I’m set to be a commentator this afternoon on the Fox radio network, discussing the Supreme Court’s marriage cases. Speaking of which, I’ve got a new roundup at Cato at Liberty summarizing recent writings on Perry and Windsor by Cato stars including Roger Pilon, Ilya Shapiro, and Richard Epstein.
On Tuesday and Wednesday the Supreme Court will hear oral argument on Hollingsworth v. Perry, the challenge to California’s Proposition 8, and U.S. v. Windsor, the challenge to Section 3 (federal definition of marriage) of the Defense of Marriage Act. A Ninth Circuit panel, with liberal Judge Stephen Reinhardt writing, had invalidated Prop 8 on relatively narrow grounds; a Second Circuit panel, with conservative Chief Judge Dennis Jacobs writing, had invalidated Section 3 of DOMA on Equal Protection grounds.
The range of possible outcomes for the two cases is quite wide. At one end, the Court could reverse both appellate decisions, restoring the California ban on gay marriage and confirming the legal definition of marriage as opposite-sex-only for purposes of federal programs such as taxation (at issue in Windsor) and federal employee pensions. At the other end, the Court could apply Equal Protection Clause principles to declare that marriage licenses must be available in all states to all otherwise qualified couples regardless of sex. In between are many intermediate outcomes. Both cases, especially Perry, raise issues of litigant standing that might enable or require the Court to set aside the ultimate merits and render a decision with little or no precedential impact on future cases.
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My new article at The Blaze, based (among other things) on a precinct analysis of the election results last month in Prince George’s County, Maryland: “the black precincts in P.G. with the strongest inclination toward social conservatism… gave Republican candidates a vote percentage more often associated with Libertarian candidates and rounding errors.” Although some Republicans have been keeping the runways clear and waving at every dot on the horizon for 20 years or more, the planes still aren’t landing (& welcome David Frum/Daily Beast readers).
But don’t be surprised if the Court decides to punt one or both cases, I conclude in a new online opinion piece at USA Today. P.S. Other commentators independently thinking along somewhat similar lines: Adam Serwer/Mother Jones, Daniel Fisher/Forbes. Note also that I should have described the problem for Edith Windsor as being denial of the spousal inheritance exemption, rather than estate tax.
I joined “Talk of the Nation” host Neil Conan and “political junkie” Ken Rudin today live in NPR’s Washington studio to discuss my findings on the large number of suburban Romney voters who voted in favor of ballot measures to recognize same-sex marriage (in Maryland and Maine) or opposed a measure to ban it (in Minnesota). Update: now that NPR has posted the show online, you can listen or read a transcript here (earlier)
One important reason same-sex marriage won on three state ballots last month is that many Republican voters, especially in affluent suburbs, crossed over to vote in favor of it. I’ve continued to document this phenomenon in a piece in this weekend’s Washington Post “Outlook” section (incorporating precinct-level detail on Minnesota and Maine) as well as in a second Huffington Post piece (with precinct-level detail on Maryland; my earlier HuffPo piece is linked here). Also, this Cato podcast:
One correction on the podcast: I mistakenly said Question 6 carried the two biggest Romney counties in Maryland, but I should have said two of the biggest three.
P.S. Mine was the second-most-popular article on WashingtonPost.com as of early morning Dec. 2.
I’m pleased to report that I filed a friend-of-the-court brief, on behalf of the Cato Institute, Dale Carpenter, and myself, arguing that wedding photographers (and other speakers) have a First Amendment right to choose what expression they create, including by choosing not to photograph same-sex commitment ceremonies. All the signers of the brief support same-sex marriage rights; our objection is not to same-sex marriages, but to compelling photographers and other speakers [to create] works that they don’t want to create.
As Ilya Shapiro explains further at Cato, the litigation before the New Mexico Supreme Court hinges in substantial part on whether the photographers are entitled to claim religious-liberty protection against the discrimination claim, but the Cato amicus brief advances a distinct alternative theory under which they deserve to prevail:
Our brief explains that photography is an art form protected by the First Amendment because clients seek out the photographer’s method of staging, posing, lighting, and editing. Photography is thus a form of expression subject to the First Amendment’s protection, unlike many other wedding-related businesses (e.g., caterers, hotels, limousine drivers).
The amicus brief in Elane Photography v. Willock is here; I’m happy to say I played a bit part in helping to advance it. Earlier on the case here, here, and here; and more from George Will.
Romney voters swung in large numbers to provide the decisive margin for Maryland’s approval of same-sex marriage, according to county-level data I analyze in this new Huffington Post piece. In my own precinct Question 6 ran 14 points ahead of the vote for President Obama, a margin not uncommon in other parts of the state that could be described as economically conservative and socially moderate.
Voters in four states will decide same-sex marriage ballot questions on Nov. 6. As many readers know, I’ve been writing actively on the Maryland question, and those interested in catching up on that can follow the links here to find, among other things, my recent interview on the subject with the Arab news service Al-Jazeera, my thoughts on Judge Dennis Jacobs’s decision striking down Section 3 of DOMA (the federal Defense of Marriage Act), and my reaction to the other side’s “bad for children” contentions.
The Cato Institute has been doing cutting-edge work on the topic for years from a libertarian perspective; some highlights here.
Yet more: Hans Bader on religious liberty and anti-discrimination law [Examiner, CEI] And my letter to the editor in the suburban Maryland Gazette: “Civil society long ago decoupled marriage law from church doctrines.”
Get ready for the cognitive dissonance among many on both left and right: Second Circuit chief judge Dennis Jacobs, long a favorite of the Federalist Society (and of mine), has written the opinion striking down section 3 of the Defense of Marriage Act (DOMA) in Windsor v. U.S. I have more at my Maryland for All Families blog.
Get ready for the next round in the who’s-persecuting-whom culture wars, following Chick-Fil-A and Burns-vs.-Ayanbadejo. I’ve got a write-up at Maryland for All Families reacting to initial reports by Chris Geidner at BuzzFeed and Annie Linskey at the Baltimore Sun; David Bernstein also comments. Regarding the unique status of Gallaudet, the national university for the deaf, a commenter at NRO offers the following:
Gallaudet cannot sell or transfer any of its real property without Congressional approval.
All Gallaudet diplomas are signed by the President of the United States.
Three members of Congress are statutorily required to sit on the school’s Board of Trustees.
Gallaudet is required to submit an annual report on its operations to the Department of Education and has purchasing authority through the General Services Administration.
Gallaudet receives a direct, annual Congressional appropriation, rather than mere federal student loan funds, and that direct appropriation accounts for the overwhelming majority of the school’s income.
More: Ken at Popehat; Huffington Post D.C.
Following numerous lower court decisions striking down the federal marriage definition provisions of the 1996 Defense of Marriage Act, the U.S. Supreme Court is very likely to take up the question this year. In Monday’s Cato podcast, I discuss the long road that brought DOMA to the Court and explain a few of the complications, including a potential second case arising from the Ninth Circuit’s invalidation of California’s Proposition 8. The separate DOMA provision establishing that states aren’t obliged to recognize same-sex marriages from other states isn’t under challenge.
I’ve got a post at Maryland for All Families following up on the free-speech controversy that flared up when Del. Emmett Burns, a Democratic lawmaker in Annapolis, wrote to the owner of the Baltimore Ravens demanding he silence linebacker Brendon Ayanbadejo, a vocal advocate of same-sex marriage (earlier). Discussion elsewhere: Rob Tisinai/Box Turtle Bulletin, Amy Alkon, Howard Wasserman/Prawfs, BaltimoreRavens.com (team’s front office supports Ayanbadejo), David Frum, and a First Amendment analysis from Hans Bader.
Update: Amid widespread public support for Ayanbadejo, Del. Burns has now backed off his attempt to muzzle the linebacker [Baltimore Sun] Did any prominent critics of same-sex marriage speak up in favor of the Ravens linebacker’s free speech? If not, they missed an opportunity to underline the principled nature of their oft-voiced concern that those on the “wrong” side of the marriage issue will face official retaliation.
Wow. Del. Emmett Burns (D-Baltimore County), an opponent of same-sex marriage, fired off a letter to the owner [PDF] of the Baltimore Ravens on legislative stationery demanding that he silence Brendon Ayanbadejo, an outspoken marriage advocate. Pretty much every conservative commentator in America (properly) denounced the Boston mayor and Chicago alderman for menacing Chick-Fil-A. I hope some of them will speak up against this abuse of government office as well. [NBC Sports Pro Football Talk]
More, Eugene Volokh finds it “a pretty inappropriate thing for a legislator, speaking in a way that stresses his role as legislator, to say to a private employer. There is no express threat of retaliation here, but such letters to private businesspeople — who often have to deal with legislature on various regulatory issues — tend to carry something of an implied threat, especially when they stress the author’s legislative position.” Note also that what Burns is “requesting” in his letter is accompanied by a peremptory demand for an “immediate response.” And update: following an outcry in which the public overwhelmingly took the player’s side, Del. Burns has backed down.