On the Slippery Slope to Gay Marital Bliss

On Friday, November 6, Andrew Koppelman, the John Paul Stevens Professor of Law at Northwestern, visited William & Mary School of Law and gave a talk on gay marriage. His speech was presented by the Institute of Bill of Rights Law and the American Constitution Society.

Koppelman stated that the gay marriage movement is one of the mot successful such movements in U.S. history; ten years ago, no gays could marry; in 1999, Vermont was the first state to allow it, and at present there are nine states, representing almost 25% of the United States by population, that give same-sex couple all the rights of married couples (though only four states actually use the term ‘marriage’). There is a clear trend towards continued acceptance of gay marriage: 58% of 18-34 year olds support it, whereas only 24% of those over 65 do.

Much of Koppelman’s talk focused on presenting a response to the work of the so-called  ‘new natural law’ theorists, such as Robert George, John Finnis, and Patrick Lee. These thinkers have attempted to sketch out what makes the relationships of heterosexual couples intrinsically more valuable than those of homosexuals, even when the former couple is unable to conceive a child.

According to Koppelman, one of the approaches taken by these theorists includes the argument that heterosexual sex involves some ‘two in one-ness,’ or a biological unity, that gay sex doesn’t. According to this argument, each human is an incomplete, potential part of a mated pair that becomes one during the sex act.


Published in: on November 9, 2009 at 11:17 pm Comments Off on On the Slippery Slope to Gay Marital Bliss

One Step Forward, Two Steps Back

On May 15, 2008, the California Supreme Court struck down a California voter referendum banning same-sex marriage. It was a historic decision, and made California the second state to legalize gay marriage, after Massachusetts legalized same-sex marriage in 2004. The decision came after several gay couples filed a lawsuit claiming discrimination, and in 4-3 ruling, the same-sex marriage ban was overturned. Supporters of gay marriage were overjoyed, and since the ruling thousands of gay couples have been married in California (about 18,000 same-sex marriages). Of course, there were also those who vehemently opposed the ruling, and legislators quickly drafted a ballot initiative known as Proposition 8, which would ban same-sex marriage and put current same-sex marriage licenses in legal limbo.

On November 4, 2008, the same election day in which this country elected our first African American President, California voters effectively banned same-sex marriage once again. Proposition 8 passed with 52% of the vote. This vote came as a major blow to gay rights supporters. How is it that voters could once again enact a ban that the California Supreme Court had ruled was unconstitutional? Already, several organizations, such as the American Civil Liberties Union and Lambda Legal have filed suit, claiming that same-sex marriage cannot be outlawed with a ballot initiative. Protests against the passing of Proposition 8 have also erupted around the country, including in Boston (where gay marriage is still legal), Washington D.C., and Chicago, along with protests in San Francisco and Los Angeles.

The major legal issue behind Proposition 8 is its legality. Is it unconstitutional? It seems to me that if the state Supreme Court of California thought it was unconstitutional and violated against fundamental civil liberties, then it should still be considered unconstitutional. For this reason, California’s Attorney General Jerry Brown, along with supporters of Proposition 8, are urging the state Supreme Court to review the cases challenging Proposition 8’s legality as soon as possible. Although he wasn’t a supporter of Proposition 8 before it was passed, Attorney General Brown said he would fight to uphold the ban as “an expression of public sentiment” on gay marriage. But maybe it shouldn’t matter what the “public sentiment” is; if a statute was found to be unconstitutional because it violated fundamental civil rights, how does public sentiment outweigh that? Public sentiment used to support all kinds of violations of fundamental civil liberties, such as denying the right for interracial couples to marry as late as the 1960s (see this case, Loving v. Virginia, 388 U.S. 1 (1967)). While the Attorney General said he would work to uphold the measure, he did say that he thought the marriages before the ban would remain valid. It seems unfair, however, to deny that same privilege to same-sex couples who planned on getting married in the future.


Published in: on November 18, 2008 at 11:45 pm Comments Off on One Step Forward, Two Steps Back
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