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Tuesday, May 26, 2009

Law - Same sex marriage poses interesting legal issues

Early this afternoon, the Supreme Court of California will announce its decision in the Prop. 8 challenge. The headline to this LA Times story today reads: "California Supreme Court to issue Prop. 8 decision today: Rulings are expected on the legality of the measure barring same-sex marriage and the status of those who married before it was approved by voters."

Meanwhile, there has been much written recently about legal issues posed by same sex marriage. "The Latest Battle in the Same-Sex Marriage War" was the heading of this WSJ Law Blog entry by Ashby Jones dated May 21st. It begins:

To date, the more heated and visible battles over same-sex marriage have played out at the state level, either in courtrooms, at the ballot-box or in legislative halls.

But an interesting battle is now brewing at the federal level. The question is this: does the 1996 federal Defense of Marriage Act, which defines marriage as a union of one man and one woman, require the government to ignore same-sex marriage even if a state chooses to recognize them?

At stake is more than a simple federal acknowledgment: Only opposite-sex spouses are eligible for many federal benefits after the death of a spouse.

A lawsuit challenging DOMA is playing out in a Massachusetts federal court. Dean Hara, the widower to Gerry Studds (pictured, right), the first openly gay U.S. congressman — who died in 2006 — along with several others, is challenging the portion of DOMA that keeps them from getting federal marital benefits. Click here for the WSJ story.

A victory for Hara and his cohorts would increase the financial benefits of gay marriage, which could help spread the practice. Though legal experts say courts would be reluctant to invalidate laws set by Congress, supporters hope a victory will put pressure on Congress to repeal DOMA, a rescission that President Obama says he favors even though he opposes gay marriage.

Here is the companion story from ther May 21st WSJ.

IIya Somin wrote a May 25th entry in The Volokh Conspirary headed "The Impact of Judicial Power on Gay Marriage Revisited."

A NY Times article by Matt Bai talks about a generational shift. A quote:

A decade later, it is this emergent political ethos that is rapidly asserting itself in the debate over gay marriage, as judges and legislators across the land — most recently Legislatures in New Hampshire and Maine — reconsider the issue. According to the group Freedom to Marry, about 13 percent of Americans now live in a state that allows gay marriage or recognizes marriage licenses issued in other states, and that percentage is certain to rise. The gist of the disagreement now isn’t partisan or theological as much as it is generational. Unlike their parents, younger Americans and those now transitioning into middle age have had openly gay friends and colleagues all their lives, and they understand homosexuality to be a form of biological happenstance rather than of emotional disturbance. They’re less inclined to restrict the personal decisions of gay Americans, even if they don’t necessarily want the whole thing explained to their children as part of some politically correct grade-school curriculum. In a sense, the gay rights movement of an earlier era was so successful in changing social attitudes that the movement itself can now seem obsolete, in the same way that younger Americans who have grown up with the premise of environmentalism in their daily lives consider Greenpeace to be a kind of hippie anachronism.
Peter Steinfels, writing in the NY Times on May 22nd, reported a different viewpoint in an article that begins:
The movement toward legalizing same-sex marriage in New Hampshire has hit a bump. Gov. John Lynch, a Democrat, said last week that he would sign a same-sex marriage bill only if it included new language expanding protection for religious institutions that might object to same-sex marriage. On Wednesday, the state’s House of Representatives rejected that amendment. So for the moment, the matter is stalled in New Hampshire.

Posted by Marcia Oddi on May 26, 2009 09:01 AM
Posted to General Law Related