Dr. Jillian T. Weiss

Marriage Equality Panel Poses The Hard Questions

Filed By Dr. Jillian T. Weiss | September 20, 2011 9:00 AM | comments

Filed in: Living, Marriage Equality
Tags: marriage equality, Ramapo College, same-sex marriage

This morning I am scheduled to be on a panel about same sex marriage at the college in honor of Constitution Day. Here at Ramapo College, we are kind of low-key about our LGBT-ness, and when they asked me to be on a panel about this subject, I was a bit surprised. But it was the middle of the summer, and I was feeling magnanimous (that feeling went out with the second week of classes). Plus, I figured, it would be moderated by a student who would ask me wide-eyed about how great is it that we now have marriage equality in New York, and surely New Jersey is soon to follow? You don't really need to prepare for a panel like that. Plus, there would probably be a free lunch, and our catering people know how to do up a lunch.

No such luck.

No, instead, I received the following commands in preparation for the panel. Turns out the panel is being moderated by a political science colleague, Michael Unger, who really knows his marriage equality stuff. Get this:

**Panelists: Please be prepared for a response to each question and follow up question
listed below. Responses should be no more than 2-3 minutes in length. The goal of the panel discussion, and question and answer session, is to provide a forum where the laws and circumstances surrounding the issue can be discussed and critiqued, rather than advocate based on personal or religious beliefs.

Question #1: The Constitutional issue of same sex marriage is a States Right issue about
property rights, residing in the interpretation of Article VI Supremacy Clause of the U.S.
Constitution. In your professional opinion, should discussions pertaining to equal protection or civil rights be relevant in this context? Or are they two, separate Constitutional arguments?

Question #2: Briefly touch upon how the historical context of the United States Constitution and the interpretation of the Supreme Court have contributed to the contemporary discussion about the legalization of same-sex marriage.

Question #3: The New York Marriage Bill was passed 33-29 in June, making New York the largest state to allow same-sex couples to wed. What political and legal measures need to take place in order for this issue to be legitimately discussed on a national level? Is same-sex marriage viewed under the 14th Amendment of Equal Protection? Can same-sex marriage be viewed as a 14th Amendment issue? Or is same-sex marriage just states property rights?

(Please see: http://www.nytimes.com/2011/06/25/nyregion/gay-marriage-approved-by-

Oh my lord. I have had to get my thoughts in order, and quick. Here's my brief answers to these questions. If you have some better answers for me, get them in to me quick in the comments section. The panel starts at 12. Don't want to be late; they're serving refreshments first.

Answer #1: While the federal Constitution's Supremacy Clause is involved in discussions of marriage, that is so only because of the federal Defense of Marriage (DOMA) statute, which purports to permit states not to give full faith and credit to same-sex marriage records of other states, and sets forth a definition of marriage for purposes of federal law that is limited to opposite-sex couples. However, DOMA repeal would not require any state to recognize a marriage performed in another state, and it is unclear at this point whether repeal would by itself require the federal government to recognize a same-sex marriage for purposes of federal law.

The Equal Protection Clause is an integral part of the marriage equality argument. The argument that state governments must recognize same sex marriages, within and/or without the state, resides in the Equal Protection Clause principle that "no state shall ... deny to any person within its jurisdiction the equal protection of the laws," as in the court opinions in Baehr v. Miike (Haw. 1993) and Goodridge v. Department of Public Health (Mass. 2003).

On the federal level, two recent cases, Gill v. OPM and Commonwealth v. Health and Human Services (both D. Mass. 2010) have ruled that the Equal Protection Clause, the Tenth Amendment and the Spending Clause forbid the federal government from setting its own definition of marriage independent of the states. Other cases are pending on this issue, and the Supreme Court could reverse these decisions.

Answer #2: The issue of marriage equality has been around for a long time, and the U.S. Supreme Court ruled against it in Baker v. Nelson (1972). I would trace the roots of a doctrine that supports a civil right to marriage equality to Supreme Court recognition that statutes differentiating on the basis of race are unconstitutional on the basis of the intertwined principles of equal protection and substantive due process. While there are earlier roots, I would draw a line as follows: Loving v. Virginia, 388 U.S. 1 (1967); Eisenstadt v. Baird, 405 U.S. 438, 453 (1972); Roe v. Wade, 410 U.S. 113, 152-153 (1973); Zablocki v.Redhail, 434 U.S. 374, 384 (1978); Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 851 (1992); and Lawrence v. Texas, 123 S.Ct. 2472 (2003).

Answer #3: In calling for a "national level" discussion, one is essentially calling for a political discussion rather than a strictly legal one, and that implies a discussion of the political fairness and viability of legislative remedies in the various states. The cultural prejudice against LGBT people in many states effectively dooms legislative efforts in the short-term. In more progressive states, such as New Jersey, where a majority are in favor of marriage equality, I believe that continuing and persistent efforts by organized groups of marriage equality advocates will pay off in the short term, but marriage inequality advocates will continue to be successful with demonizing LGBT people in those states where ballot initiatives allow interest groups to play on cultural fears of "turning kids gay." However, it is my belief that marriage inequality is a violation of state and federal guarantees of equal protection and due process, as the court held in Perry v. Schwarzenegger (D. Cal. 2010) and that the United States Supreme Court will eventually recognize that.

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