same-sex marriage

There's been an interesting debate going on the Volokh Conspiracy this week on whether there is an originalist case for a right to same-sex marriage (originalism being the theory of constitutional interpretation that the U.S. Constitution should be viewed through the lens of what the public at the time, or, alternatively, what Founding Fathers or the framers of later constitutional amendments, intended about the constitution). Orin Kerr argues there is no serious case under the theory of originalism for same-sex marriage. He notes that there have been originalist arguments that reason that the 14th Amendment recognizes the principles of freedom and equality, equal treatment in marriage choices, rejection of caste legislation or rejection of sex discrimination, and that same-sex marriage laws violate those principles. But Kerr says none of the theories seem to be based on "specific constitutional text as it was understood by the public at the time of its enactment."

U.S. District Judge Callie V.S. Granade issued an order clarifying her ruling that Alabama's bans on same-sex marriage violate the equal protection and due process protections in the 14th Amendment, the Washington Blade's Chris Johnson reports. The clarification came after the Alabama Probate Judges Association issued a non-binding order saying the decision only applies to the plaintiffs before Granade, and the judge's order implies that the ruling has universal effect in Alabama.

The Southern Poverty Law Center has filed an ethics complaint against Alabama Supreme Court Chief Justice Roy Moore. Moore, a conservative jurist who already was replaced once as chief justice because he refused to remove a monument depicting the 10 Commandments from a judicial building, stated in a letter that a federal judge's decision striking down Alabama's ban on same-sex marriage could lead to the legal recognition of polyamorous or incestuous marriages. Moore also said he will continue to recognize Alabama's ban. The SPLC said Moore's statement did not conform to the canons of judicial ethics.

On Friday, US District Judge Callie V.S. Granade ruled that Alabama's constitutional ban on gay marriage violated the due process and equal protection clauses of the federal Constitution's 14th Amendment, Christian Science Monitor's Jessica Mendoza reports.

Even though Kentucky bans same-sex marriage, Jefferson Family Court Judge Joseph O'Reilly granted a divorce to a same-sex couple married in Massachusetts, The Courier-Journal's Andrew Wolfson reports: "O'Reilly said that barring same-sex couples to divorce here violates the state constitutional guarantee that all people should be treated as equals."

SCOTUSBlog's Lyle Denniston reports that South Dakota's ban on same-sex marriage was struck down today. U.S. District Judge Karen E. Schreier applied the highest constitutional test--strict scrutiny--after finding that marriage is a fundamental right that must be open to gays and lesbians. The judge also rejected the argument that federal courts have no jurisdiction over domestic relations, Denniston further reports.

Shortly after the U.S. Court of Appeals of Fifth Circuit heard oral argument in a case that upheld Louisiana's ban on same-sex marriages, the U.S. Supreme Court has declined to take up that case, The Guardian's Amanda Holpuch reports. There are four other cases pending before the U.S. Supreme Court that went through the Sixth Cicuit, which is the only federal circuit court to uphold bans on same-sex marriage so far.

Same-sex marriage bans in Texas, Louisiana and Mississippi got a cool reception during oral arguments before the 5th Circuit yesterday, Bloomberg's Daniel Lawton and Andrew Harris reports. A Louisiana judge upheld that state's ban, while Texas and Mississippi judges rejected bans on same-sex marriage in their states. Having listened to a recording of the arguments involving Louisiana so far, the judges indeed were very skeptical of the government's arguments in favor of keeping that state's ban intact.

Vietnam has abolished its ban on same-sex marriage, Bloomberg's John Boudreau and Nguyen Dieu Tu Uyen reports: "The revised law, while not officially recognizing same-sex marriage, places the communist country at the forefront of countries in Asia becoming more accepting of gay people." The government won't recognize the marriages or provide legal protections like divorce or rules on splitting up assets upon death. Phil Robertson, deputy Asia director at Human Rights Watch, told Bloomberg no other country in Southeast Asia has taken as big a step toward accepting same-sex marriage as Vietnam.

This week is bringing a tremendous confluence of events regarding same-sex marriage, the Washington Post's Robert Barnes reports: the U.S. Supreme Court is slated to consider on Friday whether to take up the constitutionality of bans on same-sex marriage, same-sex marriages started in Florida today, and the U.S Court of Appeals for the Fifth Circuit will consider cases regarding the bans on same-sex marriage in Texas, Mississippi and Louisiana on Friday.