Legal Commentary

In honor of yesterday's momentous events in California, I thought it would be appropriate to post to a wider audience a question I sometimes ask my students to prompt a discussion of the proper role of constitutional courts.

After the jump, I offer a very plausible "history" of the evolution of same-sex marriage (no fighting the hypothetical, please!).  The question for those who want to play along at home is, in this hypothetical universe, did the courts (writ large and over the course of the entire period 1995-2025) (a) play an appropriate role in the evolution of our institutions; (b) exceed their proper judicial role; or (c) fall short of living up to their institutional and constitutional responsibilities?

(1) The events up until now happen as in real life (including the Vermont, Mass, and California decision, the adoption of civil unions in a handful of state, DOMA, etc).

(2) Later this year, the Connecticut Supreme Court joins Mass and Calif, while voters in Calif narrowly reject a state const amend to overturn the decision.

(3) In the next two years, NY and a few small states adopt same-sex marriage through the legislative process, while another half dozen states decide to recognize out-of-state same-sex marriages.  In 2010, Congress repeals the portions of DOMA that prohibit the federal government from recognizing same-sex marriages.

(4) Between 2010 and 2020, another 20 states adopt same-sex marriage, most through legislation, but some by court decision.  Sometime late in this period, the federal government by legislation adopts the rule that for the purpose of tax law, employee benefits, etc., it will recognize duly entered same-sex marriages.  The U.S. Supreme Court does not enter the frey on gay marriage, but, in other contexts, hands down a series of decisions strengthening constitutional protections against discrimination based on sexual orientation.

(5) By 2020, 75% of Americans believe that same-sex marriages should be recognized.  Proponents of same-sex marriage begin a litigation campaign to establish that the federal constitutional right to marry extends to same-sex marriages.  In the face of evolving opinion at home, national pressure and the threat of litigation, another dozen states permit same-sex marriage (most be legislation, a few by court decision), bringing the total to 38. 

(6) After five years of posturing, conflicting lower court decisions, and false starts, the Supreme Court in 2025 holds that the Constitution prohibits states from limiting marriage to opposite-sex couples, invalidating the remaining 12 state laws.