Making sense of the marriage debate

Texas Law Review

Volumn 91, Issue 5, 2013, Pages 1185-1202

  Schacter, Jane S ^a  

^a STANFORD LAW SCHOOL   (United States)

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[No Author keywords available]

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EID: 84876274515     PISSN: 00404411     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (94)

1. Michael J. Klarman, From the Closet to the Altar: Courts, Backlash, and the Struggle for Same-Sex Marriage (2013).
2. United States v. Windsor, 699 F.3d 169 (2d Cir. 2012), cert, granted, 133 S. Ct. 786 (2012)
3. Perry v. Brown, 671 F.3d 1052 (9th Cir. 2012), cert, granted sub nom. Hollingsworth v. Perry, 133 S. Ct. 786 (2012)
4. Adam Liptak, Justices to Hear Two Challenges on Gay Marriage, N.Y. TIMES, Dec. 7, 2012, http://www.nytimes.com/2012/12/08/us/supreme-court-agrees-to-hear-two-cases-on-gay-marriage.html?ref=adamliptak&_r=0.
5. Baehr v. Lewin, 852 P.2d 44 (Haw. 1993)
6. Klarman, supra note 1, at 48-60.
7. Klarman, supranote 1, at 48-89, 90-91.
8. see also Frank Newport, Religion Big Factor for Americans Against Same-Sex Marriage, GALLUP (Dec. 5, 2012), http://www.gallup.com/poll/159089/religion-major-factor-americans-opposed-sex-marriage.aspx (discussing the results of a Gallup poll conducted in November 2012 showing that a majority of young Americans support same-sex marriage).
9. I will use the inclusive term LGBT (lesbian, gay, bisexual, and transgender), though the issues relating to bisexuality and transgender do not figure much in the book.
10. see also Same-Sex Marriage, Civil Unions, and Domestic Partnerships, N.Y. Times, Dec. 30, 2012, http://topics.nytimes.eom/top/reference/timestopics/subjects/s/same_sex_marriage/index.html (providing an overview of recent legal, political, and public opinion changes with regard to same-sex marriage).
11. 852 P.2d 44 (Haw. 1993).
12. Klarman, supra note 1, at 55.
13. see also Scott L. Cummings & Douglas NeJaime, Lawyering for Marriage Equality, 57 UCLA L. REV. 1235, 1245 (2010) (explaining that LGBT lawyers did not affirmatively pursue litigation to achieve the right to marry in Hawaii, but instead joined the Baehr effort after the fact to help shape legal strategy)
14. Jane S. Schacter, Courts and the Politics of Backlash: Marriage Equality Litigation, Then and Now, 82 S. CAL. L. Rev. 1153, 1165-1166 (2009) [hereinafter Schacter, Politics of Backlash] (discussing how the major gay-rights litigators refused to take on the Baehr action, believing it to be premature).
15. See Schacter, Politics of Backlash, supra note 22, at 1165 (explaining that neither Goodridge nor Baehr was the first lawsuit to challenge different-sex-only marriage and pointing to early test cases in Kentucky, Minnesota, and Washington that the government won).
16. See generally Jones v. Hallahan, 501 S.W.2d 588 (Ky. 1973) (affirming the lower court's refusal to issue a marriage license to a same-sex couple)
17. Baker v. Nelson, 191 N.W.2d 185 (Minn. 1971) (holding that Minnesota law limited marriage to different-sex couples, which did not violate the United States Constitution), appeal dismissed, 409 U.S. 810 (1972)
18. Singer v. Hara, 522 P.2d 1187 (Wash. Ct. App. 1974) (holding that the statutory prohibition on same-sex marriage did not violate state or federal constitutional rights).
19. 191 N.W.2d 185 (Minn. 1971).
20. E.g., Defendant-Intervenors-Appellants' Opening Brief 32 n.7, Perry v. Brown, 671 F.3d 1052 (9th Cir. 2012) (No. 11-16577), 2011 WL 6117216, at *32 n.7, cert, granted sub nom.
21. Hollingsworth v. Perry, 133 S. Ct. 786 (2012).
22. For a recent decision accepting defense arguments that Baker should be accorded precedential effect, see Jackson v. Abercrombie, No. 11-00734, 2012 U.S. Dist. LEXIS 111376, at *45-51 (D. Haw. Aug. 8,2012).
23. Windsor v. United States, 699 F.3d 169 (2d Cir. 2012), cert, granted, 133 S. Ct. 786 (2012).
24. Hollingsworth, 133 S. Ct. 786.
25. Klarman, supra note 1, at 50-51.
26. Indeed, Richard Adams, one of the men seeking to get a marriage license in Colorado recently died, and the New York Times published an obituary. Margalit Fox, Richard Adams, Same-Sex Spouse Who Sued U.S., Dies at 65, N.Y. TIMES, Dec. 24, 2012, https://www.nytimes.com/2012/12/25/us/richard-adams-who-sued-us-after-1975-gay-marriage-dies-at-65.html?_r=0.
27. One wonders if his death would have drawn the same public notice in the absence of the high-profile contemporary marriage debate.
28. Klarman, supra note 1, at 33.
29. See id at 55-57 (chronicling the circumstances leading up to and the backlash against the Hawaii ruling).
30. On the changes since the DOMA debate, see Ariane De Vogue, Congress Evolves on DOMA, Same-Sex Marriage, ABC NEWS (Dec. 6, 2012), http://abcnews.go.com/Politics/congress-evolves-doma-sex-marriage/story?id=17888075#.UNYwnHdU3.
31. On the character of the arguments stressed in the Prop 8 campaign, see Melissa Murray, Marriage Rights and Parental Rights: Parents, the State, and Proposition 8, 5 STAN. J. C.R. & C.L. 357, 366-367 (2009) (characterizing Prop 8 proponents' campaign as presenting their position less as homophobia and discrimination and more as reasonable dissent).
32. Klarman, supra note 1, at 119, 134.
33. Strauss v. Horton, 207 P.3d 48, 122 (Cal. 2009).
34. Klarman, supra note 1, at 189-190.
35. See id at 99 (Newsom's action was largely symbolic, as experts were certain that the state would not recognize such licenses).
36. cf. id. at 189 (arguing that these weddings early in 2004 generated t least as much backlash against gay marriage as had Goodridge itself).
37. Brown v. Bd. of Educ, 347 U.S. 483 (1954).
38. Lawrence v. Texas, 539 U.S. 558 (2003).
39. Goodridge v. Dep't of Pub. Health, 798 N.E.2d 941 (Mass. 2003).
40. Michael J. Klarman, Brown and Lawrence (and Goodridge), 104 MICH. L. REV. 431 (2005).
41. see also id. at 459 (connecting adverse reaction to lawrence to the marriage debate).
42. Klarman, supra note 1, at 218. Here, he lists the costs as impeding progress on other gay-rights priorities, causing Senate candidates to lose reelection and state judges to lose their positions, and perhaps affecting the outcome of the 2004 election, which in turn led to a more conservative court.
43. Cf. id. at 196 (noting that Barack Obama had said several times that his views on same-sex marriage were evolving).
44. Schacter, Politics of Backlash, supra note 22, at 1217.
45. Gerald N. Rosenberg, The Hollow Hope: Can Courts Bring About Social Change? (1991).
46. Gerald N. Rosenberg, The Hollow Hope: Can Courts Bring About Social CHANGE? (2d ed. 2008) [hereinafter ROSENBERG 2008].
47. Brown v. Bd. of Educ., 347 U.S. 483 (1954).
48. Roe v. Wade, 410 U.S. 113 (1973).
49. Rosenberg, supra note 72, at 107-1056, 228-226.
50. Rosenberg 2008, supra note 74, at 419.
51. Jane S. Schacter, Sexual Orientation, Social Change, and the Courts, 54 DRAKE L. REV. 861, 868 (2006) [hereinafter Schacter, Social Change].
52. Schacter, Politics of Backlash, supra note 22, at 1218-1219.
53. See Klarman, supra note 1, at 57-68 (recounting federal and state legislation after Baehr limiting recognition of gay marriages and defining marriage as between a man and a woman).
54. Baker v. Vermont, 744 A.2d 864 (Vt. 1999).
55. Klarman, supra note 1, at 105.
56. Rosenberg 2008, supra note 74, at 341.
57. Klarman's last historical chapter ends in 2011, but his conclusion addresses some develop-in early 2012. Klarman, supra note 1, at 223.
58. Connecticut, California, and Iowa legalized same-sex marriage by judicial action. Vermont, New Hampshire, the District of Columbia, New York, Maryland, and Washington did so by legislative action. For details, see States, Freedom to Marry, http://www.freedomtomarry.org/states/ (last updated Nov. 8, 2012)
59. Relationship Recognition for Same-Sex Couples in the U.S., NAT'L Gay & LESBIAN TASK FORCE, http://www.thetaskforce.org/downloads/reports/issue_maps/rel_recog_ll_7_12_color.pdf (last updated Nov. 7, 2012).
60. California, Freedom To Marry, http://www.freedomtomarry.0rg/states/ent1y/c/california.
61. Frank Brani, A Big Test for Gay Marriage, N.Y. TIMES (Oct. 8, 2012, 8:36 PM), http://brani.blogs.nytimes.com/2012/10/08/a-big-test-for-gay-marriage/.
62. These were Rhode Island, Maryland, New Mexico, and Illinois. Relationship Recognition for Same-Sex Couples in the U.S., supra note 91.
63. These were Washington, Nevada, Illinois, and Delaware.
64. These were Colorado, Maryland, and Wisconsin.
65. Arizona, Freedom To Marry, http:/www.freedomtomarry.org/states/entry/c/Arizona
66. Florida, Freedom To Marry, http://www.freedomtomarry.org/states/entry/c/florida.
67. Schacter, Politics of Backlash, supra note 22, at 1193-1194.
68. Klarman, supra note 1, at 223.
69. Noam Cohen, The Breakfast Meeting: Obama Stops 'Evolving' on Same-Sex Marriage, MEDIA DECODER, N.Y. TIMES (May 10, 2012, 8:56 AM), http://mediadecoder.blogs.nytimes.com/2012/05/10/the-breakfast-meeting-obama-stops-evolving-on-same-sex-marriage/?ref=samesexmarriage.
70. Stuart Elliott, After Success on Same-Sex Marriage, Gay Rights Group Uses Ad to Keep Pressure On, MEDIA DECODER, N.Y. TIMES (Nov. 25, 2012, 5:59 PM), http://mediadecoder.blogs.nytimes.com/2012/ll/25/after-success-on-same-sex-marriage-gay-rights-group-uses-ad-to-keep-pressure-on/.
71. Brani, supra note 93.
72. For one 2012 poll with dramatic results, see Neil King Jr., WSJ/NBC Poll: Majority Now Backs Gay Marriage, WALL St. J. (Dec. 13, 2012, 12:38 PM), http://blogs.wsj.com/washwire/2012/12/13/wsjnbc-poll-majority-now-backs-gay-marriage/ (showing the NBC/Wall Street Journal poll reflecting a twenty-one point rise in support since 2004).
73. For example, Virginia, Texas, and Utah each passed three separate anti-marriage-equality measures at various points in time. Texas, Freedom To Marry, http://www.freedomtomarry.org/states/entry/c/texas
74. Utah, Freedom To Marry, http://www.freedomtomarry.org/states/entry/c/utah
75. Virginia, Freedom To Marry, http://www.freedomtomarry.org/states/entry/c/virginia.
76. See Rosenberg 2008, supra note 74, at 292-293, 303-304 (discussing the Supreme Court's role in the [rjeapportionment [Revolution and in extending procedural rights to criminal defendants).
77. See Lawrence v. Texas, 539 U.S. 558, 585 (O'Connor, J., concurring in judgment) (arguing that Texas's sodomy laws are not supported by a legitimate state interest such as preserving traditional marriage)
78. See Alexander M. Bickel, The Least Dangerous Branch: The Supreme Court at THE BAR OF POLITICS 16-17 (1962) (acknowledging that when the Supreme Court declares a legislative or executive act unconstitutional, it thwarts the will of representatives elected by the majority).
79. For a historical perspective, see Barry Friedman, The Will of The People: How Public Opinion Has Influendced the Supreme Court and Shaped the Meaning of the Constitution 258-262 (2009).
80. Methods of Judicial Selection, Am. Judicature Soc'y, http://www.judicialselection.com/judicial_selection/methods/selection_ofjudges.cfm?state=.
81. See State-by-State List of Initiative and Referendum Provisions, Initiative & Referendum Inst., http://www.iandrinstitute.org/statewide_i%26r.htm (listing twenty-seven states that allow voters to place measures on the ballot through initiatives and/or referenda).
82. See Jed Handelsman Shugerman, Economic Crisis and the Rise of Judicial Elections and Judicial Review, 123 HARV. L. Rev. 1061, 1129 (2010) (offering a historical perspective on countermajoritarianism and elected judges).
83. See Schacter, Politics of Backlash, supra note 22, at 1183-1193 (discussing national scope of debate following the Baehr ruling in 1993).
84. See, e.g., Goodridge v. Dep't of Pub. Health, 798 N.E.2d 941, 961 (holding that because a same-sex marriage prohibition fails a rational basis test the court need not determine whether a strict scrutiny test is warranted).
85. Jane S. Schacter, Ely at the Altar. Political Process Theory Through the lens of the Marriage Debate, 109 MICH. L. REV. 1363, 1381 (2011).
86. The First Circuit employed a version of rational basis review. Mass. U.S. Dep't of Health, 682 F.3d 1, 10-11 (1st Cir. 2012).
87. The Second Circuit employed intermediate scrutiny. Windsor v. United States, 699 F.3d 169, 176 (2d Cir. 2012), cert, granted 133 S. Ct. 786 (Dec. 7, 2012).
88. Schacter, supranote 115, at 1372.
89. See id. at 1390-1396 (describing the problems with political process theory in the context of the marriage debate).
90. Jonathan Capehart, Silence Is Golden on Gay Issues, WASH. POST (Oct. 22, 2012), http://www.washingtonpost.com/blogs/post-partisan/post/silence-is-golden-on-gay-issues/2012/10/21/60427dea-Ibaa-lle2-ba31-3083ca97c314_blog.html.
91. Michael M. Grynbaum, Fickle Wisconsin Sends a Trusty Progressive to the Senate, N.Y. TIMES, Nov. 9, 2012, http://www.nytimes.com/2012/ll/10/us/politics/fickle-wisconsin-sends-tammy-baldwin-to-senate.html?_r=0.
92. Where State Laws Stand, FREEDOM TO MARRY, http://www.freedomtomarry.org/pages/where-state-laws-stand.
93. State Nondiscrimination Laws in the U.S., Nat'L Gay & LESBIAN TASK FORCE, http://www.thetaskforce.org/downloads/reports/issue_maps/non_discrimination_l_12_color.pdf
94. Danielle Ryan, Hate Crimes Down in 2011, But Anti-Gay Violence Is Up, FBI Says, L.A. TIMES, Dec. 10, 2012, http://articles.latimes.com/2012/dec/10/nation/la-na-fbi-hate-crimes-20121211.