This is Bradley, one of your TAs, here to talk a little bit today about some of
the legal issues surrounding same-sex marriage.
The issue of same-sex marriage has been very topical over the last decade or so.
In recent years, courts have begun asking whether laws that
prevent same-sex couples from marrying are constitutional.
The argument that same-sex marriage advocates usually make is that bans on
same-sex marriage violate the 14th Amendment,
which protects both fundamental liberties and equal treatment under the law.
There's a good chance that the Supreme Court will finally weigh in this term to
settle once and
for all whether the Constitution protects a right to same-sex marriage.
So, the backstory goes like this.
You may remember Proposition 8 in California.
In 2008, the California Supreme Court rules that the State Constitution,
not the Federal Constitution, required the state to permit same-sex marriage.
In response, California voters passed Proposition 8,
which amended the state constitution to once again ban same-sex marriage.
Proposition 8 was challenged under the 14th Amendment to the U.S. Constitution.
Under Article 6 of the Constitution,
the U.S. Constitution is the supreme law of the land.
So,whenever there's a conflict between what the Consti, what the U.S.
Constitution says, and what state law,
including a state constitution says, the U.S. Constitution wins.
So, Proposition 8 was struck down by a lower court.
And, it went all the way up to the Supreme Court.
Exploiting a technicality,
the Supreme Court declined to rule on the merits whether the constitution, the U.S.
Constitution, that is, protected a right to same-sex marriage.
Instead, it said that after the lower courts struck down Proposition 8,
no one else had standing to appeal.
The effect of this was basically to legalize same-sex marriage once again in
California without recognizing a new
constitutional right that would apply all across the country.
That same day, however, the Supreme Court handed down another opinion that was
even more consequential for the question of same-sex marriage.
In United States against Windsor,
the court struck down part of a federal law called the Defense of Marriage Act,
which prohibited the federal government from recognizing any same-sex marriages at
all, even in states where same-sex marriage was legal.
Windsor was a very confusingly written opinion, and
it wasn't clear why exactly the court struck the law down.
Parts of the opinion suggest that it was because the law violated the 14th
Amendment's liberty and equality protections.
But, other parts of the opinion suggested that it was actually because the law
violated the principles of federalism.
In other words, the idea that the Defense of Marriage Act impinged on an area of
law, AKA marriage, whose regulation is reserved to the states.
What we do know is that the Windsor case set off a domino effect in
the lower federal courts.
One after one they began striking down state level bans on same-sex marriage,
justifying their decision on the grounds that these laws
violated Constitutional guarantees of liberty and equality.
In so doing,
they were implicitly rejecting the idea that Windsor was about federalism.
Now, as same-sex marriage bans fell one after the other in the lower courts,
the Supreme Court stayed silent, refusing to intervene.
For a while, it seemed like the court could stay out of the issue indefinitely,
but then last November something happens that may end up
having forced the Supreme Court to finally act.
Here's why.
Geographically, the United States is divided into several circuits,
each with its own federal court of appeals.
When a federal circuit court hands down an opinion,
that opinion is binding law in all the states within that circuit.
So, for example, the second circuit covers New York, Connecticut, and Vermont.
When it decides a case that arose in New York,
that opinion is binding not only in New York, but also in Connecticut and Vermont.
It isn't binding however in Massachusetts, which is in the first circuit, or in
Georgia, which is in the eleventh circuit, only in the second circuit is it binding.