Somin Cited in NY Times on Same-Sex Marriage Case

In an article analyzing oral arguments in the same-sex marriage case Obergefell v. Hodges, The New York Times cites legal arguments advocated by Professor Ilya Somin that may have influenced Chief Justice Roberts's approach to the case. Before the case was argued before the Supreme Court, Professor Somin, along with Professor Andrew Koppelman of Northwestern University School of Law, had submitted an amicus brief arguing that laws banning same-sex marriage should be invalidated because they discriminate on the basis of sex.


In a telling moment at Tuesday’s Supreme Court arguments over same-sex marriage, Chief Justice John G. Roberts Jr. suggested that he may have found a way to cast a vote in favor of the gay and lesbian couples in the case.

“I’m not sure it’s necessary to get into sexual orientation to resolve this case,” he said. “I mean, if Sue loves Joe and Tom loves Joe, Sue can marry him and Tom can’t. And the difference is based upon their different sex. Why isn’t that a straightforward question of sexual discrimination?”

“This would be a clean, formalistic way for the court to resolve the case,” Andrew Koppelman, a law professor at Northwestern University, said in an interview. “It could just apply existing sex discrimination law.”

Professor Koppelman and other scholars filed a brief urging the court to strike down the four same-sex marriage bans before it on sex-discrimination grounds. The chief justice’s musings were similar to a passage in the brief.

Ilya Somin, a law professor at George Mason University, wrote on The Volokh Conspiracy, a blog about law, that the problem with this argument “is that, by the same reasoning, laws banning interracial marriage don’t discriminate on the basis of race.”

Gender Bias Issue Could Tip Chief Justice Roberts Into Ruling for Gay Marriage, The New York Times, April 29, 2015. By Adam Liptak. 

Related News Items:

Somin Files Amicus Brief in Obergefell v. Hodges
Somin Op-ed in USA Today