Somin on Same-Sex Marriages Cases

In an article appearing in the Tampa Bay Times PolitiFact, legal observers, including Professor Ilya Somin, cite multiple options available to the Court in its highly anticipated rulings in two important same-sex marriage cases. 

Both cases, Hollingsworth v. Perry and United States v. Windsor, while somewhat different, require the court to consider equal protection principles versus laws discriminating against gay men and lesbians.

The Court heard oral arguments on both cases in March. The first case cited above involves California's Proposition 8, a voter-passed initiative defining marriage in California as only between a man and a woman. The other is a challenge to the Defense of Marriage Act (DOMA), a law that defines marriage as between a man and a woman for the purpose of federal laws.

In an amicus brief signed by Somin, he makes an argument that, "It's possible for the Court to strike down DOMA without even considering the question of whether this 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."

What might the Supreme Court decide on same-sex marriage? Tampa Bay Times, June 24, 2013. By Louis Jacobson.

The cases are taking place against a backdrop of striking reversals in public opinion about same-sex marriage. In 2004, more than 60 percent of those surveyed said same-sex marriage should be illegal, according to the ABC News-Washington Post poll. By the time the justices heard arguments for the two cases, the numbers were almost perfectly reversed, with 58 percent saying it should be legal.

"In fact, the issue has moved so fast that in the three months since the justices heard oral arguments, three additional states -- Delaware, Minnesota and Rhode Island -- have passed laws allowing same-sex couples to marry.

"That means that 12 states have full same-sex marriage rights: Connecticut, Delaware, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New York, Rhode Island, Vermont and Washington state, plus the District of Columbia. (In some of these states, the laws haven’t yet taken effect.)

"Another seven states provide full spousal rights for same-sex couples through civil unions or domestic partnerships. They are California, Colorado, Hawaii, Illinois, Nevada, New Jersey and Oregon. And one state, Wisconsin, provides partial spousal rights under domestic partnerships."

Read the article