Chief Justice Earl Warren professor of constitutional law at New York University School of Law
Same-sex marriage has finally made it to the highest court in the country, as the Supreme Court considers two cases central to how marriage is defined at the state and federal levels.
+ Brian Lehrer Show: Gay Marriage Demonstrations Live from National Mall
What do these ballot initiatives in Minnesota, Maine, Maryland, and Washington do? And what do they say about the desire of the people, the limits of the law, and the very idea of constitutionality? Evan Wolfson is the president of Freedom to Marry, which is an American coalition committed to extending and preserving same-sex marriage rights. And Kenji Yoshino is a constitutional law professor at New York University.
On Tuesday, a federal appeals court panel ruled that Proposition 8, the voter-approved ban on same-sex marriage which passed into law in 2008, was unconstitutional. This is the first time an appellate court has said there is any kind of constitutional right to marry. But this ruling is still being considered "cautious" by legal experts: Proposition 8 supporters can appeal to the entire 9th circuit, or ask the Supreme Court to take up their case.
President Barack Obama declared the Defense Of Marriage Act unconstitutional yesterday, and ordered the Justice Department to no longer defend it. The act, which was signed into law in by President Bill Clinton back in 1996, barred any federal recognition of same-sex marriages. Reactions were split between Democrats and Republicans. House Speaker John Boehner (R-Ohio), said, "while Americans want Washington to focus on creating jobs and cutting spending the president will have to explain why he thinks now is the appropriate time to stir up a controversial issue that sharply divides the nation."
A federal judge has overturned Proposition 8, the California ballot measure that defines marriage as between one man and one woman. The measure passed with 52 percent of votes in November 2008. Yesterday, Judge Vaughn Walker ruled it unconstitutional on 14th Amendment grounds of due process and equal protection under the law.
In a decision that ran more than 100 pages, Judge Vaughn Walker stated that "Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license. Indeed, the evidence shows Proposition 8 does nothing more than enshrine in the California Constitution the notion that opposite sex couples are superior to same-sex couples."
The fight over gay marriage resumes in California today with Perry v. Schwarzenegger ... and you may be able to watch it on YouTube, tonight. Two same sex-couples are suing the enforcers of California's Proposition 8 on grounds that the gay marriage ban violates their federal constitutional rights. This might lay the groundwork for an appeal to the U.S. Supreme Court. The trial will be the first federal court case in the U.S. to be broadcast on YouTube. Kenji Yoshino, professor of law at New York University, has been following the case.
President Obama said yesterday that he will extend some benefits to the same-sex partners of federal employees. But with the Defense of Marriage Act still in place, how big a step forward is really possible? The Takeaway talks to Kenji Yoshino, the Chief Justice Earl Warren Professor of Constitutional Law at the NYU School of Law.
To see a map of the state of gay rights across the globe, click here.