fiat" (a silly characterization of a closely reasoned 136-page opinion) "exceeded its judicial authority." But this is an obtuse argument. The brief attempts to conflate the "domestic relations exception"-a judge-made abstention doctrine that deprives federal courts of jurisdiction over intrafamily disputes like divorce or child custody-with the power of federal courts to review the constitutionality of state laws. Faulty arguments aside, the Cuccinelli 13's real point is that if states want to keep discriminating against same-sex couples, federal courts just need to butt out; they have no right to question majoritarian ideas - what the AGs call "the acquired cultural wisdom of citizens" - about marriage.