I talked to Denver Post reporters Kirk Mitchell and Jordan Steffen for this story on the Supreme Court’s grant in the Sixth Circuit marriage equality case. The story has a Colorado angle and also predicts what’s next for LBGT rights.
One comment about this otherwise very good story. I definitely didn’t use the phrase “gay marriage.” I would have said “same-sex marriage” or “marriage equality.” And I never talk about “gay rights” (depending on context, I probably would have said LGBT rights) or “gays” (I might have said “gay and lesbian people,” or “LGBT people,” or people who are LGBT”). As others have explained, it sounds a little archaic to talk about “gay marriage” and “gay rights.”
My coauthored essay with my University of Denver colleague Ian Farrell, “Gender Diversity and Same Sex Marriage,” is just out in the Columbia Law Review Sidebar! Particularly given the recent Sixth Circuit same-sex marriage decision, I’m happy to have our thoughts on one aspect of the same-sex marriage debate out in final form. The editors at Columbia were wonderful to work with and we were impressed with the speedy Sidebar publishing timeline — less than three months from acceptance to publication.
My new Huffington Post column on the Supreme Court’s decision not to hear five same-sex marriage cases is up. I explain why Justice Ginsburg is wrong, and there is a “need to rush” to reach full marriage equality in all fifty states.
From my piece:
When the Supreme Court stayed the decision striking down the ban on same-sex marriage in Utah, over 1300 same-sex couples had already married in Utah. These already-married couples litigated to have their rights recognized, and Judge Dale Kimball held that those rights should receive recognition. “Legal uncertainties and lost rights cause harm each day,” he wrote.
It’s also worth thinking about what might happen if a Republican presidential candidate wins in 2016. I am not sure that those who think there is “no rush” now will still agree if that comes to pass.
Not that this is the best or only reason to support marriage equality, but it’s worth noting that legalizing same-sex marriage has substantial economic benefits. UCLA’s Williams Institute has this series of state-by state reports.
For example, over three years, legalizing same sex marriage would add $182.2M to Florida’s economy, $70.8M to Ohio’s economy, $181.6M to Texas’ economy, $103M to Illinois’ economy, and $53.2M to Michigan’s economy. This would result from “wedding arrangements and tourism by resident same-sex couples and their guests.”
The researchers project other specific benefits as well. In Florida, for example, the spending would result in $12.1M in state and local sales tax revenue, as well as up to 2,626 new full- and part-time jobs in the state.
Obviously rights shouldn’t be determined by whether they’re lucrative. Same-sex marriage should be legal even if it were economically costly. But the fact that legalizing same-sex marriage actually generates revenue makes governmental opposition to it even less defensible, and state arguments that decisions striking down same-sex marriage bans cause “irreparable harm” even more feeble.
Say that a state incurs administrative costs in performing same-sex marriages after the invalidation of a same-sex marriage ban when it’s uncertain whether the Supreme Court will eventually hold such bans permissible. In many instances those costs could be outweighed by other economic benefits, such as tax revenue.
I am delighted to share a short essay criticizing the “gender diversity” argument (or do I mean “argument”?) against same-sex marriage that I coauthored with my fantastic University of Denver colleague Ian Farrell. You can download the whole essay here, or for those short on time, here’s the abstract:
Opponents of same-sex marriage have recently adopted a curious new argument. The argument goes something like this. The Supreme Court has held that diversity is a compelling state interest in institutions of higher education. Opposite-sex marriage includes gender diversity, while same-sex marriage does not. Therefore, states may allow same-sex marriage while banning opposite-sex marriage—even if the ban triggers heightened scrutiny under equal protection or due process—because opposite-sex marriage furthers gender diversity, while same-sex marriage does not.
The gender diversity argument against same-sex marriage has made its way into a number of briefs during the recent increase in challenges to same-sex marriage bans. For example, it appeared in multiple amicus briefs in United States v. Windsor, as well as in various filings in challenges to Utah’s same-sex marriage ban in the Tenth Circuit and Kentucky’s same-sex marriage ban in the Sixth Circuit.
Despite this newfound popularity, the gender diversity argument fails for a number of reasons. It erroneously conflates sex and gender, impermissibly relies on sex and gender stereotyping, lacks credible empirical support, draws untenable analogies, runs afoul of well-established doctrine, and, taken to its logical conclusion, leads to a inexorably to a number of consequences that are either universally undesirable or that we are fairly certain its proponents do not support. In short, we think the argument wholly unsuccessful, and urge courts not to entertain it.
On a personal note, as someone who grew up here, I could never have dreamed that we would see marriage equality in Colorado barely fifteen years after I graduated from high school. Indeed, I couldn’t have imagined it three years ago. It’s amazing how much can change in such a short time.
To get some of the background on the most recent developments for marriage equality in Colorado, check out my long-form discussion on Fox News’ “Colorado Politics from the Source” with host Eli Stokols and Colorado State Senator Jessie Ulibarri (who recently married his partner). Below are a few photos from the taping.
Yesterday the Tenth Circuit released its opinion in Kitchen v. Herbert, which considered the constitutionality of Utah’s same-sex marriage ban. In an opinion by Judge Carlos Lucero, the court invalidated the ban, holding that marriage is a fundamental right and cannot be withheld on the basis of sex. In doing so, the Tenth Circuit became the first federal appellate court to invalidate a state same-sex marriage ban.
The 65-page majority opinion and 21-page dissent each offer fertile ground for analysis. Ilya Somin and Ruthann Robson, among others, have useful provided commentary on the substantive aspects of the decision. But the question that many people are asking is simply: what’s next? Here, I answer some common questions and consider a few of the many ways the litigation could progress. Continue reading →