Same-Sex Marriage in 2013 and Beyond

Thursday, December 26, 2013

Newark Mayor and U.S. Sen.-elect Cory Booker Presides Over First Gay Marriage Ceremony In New Jersey

The Supreme Court's ruling in U.S. v. Windsor, the case that declared the Defense of Marriage Act unconstitutional, marked just one of the many milestones in LGBT rights this year. 

Legislatures in Rhode Island, Delaware, Minnesota, Hawaii and Illinois passed same-sex marriage equality laws throughout 2013, and Colorado's legislature voted for civil unions. Courts in New Jersey, New Mexico and Utah ruled in favor of same-sex marriage, and a federal judge in Ohio recently declared that the state must recognize out-of-state same-sex marriages on death certificates. 

Dale Carpenter, author of "Flagrant Conduct: The Story of Lawrence v. Texas: How a Bedroom Arrest Decriminalized Gay Americans" and professor at the University of Minnesota Law School, examines the state of same-sex marriage rights as 2013 draws to a close, and look ahead to what to expect in 2014.


Dale Carpenter

Produced by:

Jillian Weinberger

Comments [3]


Leslie from Alameda:

Your point about women's suffrage and slavery rather nicely illustrate some of the points that Justice Scalia was trying to make in his famously scathing dissent in Lawrence v. Texas.

Scalia wondered, after a couple of hundred years of universal acknowledgment that states could make their own laws pertaining to homosexual conduct, what part of the U.S. Constitution suddenly forbade states from enacting such laws.

With women's suffrage, we know it was the Nineteenth Amendment in 1920 which lent conclusive Constitutional authority to federal elimination of gender discrimination in voting.

With slavery, it was (in addition to the Emancipation Proclamation) the Thirteenth Amendment, which specifically outlawed slavery.

Scalia essentially wondered where the gay rights amendment was. There isn't one.

Constitutional amendments are not easy; they test the national will to move in any given social or cultural direction. There'd be less doubt about the imposition of federal power, if it were based on an amendment to the Constitution.

So that's the simple, clear explanation as to why gay rights are not like slavery or women's suffrage. There is absolutely nothing in the constitution that establishes a federal right to gay marriage in states that forbid it.

Dec. 26 2013 08:46 PM
Leslie from Alameda, CA

For all the value of Mr. Carpenter's legal reasoning and other comments, the bit about Federalism and "states experimenting" leaves me at a loss.

Was slavery or women having the right to vote "experiments" that turned out wrong and right? Do we need to "experiment" to see if equal rights as a principle can be applied to all citizens?

When and what state ever had an "experiment" with marriage for straight couples? Was it conducted to see if they were worthy?

Dec. 26 2013 04:26 PM

Professor Carpenter has a strange notion of federalism. He seems to like the notion that states like Maine, Maryland, Vermont, New York, Rhode Island, Illinois, Minnesota and Washington have found the space within "federalism" to legally normalize homosexual marriage.

But does he agree that states also have the legal space within federalism to legislatively define marriage as between one man and one woman? More than 30 states have done that, many of them via state constitutional amendments passed with large bipartisan majorities of the electorates and the legislatures.

Is federalism only valid as a concept if it is driving the nation, state by state, toward universal gay marriage rights?

The recent case in Utah was just such a case, and there are other similar cases pending in several other states: saying that states who legally enacted bans on gay marriages must yield to the power of the federal government under the power of the 5-4 decision in Lawrence v. Texas and its progeny. So much for those states' legislative experimentation.

As usual, The Takeaway takes on an issue (homosexual marriage) through a partisan filter. There were just two guests on the program today addressing this issue, both of whom are advocates for gay rights (and interviewed by host who seems to clearly favor gay rights), with absolutely no one representing the opposite viewpoint.

Dec. 26 2013 11:12 AM

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