Category Archives: Law: Con Law: Marriage

Balkin Predicts DOMA Survives Tauro

Prof. Jack Balkin of Yale thinks Judge Truro's opinion's striking down DOMA will not survive appeal:

Judge Tauro is way ahead of the national consensus on the the equal protection issue. Perhaps more importantly, his Tenth Amendment arguments prove entirely too much. As much as liberals might applaud the result, they should be aware that the logic of his arguments, taken seriously, would undermine the constitutionality of wide swaths of federal regulatory programs and seriously constrict federal regulatory power.

There is much to admire in Judge Touro's bravery in writing these opinions, and in his forthright declaration that the federal government's policy is unjust and unreasonable. His two opinions are wild, audacious, and fearless in their logic. But for the same reason, they will and should be quickly overturned. I believe that the civil rights of gays and lesbians will someday be vindicated by legislatures and courts. But not in this way.

Jack is not a natural pessimist, so I'm inclined to take his views on this very seriously.

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DOMA Section 3 Held Unconstitutional

Major pair of decisions in Massachusetts by Judge Joseph L. Tauro (appointed by Nixon, no less): Section 3 of the Defense of Marriage Act is unconstitutional because it denies gay couples equal protection of the laws without a rational basis.

Full text of the decisions: Gill, Commonwealth.

See Adam B's post at Daily Kos for the cliff notes.

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The Hate that Dare Not Speak By Name

I have nothing original or interesting to say about today's Supreme Court decision blocking televised transmission of the Proposition 8 bench trial. (This is the case in which a left-right coalition of trial lawyers is challenging the legality of the anti-same-sex-marriage state constitutional law provision narrowly adopted by referendum in California.)

Well, nothing except maybe this:

Isn't it amazing and in some way wonderful that where on the one hand it used to be the love that dare not speak its name, now it is the opponents of same-sex marriage who argue that they should not be forced to state their views in too public a manner because it might lead them to be shunned and ridiculed.

Of course, it stands to reason that anyone arguing that their marriage could by harmed by the existence of someone else's might have reason to fear some embarrassment or ridicule.

Irrelevant but somehow fitting fact: Divorce Rates Higher in States with Gay Marriage Bans.

Update: YouTube substitute for Prop 8 hearing: Gil Scott Heron, The Revolution Will Not Be Televised. (Alternate version with better sound, worse graphics.)

Posted in Law: Con Law: Marriage | 5 Comments

A Problem for ‘Plain-Meaning’ Advocates

Advocates of a 'plain meaning' approach to constitutional interpretation may have to conclude that Texas accidentally banned all marriage, as described in this McClatchy report, Texas' gay marriage ban may have banned all marriages

Barbara Ann Radnofsky, a Houston lawyer and Democratic candidate for attorney general, says that a 22-word clause in a 2005 constitutional amendment designed to ban gay marriages erroneously endangers the legal status of all marriages in the state.

The amendment, approved by the Legislature and overwhelmingly ratified by voters, declares that “marriage in this state shall consist only of the union of one man and one woman.” But the troublemaking phrase, as Radnofsky sees it, is Subsection B, which declares:

“This state or a political subdivision of this state may not create or recognize any legal status identical or similar to marriage.”

Architects of the amendment included the clause to ban same-sex civil unions and domestic partnerships. But Radnofsky, who was a member of the powerhouse Vinson & Elkins law firm in Houston for 27 years until retiring in 2006, says the wording of Subsection B effectively “eliminates marriage in Texas,” including common-law marriages.

She calls it a “massive mistake” and blames the current attorney general, Republican Greg Abbott, for allowing the language to become part of the Texas Constitution. Radnofsky called on Abbott to acknowledge the wording as an error and consider an apology. She also said that another constitutional amendment may be necessary to reverse the problem.

“You do not have to have a fancy law degree to read this and understand what it plainly says,” said Radnofsky, who will be at Texas Christian University today as part of a five-city tour to kick off her campaign.

Being given to a more of a purpositive approach, I'd be willing to invoke the infamous Holy Trinity decision, and say this clause meant what the voters obviously thought it meant. But would someone who believed in a pure 'plain meaning' approach — like Justices Thomas and Scalia claim to — be able to reach that conclusion?

Posted in Law: Con Law: Marriage | 6 Comments

Textbook Buying as a Political Act

Law students thinking of buying their textbooks online might want to consider this way of doing a bit of social activism at the same time:

California College Democrats launched Textbooks for Change, an innovative program that leverages the Amazon Associates Program, and thousands of student textbook purchases, into cash for California's Courage Campaign and their ongoing efforts to repeal Prop 8.  By simply using the link on Textbooks for Change as the portal to Amazon and buying textbooks through the online merchant, approximately 7% of the purchase price goes to support ongoing efforts for marriage equality in California.

Of course, this only works if you support marriage equality….

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It’s “Freedom to Marry Week”

I've just learned that someone has proclaimed this Freedom to Marry Week:


Our kids will look back on this the way we look at the First Civil Rights Movement.

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It’s Long (Awaited), But Will It Be Long-Lasting?

Text of California Supreme Court's lengthy 4-3 decision stating that same-sex couples have a state right to marry.

I think there's a very real likelihood this could get overturned at the polls in the next election. Even so, I would imagine — but haven't researched the question — that marriages entered into before that happens would remain valid.

Expect the price of flowers to be high in June.

Posted in Law: Con Law: Marriage | 7 Comments