This is Bradley, one of your TAs, here to talk a little bit today about some of the legal issues surrounding same-sex marriage. The issue of same-sex marriage has been very topical over the last decade or so. In recent years, courts have begun asking whether laws that prevent same-sex couples from marrying are constitutional. The argument that same-sex marriage advocates usually make is that bans on same-sex marriage violate the 14th Amendment, which protects both fundamental liberties and equal treatment under the law. There's a good chance that the Supreme Court will finally weigh in this term to settle once and for all whether the Constitution protects a right to same-sex marriage. So, the backstory goes like this. You may remember Proposition 8 in California. In 2008, the California Supreme Court rules that the State Constitution, not the Federal Constitution, required the state to permit same-sex marriage. In response, California voters passed Proposition 8, which amended the state constitution to once again ban same-sex marriage. Proposition 8 was challenged under the 14th Amendment to the U.S. Constitution. Under Article 6 of the Constitution, the U.S. Constitution is the supreme law of the land. So,whenever there's a conflict between what the Consti, what the U.S. Constitution says, and what state law, including a state constitution says, the U.S. Constitution wins. So, Proposition 8 was struck down by a lower court. And, it went all the way up to the Supreme Court. Exploiting a technicality, the Supreme Court declined to rule on the merits whether the constitution, the U.S. Constitution, that is, protected a right to same-sex marriage. Instead, it said that after the lower courts struck down Proposition 8, no one else had standing to appeal. The effect of this was basically to legalize same-sex marriage once again in California without recognizing a new constitutional right that would apply all across the country. That same day, however, the Supreme Court handed down another opinion that was even more consequential for the question of same-sex marriage. In United States against Windsor, the court struck down part of a federal law called the Defense of Marriage Act, which prohibited the federal government from recognizing any same-sex marriages at all, even in states where same-sex marriage was legal. Windsor was a very confusingly written opinion, and it wasn't clear why exactly the court struck the law down. Parts of the opinion suggest that it was because the law violated the 14th Amendment's liberty and equality protections. But, other parts of the opinion suggested that it was actually because the law violated the principles of federalism. In other words, the idea that the Defense of Marriage Act impinged on an area of law, AKA marriage, whose regulation is reserved to the states. What we do know is that the Windsor case set off a domino effect in the lower federal courts. One after one they began striking down state level bans on same-sex marriage, justifying their decision on the grounds that these laws violated Constitutional guarantees of liberty and equality. In so doing, they were implicitly rejecting the idea that Windsor was about federalism. Now, as same-sex marriage bans fell one after the other in the lower courts, the Supreme Court stayed silent, refusing to intervene. For a while, it seemed like the court could stay out of the issue indefinitely, but then last November something happens that may end up having forced the Supreme Court to finally act. Here's why. Geographically, the United States is divided into several circuits, each with its own federal court of appeals. When a federal circuit court hands down an opinion, that opinion is binding law in all the states within that circuit. So, for example, the second circuit covers New York, Connecticut, and Vermont. When it decides a case that arose in New York, that opinion is binding not only in New York, but also in Connecticut and Vermont. It isn't binding however in Massachusetts, which is in the first circuit, or in Georgia, which is in the eleventh circuit, only in the second circuit is it binding. Circuit courts matter a lot when it comes to deciding whether the Supreme Court will hear a case. When two circuit courts has said conflicting things on a question of federal law, the Supreme Court will often feel compelled to step in and settle the matter once and for all, in order to give federal law a uniform meaning, nationwide, which is important. Federal law shouldn't mean one thing in Florida, and a different thing in California, after all. On the other hand, when the circuit courts have not disagreed, the Supreme Court will usually stay out, waiting until a circuit split has emerged. Well, last November that happened for same-sex marriage. Up until then, every circuit court to consider the issue had ruled that the constitution protects the right to same-sex marriage. Then, for the first time, the 6th Circuit ruled otherwise, upholding several state laws that banned same-sex marriage. That got supporters and opponents of same-sex marriage excited. Because, it was believed that now that a circuit split existed, the Supreme Court would be forced to decide the issue once and for all. Now, the Supreme Court was widely expected to announce that it would hear a same sex marriage case last week, but that didn't happen. However, it is still possible for the court to accept the same-sex marriage case for the 2015 term. To do so though, it would probably need to act by the end of the month. We'll soon find out whether the court intends to do so or not. For all I know, by the time you're watching this video, the court could have already announced whether it will hear a case. If you're interested in this issue, keep an eye out for whether the court does decide to hear same-sex marriage case this month. Most observers expect that if the court does decide to consider the issue, it will probably rule that state bans on same-sex marriage are unconstitutional. Now, what would professor Amar say about the constitutionality of same-sex marriage bans? Well, let's look at the text of the 14th Amendment. The first section begins with the sentence, all persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. So, again, all per, all persons, who are born or naturalized in the U.S. are citizens. This clause confers citizenship on everyone who was born in the U.S. or else naturalized here. The concept of citizenship necessarily implies equality, or equal citizenship, it is preposterous to imagine unequal citizenship. Now, later, the 14th amendment says no state shall deny, deny to any person, person within the jurisdiction, within its jurisdiction to equal protection of the laws. But, every law treats people unequally in some way or another. Right? For example, a policy that disqualifies drug users from receiving government jobs, discriminates against drug users, in some sense. So, what sort of equality does the Constitution require? Well, Professor Amar might say that the answer is in the first sentence. He might say that it's in the word, born. We are citizens, and therefore, we are equal citizens by virtue of having been born. Thus, Professor Amar might say, the government cannot discriminate against people on the basis of traits that were fixed at birth, what we call immutable traits. Things like race, sex, etc. You're born black or white, a man or a woman, and it seems fundamentally wrong to discriminate against someone on the basis of something that is totally out of your control. Today, it is widely recognized as a plain scientific fact that sexual orientation is biological, not something we choose. It is fixed at birth. Some people dispute that, but most people recognize that that's true. Now, therefore on these grounds, we might say that the 14th Amendment prohibits discrimination against persons on the basis of their sexual orientation. Same-sex marriage bans allow straight persons to marry the persons they love. But, deny gay persons the right to marry the persons they love. Because of this, we might say, they discriminate on the basis of sexual orientation, which is an immutable trait, and are therefore unconstitutional under the 14th Amendment. What do you think? Now, Professor Amar might also site three other constitutional provisions that support this birth right theory of equals citizenship, all in the first clause of Article 1, Section 10. First, states are prohibited from passing any bill of attainder. Now, that means a legislative bill that singles out an individual or group, declares her or them to be guilty of a crime, and punishes her or them without a judicial trial. Professor Amar might say that a same-sex marriage ban is similar to a law that declares all gay and lesbian people to be guilty of a moral transgression, and imposes a punishment on them collectively. Next, Article 1, Section 10 prohibits states from passing ex post facto laws. These are laws that retroactively change the legal consequences of actions that were committed before the law was enacted. Same-sex marriage bans might be thought of as being kind of like ex post facto laws, because they take away the legal rights of persons retr, retroactively for the act of being gay or lesbian. Finally, article 1, section 10 prevents states from granting titles of nobility. Now, this was about ensuring that states don't establish rigidly hierarchical social structures. Professor Amar might say that same-sex marriage laws, or rather anti same-sex marriage laws effectively create a sort of dominant lordly class of straight persons who enjoyed the special privilege of marrying the person they love. And, a lower ranking peasant-like class of gay and lesbian peoples who are denied the rights that their social superiors enjoy. Now, these are the type of arguments that Professor Amar likes. They're very creative, but it's not clear whether a court would accept them. What do you think? Well, that's plenty of time for today. I really hope you've been enjoying America's Unwritten Constitution so far. Thanks for tuning in. [MUSIC]
