Recently in Same-Sex Marriage Category

Proposition 8 and the Metaphysics of Marriage
February 24, 2012
JURIST Guest Columnist Robert Rodes of the University of Notre Dame Law School says that while some legal recognition of same-sex relationships has gained widespread support, creating same-sex marriage rights must be left to the democratic processes...Perry v. Brown is surely one of the most bizarre decisions that have emerged from the continuing debate over same-sex marriage. It strikes down Proposition 8, the California constitutional amendment defining marriage as an association between one man and one woman. The court did not strike down the amendment because it took away substantive rights from homosexuals, but evidently because it did not do so. California's domestic partnership laws explicitly give domestic partners the same rights as spouses in each other's affairs. Accordingly, the....  [more]

Revisiting Standing: Proposition 8 in the Ninth Circuit
February 16, 2012
JURIST Columnist Vikram Amar, writing the inaugural edition of a column authored by the faculty of the University of California, Davis School of Law, says that the Ninth Circuit could have ruled that the initiative proponents lacked standing to defend Proposition 8, which may have been a more judicially sound method to invalidate the amendment as opposed to basing the decision on Romer v. Evans...Detractors likely see last week's ruling striking down California's ban on same-sex marriage, Proposition 8, as a result-oriented decision calculated to reinstate same-sex marriage in the Golden State and at the same time discourage Supreme Court review on account of the California-specific reasoning underlying the opinion. It is worth noting that Judge Reinhardt, the opinion's author,....  [more]

Defining the Parental Rights of Same-Sex Spouses
January 14, 2012
JURIST Guest Columnist Mary Ziegler of Saint Louis University School of Law says that while a recent Iowa court decision may be a victory for the rights of same-sex parents, the arguments made in the public debate surrounding the case demonstrate a break from the goals of the early gay rights movement and could be used to justify discrimination against other forms of non-traditional families...JURIST recently reported on the latest round in the litigation of same-sex marriage in Iowa. The plaintiffs in Gartner v. Newton, a married lesbian couple, had demanded the right to have both of their names automatically listed on their child's birth certificate. The Iowa Department of Public Health refused, requiring the spouse who was not biologically....  [more]

Montana Case Shows Split in Gay Rights Movement
December 14, 2011
JURIST Guest Columnist Shannon Gilreath of Wake Forest University School of Law says that the current litigation strategy seeking marriage rights for same-sex couples only tinkers around the edges of heteronormative institutions when it should be seeking separate institutions that reject these gender role-dominated institutions...JURIST recently reported that the American Civil Liberties Union (ACLU) was appealing a decision by a Montana district judge to dismiss a lawsuit by six same-sex couples seeking partnership benefits. What I find most interesting is that the plaintiffs in Donaldson and Guggenheim v. Montana are not seeking marriage, but rather partnership benefits that will entitle them to make the same sorts of family decisions about the medical care of partners, finances and inheritance that heterosexual....  [more]

Left Wing Federalism Fells DOMA
July 21, 2010
JURIST Guest Columnist Bruce Miller of Western New England College School of Law says that the decision of a moderately liberal federal judge that the application of the Defense of Marriage Act in Massachusetts is unconstitutional on federalism grounds is unsurprising... On July 8, Judge Joseph Tauro of the U. S. District Court in Boston held the federal Defense of Marriage Act (DOMA), which defines marriage for purposes of federal law as the union of one man and one woman, to be beyond Congress' constitutional authority. If it stands, his ruling will make Massachusetts same sex couples eligible for many federal programs, including Medicare, Medicaid and veterans' benefits. In invalidating DOMA, Judge Tauro did no more than follow a constitutional....  [more]

Gay Rights: The Ups and Downs of Going Mainstream
July 14, 2009
JURIST Guest Columnist Douglas NeJaime of Loyola Law School Los Angeles says that while the mainstreaming of gay rights is a good thing, movement lawyers who have traditionally championed the cause may have to get used to being displaced by mainstream, non-movement lawyers over whom they have less and less control.... A significant shift has taken place in gay rights litigation. Non-movement lawyers have become leading advocates for the cause. This shift is a positive step for the gay rights movement, but it also presents new risks for a movement that has been carefully orchestrated by a small group of legal organizations.Last year, I commented in a JURIST column that we were witnessing the mainstreaming of gay rights in the....  [more]

Scare Tactics: Children in the Battle over Same-Sex Marriage in California
October 28, 2008
JURIST Guest Columnist Douglas NeJaime of UCLA School of Law says that despite what some of its proponents are claiming or implying in the run-up to November 4, California Proposition 8 does not involve children or curriculum - it simply involves the fundamental right of lesbians and gay men to marry... Will the failure of California's Proposition 8 require public schools to teach young children pro-gay fairy tales?Prop 8 seeks to amend the California constitution by eliminating the right of same-sex couples to marry, but if you didn't know better, you'd think that the ballot measure is about school curriculum. The Yes on Prop 8 campaign's most compelling ads feature children coming home from school with stories of a prince....  [more]

Same-Sex Marriage/Same-Sex Family
May 27, 2008
JURIST Guest Columnist Douglas NeJaime of UCLA School of Law says that the California same-sex marriage ruling is not merely about the right to marry the person one loves, but it is also about accommodating the demographic reality of lesbians and gay men who commit to one another, raise children, and form families... The California Supreme Court recently became the second state high court to extend marriage to same-sex couples. Although the court reached the same result as the Massachusetts Supreme Judicial Court, it did so based on radically different reasoning. While the Massachusetts court conceptualized marriage in terms of self-fulfillment, the California court focused on the relationships formed through marriage, positioning marriage as about others.In its 2003 landmark decision,....  [more]

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