Academic

Karlan on Same-Sex Marriage & the Supreme Court

By Lawrence Solum

Pamela S. Karlan (Stanford Law School) has posted Marriage, Method, and the Supreme Court (Supreme Court Review, Forthcoming) on SSRN. Here is the abstract:

Marriage is in the air at One First Street, N.E. Within the next few Terms, the Supreme Court seems likely to face head-on the question whether same-sex couples have a constitutional right to marry.

Last Term, the Court faced a trilogy of cases skirting the edges of the question. In Hollingsworth v. Perry, the Court overturned a district court?s decision to allow closed circuit televising of the trial challenging California?s ban on same-sex marriage. In Doe v. Reed, the Court rejected a challenge to Washington State?s Public Records Act by opponents of Washington?s domestic-partnership law who wanted to keep private their signatures on a referendum petition. And in Christian Legal Society v. Martinez, the Court upheld a public law school?s refusal to fund a student group that restricted its membership to individuals who agreed that sexual intimacy was permissible ? and that they would engage in it ? only within a ?marriage between a man and a woman.? Each time, the Court was sharply, indeed angrily, divided.

None of these cases tells us directly how the Justices will resolve the marriage question bearing down upon them, although each offers some hints. But both before and after that question reaches the Court, it will shape, with a sort of gravitational pull, the development of constitutional law more broadly. Just as questions of racial justice provided a lens during the Warren and Burger Courts for viewing issues ranging from constitutional criminal procedure to the state action doctrine to the scope of libel law under the First Amendment, the Court?s confrontation with claims involving sexual orientation serves as a lens through which to view a variety of constitutional law issues ? for example, television in the courtroom; standing doctrine; tthe distinction between facial and as-applied challenges; the scope of rationality review and of ?exacting scrutiny?; the continuing vitality of antidiscrimination law and the relationship among status, conduct, and belief; and adherence to originalism as an interpretive method in the face of rapid social and technological change.

Hollingsworth, Doe, and Christian Legal Society are not only cases about gay rights and how to reconcile the competing claims of supporters and opponents of marriage equality. They are also cases about technology. The rights to communicate about political issues, to associate with like-minded people, and to retain one?s privacy touch core constitutional values. The internet has transformed the nature of information, simultaneously enhancing and threatening these values and posing new problems for constitutional interpretation. Ironically, the interaction of rapid social and technological change meant that in all three cases the group invoking claims of constitutional protection was not gay people, but defenders of traditional sexual mores.

Full post as published by Legal Theory Blog on December 09, 2010 (boomark / email).