The Volokh Conspiracy
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Robbie Kaplan, the Paul Weiss lawyer who won United States v. Windsor, is lead counsel on an amicus brief to be submitted by the Human Rights Campaign in the pending same-sex marriage cases. Professor Steve Sanders of Indiana University Maurer School of Law and I have joined as co-counsel. You can read the whole brief here.
We argue that state laws excluding same-sex couples from marriage violate the Equal Protection Clause because they reflect unconstitutional animus. We maintain that state constitutional amendments prohibiting same-sex marriages and mini-DOMAS blocking recognition of such marriages were born of animus and stereotypical thinking about gay people during a period of marriage panic in the United States.
Moreover, we argue that even state definitions of marriage predating the marriage panic persist today because of animus. Marriage exclusions remain in place in some states because of unsupported stereotypical thinking and a resistance to careful reflection about the human needs and capacities of gay couples to be married.
The extant marriage exclusions are defended with transparently thin justifications about things like the need for responsible procreation. These justifications are mostly a cover for moral condemnation of homosexuality, which is a constitutionally illegitimate purpose, and a malign neglect of gay families.
Here's a summary of the methodology used in the brief for arriving at these conclusions:
While this Court has never attempted to catalogue systematically all the circumstances that indicate the existence of constitutionally impermissible animus, there are several objective factors that have been considered by this Court to be relevant. They include: (1) the law's text; (2) the political and legal context of its passage, including the legislative proceedings and history and evidence that can be gleaned from the sequence of events that led to passage; (3)the law's real-world impact or effects; and (4) the government's failure to offer legitimate objectives for the law along with means that truly advance those objectives. See, e.g., Windsor, 133 S. Ct. at 2693-94; Romer, 517 U.S. at 634-35; Cleburne, 473 U.S. at 448; Arlington Heights, 429 U.S. at 266-68; Moreno, 413 U.S. at 536-38. As discussed below, because each and every one of these factors is present here, there is more than sufficient basis for this Court to conclude that the design, purpose, and effect of the laws at issue in Kentucky, Michigan, Ohio, and Tennessee are "not to further a proper legislative end but to make [gay people] unequal to everyone else." Romer, 517 U.S. at 635.
The brief concludes with a note about the excruciating experience of one of the petitioners, James Obergefell of Ohio. When John Arthur, Mr. Obergefell's partner of 20 years, developed ALS the men decided to fly to Maryland where they could marry. Inside the plane, they exchanged vows on the tarmac at the Baltimore airport as Mr. Arthur lay dying on a stretcher. Then they flew back home. (You can watch a Cincinnati Enquirer video about their experience here.) When Mr. Arthur died, Ohio refused to list Mr. Obergefell on the death certificate because state law refused any recognition of their marriage. We argue:
It is absurd to contend that refusing to certify that a decedent was "married" to his spouse at the time of his death could possibly influence child rearing, or the willingness of straight couples to marry, or even offend tradition. But actions speak louder than words. Ohio insists that there must be a blank space on Mr. Arthur's death certificate where Mr. Obergefell's name should be. Not content to deny these men the equal protection of the law in life, it also seeks to deny them dignity even in death. Ohio's decision to reject this reasonable request to correct a factually inaccurate death certificate speaks volumes about what is really going on, leaving no doubt that the true motivation behind these laws is constitutionally impermissible animus against gay people.
Before the brief is actually filed in early March, HRC is asking supporters to read and electronically sign it. You can do so here.