Marriage Equality Symposium

by Harvard Law Development on April 12, 2015 Leave a Comment

Lawyers Have a Conscience Too: The Role of BigLaw in the Fight for Marriage Equality

By Ana Choi

On April 28, the Supreme Court will hear oral arguments for Obergefell v. Hodges, the case that could finally and conclusively bring marriage equality to all states. Public attention is mostly focused on what the Supreme Court will decide and how they will reach their decision, but this case also brings up interesting questions about the role of lawyers in cases that involve controversial public policy issues. A New York Times article has recently reported that no major law firms are willing to represent the side arguing against same-sex marriage, due to the belief of many lawyers that opposing same-sex marriage is bigotry akin to racism, as well as firms’ concerns about retaining clients and attracting talent.

The article then goes on to point out that “representing unpopular clients has a long and proud tradition in American justice,” citing examples such as John Adams representing the British soldiers after the 1770 Boston Massacre, Clarence Darrow defending two activists who bombed the L.A. Times building in 1910, and law firms today that are defending Guantanamo Bay detainees accused of ties to Al Qaeda. [Read more…] about Lawyers Have a Conscience Too: The Role of BigLaw in the Fight for Marriage Equality

by Harvard Law Development on March 25, 2015 Leave a Comment

Same-Sex Marriage: A View from Virginia

The following is a question-and-answer with Stuart Raphael, the Solicitor General of Virginia. Virginia has filed an amicus brief supporting the plaintiffs in Obergefell v. Hodges, a Supreme Court case challenging state same-sex marriage bans. Virginia’s same-sex marriage ban was struck down by a federal court last year in Bostic v. Schaefer.

Q: Virginia’s amicus brief in Obergefell v. Hodges focuses extensively on refuting the “narrowest historical context” approach. Can you give us a brief explanation of your argument and cases stemming from Michael H. v. Gerald D.? [Read more…] about Same-Sex Marriage: A View from Virginia

by branden on March 16, 2015 1 Comment

Equality and Liberty in the Same-Sex Marriage Case

By Michael C. Dorf

Since the Supreme Court’s 2013 decision in United States v. Windsor, invalidating Section 3 of the Defense of Marriage Act, a clear majority of lower courts to hear challenges to state laws forbidding same-sex marriage have found for the plaintiffs. Some state executive officials—like those in New Jersey and Pennsylvania—graciously accepted defeat and did not appeal. Some—like those in Virginia—saw the light and became vigorous advocates for the rights of their gay and lesbian citizens.

But other state officials sought relief in the highest court in the land. They asked the Justices to stay the orders that allowed same-sex marriages to go forward, claiming, inter alia, that if the Court were ultimately to rule against a right to same-sex marriage, it would be very difficult to unwind the marriages that occurred in the interim. Last fall, the Court denied the stay applications, thus sending a very clear signal that at least five Justices intended to recognize a right to same-sex marriage when the issue came before them.

And now the issue is before the high Court. In light of the Court’s refusal to block the thousands of interim same-sex marriages, it is essentially a foregone conclusion that the plaintiffs will prevail in the cases consolidated under the caption Obergefell v. Hodges. The remaining question is how the Court will reach that conclusion.

by bloizides on November 2, 2014

A SCOTUS Ruling on Gay Marriage: What’s it Actually Worth?

By HLPR Online Staff

Since the Supreme Court’s June 2013 ruling in United States v. Windsor—holding the federal Defense of Marriage Act unconstitutional—gay rights advocates have brought a tidal wave of lawsuits across the country successfully challenging state bans on same-sex marriage. On October 6^th of this year, the Supreme Court denied cert in cases from five states, leaving in place lower court rulings striking down same-sex marriage bans. Though many had hoped the Court would hear the cases and rule definitively for same-sex marriage, the Court was likely following its usual practice of waiting for a split of opinion in the federal courts of appeals before taking a case. During a talk at the University of Minnesota Law School this past September, Justice Ginsburg at least seemed to indicate that the Court may wait for a split before taking up same-sex marriage.

Thus, all eyes are now turned to the Sixth Circuit Court of Appeals in Cincinnati, where a same-sex marriage case may produce the split needed to encourage the Supreme Court to act. The swing vote in the Sixth Circuit case is Judge Jeffrey Sutton, a former Scalia clerk and frequent conservative voter. With a decision expected any day now, Judge Sutton could be the vote to drive gay marriage to the Supreme Court.

But for those committed to true equality for gay people, what does a Supreme Court ruling in favor of same-sex marriage actually get you? [Read more…] about A SCOTUS Ruling on Gay Marriage: What’s it Actually Worth?

by apatenaude on February 19, 2014

So is gay marriage constitutional or what?

By Tom Watts

In light of the Virginia gay marriage decision last week, Bostic v. Rainey, it seems appropriate to revisit the constitutional status of gay marriage. The courts have moved rapidly on this issue, and a summary from even a year ago would do little justice to the current situation.

As Slate has pointed out, gay rights have done well in the courts since the Windsor case. Windsor was not easy to construe at the time, because, as Professor Joslin noted shortly after the case, “the opinion in Windsor does not neatly fit into any previously established analytical scheme.” The dissents disagreed over the significance of the majority’s opinion. Justice Scalia felt that it was clear that the reasoning in the decision (which he also described as “legalistic argle-bargle”) was tantamount to declaring unconstitutional all state gay marriage bans, though he encouraged lower courts to distinguish the decision as best they could. Chief Justice Roberts, on the other hand, believed that the majority’s “analysis leads no further.”

by bloizides on June 28, 2013

The Supreme Court and Standing

By Tom Watts

Today, the Supreme Court dismissed the appeal on California’s Proposition 8 in Hollingsworth v. Perry, allowing the District Court’s decision overturning Prop 8 to stand. This decision returned California to the list of states permitting same-sex marriage. With this decision, accompanied by the defeat of DOMA in United States v. Windsor, today was a great day in the fight for gay rights.

But as the just euphoria over a major civil rights victory at a court that has been quite hostile to civil rights — let us not forget the demise of a significant portion of the Voting Rights Act in Shelby County v. Holder just yesterday — begins to settle, we should consider just how the Court came to these salutary outcomes. I suggest this because I believe that Perry was wrongly decided.