In our third symposium of the summer, guest bloggers will examine the future of the Defense of Marriage Act and Proposition 8 at the Court.
Marriage equality state by state
William Eskridge, Professor of Law at Yale, explains why the Court should tread lightly if it considers the merits of a constitutional right to same sex marriage.
William Eskridge is the John A. Garver Professor of Jurisprudence at the Yale Law School. He is the author of The Case for Same-Sex Marriage (1996), and dozens of other books and articles arguing for the civil rights of sexual and gender minorities.
Marriage equality: religious freedom, federalism, and judicial activism
Robert Levy, Chairman of the Cato Institute, refutes thematic objections commonly made against same-sex marriage.
Bob Levy is chairman of the board at the Cato Institute and a board member at the Institute for Justice, Federalist Society, and George Mason law school. Bob received his Ph.D. from American University and JD from George Mason. His latest book is The Dirty Dozen: How 12 Supreme Court Cases Radically Expanded Government and Eroded Freedom.
What’s rational about rational basis review?
Ruthann Robson, Professor of Law at the City University of New York, discusses the legitimate interests at stake in cases involving DOMA or Proposition 8.
Why timing is crucial in the ongoing same-sex marriage cases
Rutgers law professor Carlos Ball argues that it would be better for marriage equality supporters if the Supreme Court hears a DOMA case before it considers Perry v. Schwarzenegger.
The following is an essay for our same-sex marriage symposium by Carlos A. Ball, professor at the Rutgers University School of Law (Newark). Professor Ball is the author of The Right to be Parents: LGBT Families and the Transformation of Parenthood (NYU Press), which will be published early next year. He is also the author of From the Closet to the Courtroom: Five LGBT Lawsuits That Have Changed Our Nation (Beacon).
Same-sex marriage: The tortuous road to the Supreme Court
The Marriage Law Foundation’s William Duncan describes obstacles to U.S. Supreme Court review of the constitutional claim for same-sex marriage and explores the implications of the way these cases seem likely to be presented to the Court.
William Duncan is the director of the Marriage Law Foundation. He has represented amici in Perry v. Schwarzenegger and Commonwealth v. U.S. Department of Health and Human Services, two federal constitutional challenges to laws defining marriage as the union of a husband and wife.
The true marriage divide
Bob Barr, former Congressman and DOMA author argues that individuals should not need the government’s permission to marry.
The following contribution to our same-sex marriage symposium is written by Bob Barr. Bob represented Georgia’s 7th Congressional District in the U.S. House of Representatives from 1993 to 2003. He blogs at The Barr Code.
If you can’t beat ‘em, join ‘em
Brian Raum, Senior Counsel and head of marriage litigation at the Alliance Defense Fund, argues that the litigation strategy of those supporting same-sex marriage should pay heed to the narrow scope of the Court’s decision in Lawrence v. Texas.
Brian W. Raum is senior counsel and head of marriage litigation for the Alliance Defense Fund and is a member of the ProtectMarriage.com legal team defending the California marriage amendment in the federal lawsuit Perry v. Brown.
Perry as Politics
Dale Carpenter, Professor of Law at the University of Minnesota Law School, considers the political costs of litigating same-sex marriage state by state, starting with California’s Proposition 8.
Dale Carpenter teaches constitutional law, the First Amendment, and sexual orientation and the law at the University of Minnesota Law School. He is a contributor to the blog, the Volokh Conspiracy.
Why the Supreme Court will strike down DOMA
Northwestern Law School’s Andrew Koppelman argues that the Supreme Court will probably declare the Defense of Marriage Act unconstitutional.
Andrew Koppelman is John Paul Stevens Professor of Law and Professor of Political Science at Northwestern University. He has written many books and articles, including Same Sex, Different States: When Same-Sex Marriages Cross State Lines (Yale U. Press 2006).
The time for marriage equality has finally arrived
Erwin Chemerinsky, Dean and Professor of Law at University of California, Irvine, predicts a narrow same-sex victory at the Court.
Erwin Chemerinsky is Dean and Distinguished Professor of Law, University of California, Irvine School of Law. Previously, Dean Chemerinsky was a professor at Duke Law School, University of Southern California Law School, and DePaul College of Law. He is the author of seven books and over 100 law review articles. Frequently, Dean Chemerinsky argues appellate cases, including in the United States Supreme Court.
States’ rites? Federalism and marriage litigation
The Supreme Court is a legal institution, and it is generally to state laws that the Court says it looks when it is adjudicating fundamental rights, not to Gallup polls.
David B. Cruz is a Professor of Law at the University of Southern California Gould School of Law. David teaches and writes on constitutional law and sex, gender, and sexual orientation law. He is also a General Counsel for the American Civil Liberties Union and a co-President of the International Lesbian, Gay, Bi, Trans, and Intersex Law Association (ILGLaw), and he blogs at cruzlines.org. The views expressed in this post are solely his.
Balancing marriage equality with other social goods
Robin Wilson, Professor of Law at Washington and Lee, argues that a decision from the Court should take care to accommodate individual states’ legislation.
Robin Fretwell Wilson is the Class of 1958 Law Alumni Professor of Law at Washington and Lee University School of Law and a co-editor of Same-Sex Marriage and Religious Liberty: Emerging Conflicts (Douglas Laycock, Anthony R. Picarello, Jr., & Robin Fretwell Wilson, eds., Rowman & Littlefield Publishers, Inc., 2008)
Why the Court can strike down marriage restrictions under rational-basis review
NYU Law School’s Kenji Yoshino argues that the Court can apply the more stringent form of “rational-basis” review to restrictions on same-sex marriage.
Kenji Yoshino is the Chief Justice Earl Warren Professor of Constitutional Law at NYU School of Law. He has written many books and articles, including Covering: The Hidden Assault on Our Civil Rights (Random House 2006).
The right to marry, and the right to remain married
Steve Sanders, visiting assistant professor at University of Michigan Law School, reminds us that if the Supreme Court agrees to decide the question of same-sex marriage, it will also affect the lives of many couples who are already married.
Steve Sanders teaches Constitutional Litigation, Sexuality and the Law, and Family Law at the University of Michigan Law School. He formerly practiced as a member of the Supreme Court and appellate group at Mayer Brown LLP, and represented twenty-three law and history professors as amici in Varnum v. Brien, which legalized same-sex marriage in Iowa.
The constitutionality of traditional marriage
John Eastman, professor of Law at Chapman University, questions whether the Court should hear a marriage equality case.
John Eastman is the Henry Salvatori Professor of Law & Community Service, and former Dean, at Chapman University School of Law in Orange County, California. He is the founding Director of the Center for Constitutional Jurisprudence, on whose behalf he has participated in the Proposition 8 litigation.
Marriage equality: protect or promote?
Robert Levy, Chairman of the Cato Institute, responds to Brian Raum as part of our same-sex marriage symposium.
Bob Levy is chairman of the board at the Cato Institute and a board member at the Institute for Justice, Federalist Society, and George Mason law school. Bob received his Ph.D. from American University and JD from George Mason. His latest book is The Dirty Dozen: How 12 Supreme Court Cases Radically Expanded Government and Eroded Freedom.
Marriage does not consist of straw men
Brian Raum, head of marriage litigation for the Alliance Defense Fund, replies to Robert Levy as part of our same-sex marriage symposium.
Brian W. Raum is senior counsel and head of marriage litigation for the Alliance Defense Fund (www.telladf.org) and is a member of the ProtectMarriage.com legal team defending the California marriage amendment in the federal lawsuit Perry v. Brown.
The courts, the political process, and DOMA
Harvard law professor and former Solicitor General Charles Fried argues that although a legislative solution would be ideal, a narrow ruling invalidating the Defense of Marriage Act is preferable to a broad ruling in favor of a constitutional right to same-sex marriage.
Educated at Princeton, Oxford and Columbia Law School, Professor Fried is the Beneficial Professor of Law at Harvard Law School, where he has taught since 1961. He was Solicitor General of the United States, 1985-89, and an Associate Justice of the Supreme Judicial Court of Massachusetts, 1995-99. His scholarly and teaching interests have been moved by the connection between normative theory and the concrete institutions of public and private law. As a private lawyer he has argued appeals in many courts, including the Daubert case in the Supreme Court and the case deciding whether the attack on the Twin Towers was one occurrence or two.
Marriage equality: A question of equality rather than liberty
Deborah Hellman, Professor of Law at the University of Maryland and Visiting Professor of Law at the University of Virginia, responds to recent posts in our symposium by both Erwin Chemerinsky and William Eskridge. She argues that the Court should not use the Due Process Clause in ruling on the constitutionality of Proposition 8 but that the Court should instead prefer equal protection analysis for reasons of principle rather than reasons of policy.
Deborah Hellman is Professor of Law, and the Jacob France Research Professor, at the University of Maryland. She is the author of When Is Discrimination Wrong? (Harvard Univ. Press) and several articles on discrimination and equal protection. She is currently a Visiting Professor at the University of Virginia School of Law.
The constitutional inevitability of same-sex marriage
Harvard law professor Laurence Tribe argues that based on precedent, the Court will ultimately have to find a constitutional right to same-sex marriage.
Laurence H. Tribe is the Carl M. Loeb University Professor at Harvard Law School, where he has taught constitutional law since 1968. A widely admired advocate as well as a distinguished academic and the author of 115 books and articles, Tribe has prevailed in most of the many appellate cases he has argued, including 35 in the Supreme Court. His treatise, “American Constitutional Law,” is the standard work on the subject, and Chief Justice Aharon Barak of Israel called his latest book, “The Invisible Constitution,” a “masterpiece.” Recipient of ten honorary degrees, Tribe was recently elected to the American Philosophical Society and served in 2010 as the Obama administration’s first Senior Counselor for Access to Justice
Collusion in the marriage cases?
Northwestern University’s Andrew Koppelman responds to posts from William Duncan and John Eastman for our same-sex marriage symposium.
Andrew Koppelman is the John Paul Stevens Professor of Law and Professor of Political Science at Northwestern University. He has written many books and articles, including Same Sex, Different States: When Same-Sex Marriages Cross State Lines (Yale U. Press 2006).
Balancing away marriage equality
University of Maryland School of Law professor Jana Singer responds to Robin Wilson as part of our same-sex marriage symposium.
Jana Singer is a Professor of Law at the University of Maryland School of Law. Professor Singer teaches Family Law, Constitutional Law and Contracts. She has written widely on family and children’s issues and is the co-editor of Resolving Family Conflicts (Ashgate, 2008).
A winner-takes-all approach to state same-sex marriage laws is self-defeating
Washington and Lee University School of Law’s Robin Fretwell Wilson responds to Jana Singer for our same-sex marriage symposium.
Robin Fretwell Wilson is the Class of 1958 Law Alumni Professor of Law at Washington and Lee University School of Law and a co-editor of Same-Sex Marriage and Religious Liberty: Emerging Conflicts (Douglas Laycock, Anthony R. Picarello, Jr., & Robin Fretwell Wilson, eds., Rowman & Littlefield Publishers, Inc., 2008)
Reflections on a dialogue: Getting to marriage equality
Written by the University of California, Irvine’s Dean Erwin Chemerinsky, this is the final post in our online symposium on same-sex marriage. The whole symposium is available here.
Erwin Chemerinsky is Dean and Distinguished Professor of Law, University of California, Irvine School of Law. Previously, Dean Chemerinsky was a professor at Duke Law School, University of Southern California Law School, and DePaul College of Law. He is the author of seven books and over 100 law review articles. Frequently, Dean Chemerinsky argues appellate cases, including in the United States Supreme Court.
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