Posts tagged as:

same-sex marriage

The University of Minnesota law professor and Volokh Conspiracy contributor sorts out claims that the pending bill in his state threatens religious liberty. [St. Paul Pioneer Press]

Okay, “get the government out of marriage” makes a nice slogan, with a libertarian-sounding ring to it. But what happens on contact with legal reality, where countless existing legal relations are predicated on marriage’s functional role as an on/off switch as opposed to a sliding continuum of statuses customized by private contract? [Scott Shackford, Reason]

Also on the marriage question, I have a new blog post at Cato recapitulating why social conservatives are deluding themselves if they imagine the GOP can use the issue to harvest many new black votes.

Yet more: video of a Friday Cato panel in which I join Mary Bonauto of GLAD, Ilya Shapiro of the Cato Institute, and Kathryn Lehman of Holland & Knight; I talk about how public opinion on same-sex marriage is increasingly boxing in the national Republican Party, and how it might bid to get out of the box.

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April 11 roundup

by Walter Olson on April 11, 2013

  • More on Maryland cyber-bullying law vs. First Amendment [Mike Masnick/TechDirt, and thanks for quote; earlier here, here]
  • Family of Trayvon Martin settles with homeowners’ association for an amount believed north of $1 million [Orlando Sentinel, earlier]
  • Best of the recent crop of commentaries on violent political terrorists of 1960s landing plum academic gigs [Michael Moynihan, Daily Beast, earlier]
  • First the New Mexico photographer case, now attorney general of Washington sues florist for not serving gay wedding [Seattle Times; earlier on Elane Photography v. Willock]
  • “‘Vexatious litigator’ is suspect in courthouse bomb threats in five states” [ABA Journal]
  • Cannon, meet moth: Ken instructs a guy at WorldNetDaily why hurt feelings don’t equal fascism [Popehat] “The Trick In Dealing With Government: Find The Grown-Up In The Room” [same]
  • A true gentleman and friend: R.I.P. veteran New York editor and publisher Truman Talley, “Mac,” who published many a standard author from Ian Fleming to Jack Kerouac to Rachel Carson to Isaac Asimov and late in his illustrious career took a flyer on a complete novice in the books that became The Litigation Explosion and The Rule of Lawyers [NYT/Legacy]

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  • The 173rd, maybe? “This is not the first time [Linda] Greenhouse has misrepresented the views of her opponents” [Ilya Somin; more from ABA Journal on federalism argument against DOMA as supposed anti-federal-power "Trojan horse"] Was it improper for trial judge Vaughn Walker and appeals judge Stephen Reinhardt not to have recused themselves from Prop 8 case? Legal Ethics Forum bloggers weigh in [John Steele, Richard Painter, etc.] Funny graphic by Cato social media team about Cato’s “odd couple” joint brief with Constitutional Accountability Center [CAC] “Right and Left Continue to Change Where they Stand on Standing” [Ilya Somin] And if you’re going to be on Capitol Hill this Friday and are interested in the DOMA and Prop 8 cases, be sure to attend the panel discussion at which I’ll be joined by Ilya Shapiro and Mary Bonauto;
  • On courts’ role in advancing liberty [Roger Pilon exchange with Ramesh Ponnuru] Incidentally, Cato’s “Mr. U.S. Constitution” is now on Twitter at @Roger_Pilon; and he discusses Cato’s high-profile SCOTUS amicus program [here]
  • Cook County official has creative theories about federal supremacy [Illinois Watchdog]
  • Amicus brief: Congress can’t assert perpetual jurisdiction over anyone and everyone, and that goes for ex-sex offenders too [Trevor Burrus]
  • “What are the Weirdest Constitutional Arguments Ever Asserted in Court?” [Orin Kerr and Volokh readers]
  • As Court considers voting act in Shelby County case, Chief Justice Roberts sees problem with pretending it’s still 1965 [Ilya Shapiro; more on VRA, 2010 Abigail Thernstrom backgrounder, National Affairs]

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It’s not embeddable, but here’s a link to a video (may not work in all browsers) of today’s panel on the Marriage Cases at Cato, with Evan Wolfson of Freedom to Marry, former Republican National Committee chair Ken Mehlman, and Cato’s Ilya Shapiro, with me as moderator.

P.S. Okay, now we’ve got a proper video up:

Alternative video at Cato site (parts one, two). Coverage: Luca Gattoni-Celli, American Spectator; Lou Chibbaro Jr., Washington Blade; Kevin Glass, TownHall.com; Adam Polaski, Freedom to Marry.

I’ve got a flash reaction op-ed up at the New York Daily News site.

P.S. @gideonstrumpet: “I was indeed joking.

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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.

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  • If you didn’t see my Saturday post previewing the DOMA and Prop 8 cases that reach the Supreme Court this week, I’ve now got a virtually identical version up at the Cato blog.
  • On Wednesday, immediately after the Court’s oral argument in Windsor, I’ll be moderating a panel at Cato with former Republican National Committee head Ken Mehlman (NPR profile), Freedom to Marry founder Evan Wolfson (BuzzFeed profile), and Cato’s Ilya Shapiro (AFF profile). Details and RSVP here. If you’re in DC, don’t miss it! If not, watch live online at www.cato.org/live and comment via #CatoEvents.
  • A collection of links on the cases is currently headlining the Cato website.
  • I’ll be speaking Wednesday evening about the cases before the Washington, D.C. chapter of Log Cabin Republicans. I also expect to be doing some national broadcast commentary — details to follow.
  • Last week I spoke at a panel in Cato’s social media series with Jimmy LaSalvia (GOProud) and Trevor Burrus (Cato) on conservatives and same-sex marriage, on topics that included the changing poll numbers and demographics. Aside from going through my analysis of November’s election results, I commented on various aspects of the debate such as the difference between civil and religious marriage (“the same as that between a birth certificate and a christening,” I like to say), the non-connectedness of the gay marriage and abortion issues (on which many others seem to agree with me), and the issue of religious exemptions (“As libertarians, we’re ahead of the curve in considering how anti-discrimination law can trample freedom of conscience.”) No video at the moment.
  • By coincidence, that panel happened to be scheduled against a crosstown event making the opposite case at the Heritage Foundation, which suffice it to say is at a very different place from Cato on this topic. On the question of using 11-year-olds to try to tear down other people’s families, by the way, Rob Tisinai at Box Turtle Bulletin has a nice pre-rejoinder to Heritage: “But Gracie, no one is trying to take one of *your* parents away.”
  • I couldn’t help noticing the following from a March 22 Clarus survey of U.S. voters:

    “Do you think each individual state should be allowed to decide whether same-sex couples can legally marry, or not?”

    Should 53%
    Should not 45%

    “Do you think same-sex couples have a constitutional right to marry, or not?”

    Do 53%
    Do not 43%

    If these figures are to be credited, at least 6% of the voting public (and possibly much more) overlappingly believes both that same-sex couples have a constitutional right to marry, and that “each individual state should be allowed to decide” on that same question. I think it may be time for a refresher course in constitutional law.

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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.
[click to continue…]

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February 7 roundup

by Walter Olson on February 7, 2013

  • You mean Philadelphia traffic court wasn’t on the up-and-up? [ABA Journal] DUI prosecution in Lafayette Parish, La. had become quite the tidy business [Scott Greenfield]
  • Match.com sued after date assault [FindLaw]
  • Sweden is at cutting edge of free-market policy innovation [Adrian Wooldridge, The Economist]
  • Big victory for Institute for Justice as federal court strikes down new IRS tax preparer rules [Katherine Mangu-Ward] 97% of Chicago tax preparers out of compliance with local licensing regs? [TaxProf]
  • A sentiment open to doubt: Heritage claims “there is no ban on same-sex marriage” in any state [Ryan Anderson] Support from PM Cameron, other senior Conservatives instrumental in British passage of same-sex marriage [Peter Jukes, Daily Beast] New beyond-the-culture-wars initiative on marriage from David Blankenhorn and colleagues at Institute for American Values [Mark Oppenheimer, NYT]
  • “Why not a waiting period for laws?” [Glenn Reynolds, NY Post]
  • As he steps aside, recalling some of the accomplishments of longtime Cato Institute chairman Ed Crane [Cato Policy Report, PDF]
  • R.I.P. Maureen Martin, legal affairs fellow at Heartland Institute whose work touched many [Jim Lakely]

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Discrimination law roundup

by Walter Olson on January 24, 2013

  • After being slapped down by courts, EEOC concentrates on filing fewer but bigger cases [Sue Reisinger, Corporate Counsel] EEOC scores in Cintas, UPS cases [Legal Times]
  • SCOTUS grants certiorari in retaliation mixed motives case [University of Texas Southwestern Medical Center v. Nassar, SCOTUSBlog via Marcia McCormick, Workplace Prof]
  • False Claims Act could be potent weapon for discrimination plaintiffs [Texas Law Review student note by Ralph Mayrell, PDF via Bagenstos]
  • Religious liberty compatible with gay rights so long as ambitions of anti-discrimination law aren’t allowed to run wild [Eugene Volokh as part of UCLA conference on Roe's 40th and Lawrence's 10th anniversary] Case of Ocean Grove, N.J. pavilion is still regularly cited as infringement on church autonomy, but it’s not that simple, since it hinges on untypical “public use” covenant of property in question [Box Turtle Bulletin]
  • For a more genuine menace to religious liberty, however, watch out for the notion of taking the Bob Jones University precedent — in which courts upheld the stripping of an educational institution’s tax exemption due to its backward racial views — and extending it into a weapon for denying tax exemption to the much broader class of institutions said to contravene “fundamental public policy” [Caroline Maia Corbin, Concurring Opinions]
  • More on the deaf lifeguard case [Jon Hyman, earlier]
  • New York Gov. Cuomo seeks one-way fee awards in state bias cases [Reuters]

Supreme Court roundup

by Walter Olson on January 15, 2013

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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.

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Eugene Volokh:

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.

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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.

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