Somin Comments on SCOTUS Review of Same-Sex Marriage

Among the options possible out of this week's Supreme Court arguments on challenges to laws relating to same-sex marriage is that of a mixed decision says Professor Ilya Somin in a Miami Herald article. 

"It's possible for the Court to strike down DOMA without even considering the question of whether there is a constitutional right to same-sex marriage, because defining marriage is beyond the power of the federal government, regardless of whether there is any individual right involved," says Somin, who has signed a brief making that argument.

Historic arguments at the nation's highest court centered on challenges to California's Proposition 8, a voter-passed initiative that defines marriage as only between a man and a woman, and to the Defense of Marriage Act (DOMA), a 1996 federal law that defines marriage as between a man and a woman. The law allows states to refuse to recognize same-sex marriages that are performed by other states.

Key arguments in the same-sex marriage case before the U.S. Supreme Court, Miami Herald, March 25, 2013. By Louis Jacobson.


"Is there a fundamental right to marry? Those who oppose marriage for same-sex couples argue that society has an interest in drawing distinctions because married couples can procreate. Supporters reject that view. 'I think a critical line of questions, perhaps from Justice Anthony Kennedy, about the purpose of marriage, will shed a great deal of light on the court's thinking about these cases,' said Chapman University law professor John Eastman, who has filed friend-of-the-court briefs in support of DOMA and Prop 5."