Sunday, April 12, 2009

Does the specter of Roe v. Wade hang over gay marriage and the Supreme Court?

04/12/09 Sexual Orientation and the Law Blog:

"After a week in which the number of states authorizing same-sex marriage doubled," Mayer Brown attorney Steve Sanders, writes, "the New York Times explains why the U.S. Supreme Court isn't likely to take up the issue anytime soon. [Northwestern law professor] Andy Koppelman puts his finger on the main reason why this is so: the groups like Lambda that have brought these cases, fearing what could happen if the federal courts get their hands on the issue right now, bring them entirely based on state constitutional law theories, so there's nothing to invoke the U.S. Supreme Court's jurisdiction."

In fact, Koppelman underscores the legal strategy involved in bringing the challenge to Iowa's DOMA. "The Iowa decision,” he said, "is the product of a very smart legal team researching every state supreme court and every state legislature.” Camilla Taylor, senior staff attorney for Lambda Legal in Chicago and lead counsel on the Iowa case, also explains the rationale for targeting in Iowa. She told the Chicago Tribune ("Gay marriage and Iowa: Why's everyone so surprised?"), "We knew we could count on Iowa's leadership on civil rights issues."

Oddly, none of the law professors interviewed for the NY Times article comments on a recent challenge to the federal Defense of Marriage Act on behalf of eight Massachusetts same-sex couples and three same-sex widows.

The NY Times article also suggests a renewed debate on the critical role of courts in advancing democratic reform of state constitutions:

"Since the Vermont Legislature decided to allow same-sex marriages, legal scholars have been debating whether that political victory could have been secured without the judicial decisions that preceded it. 'Without the activist decisions on same-sex marriage,' [Columbia University law professor Nathan] Persily said, 'there might not have been a fire lit under the legislature that passed it.'"

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