July 10, 2006
Same Sex Marriage Bans Upheld in Two States - Many Other Decisions Pending
Two state courts waited until we took a break from blogging to issue decisions upholding their state same-sex marriage bans.
In a 4-2 decision, the New York Court of Appeals found that the state's century-old definition of marriage as a union between a man and a woman could have a rational basis, and that it was up to the State Legislature, not the courts, to decide whether it should be changed.
Hernandez v. Robles, 2006 N.Y. LEXIS 1836; 2006 NY Slip Op 5239 (July 6, 2006) Opinion on the web
The Georgia Supreme Court as well, in a unanimous reversal of a lower court decision, ruled that the state's 2004 ban against same-sex marriage was constitutional.
Perdue v. O'Kelley, 2006 Ga. LEXIS 465 (July 6, 2006) Opinion on the web
For a selection of debates and commentary on the decisions, see Andrew Sullivan's Time blog posting in which he comments: "I think the New York Court of Appeals decision will help, rather than hurt, the cause of marriage equality in the long run. Why? Because it will force the issue into legislatures, where it is best tackled, and where we will eventually win." Stanley Kurtz writing in the National Review about New York State Assemblywoman Barbara Lifton's proposal to eliminate marriage as a legal status in favor of “civil commitments” for all. Among law professor bloggers, Professor Ann Althouse's blog has a lively debate on the New York decision; Professor Dale Carpenter posts a series of analyses of the opinion in the Volokh Conspiracy blog and Professor Arthur S. Leonard criticizes the Georgia Supreme Court decision for it's thin reasoning in his blog.
In other states: the California Court of Appeals has scheduled hearings for its review of the law banning same-sex marriage. (Here is the lower court's opinion. See today's San Francisco Chronicle article on the case) Opinions are due from the courts of New Jersey (which heard arguments in February 2006) and Washington (arguments were in March 2005 - here is the lower court opinion). Suits are also pending in Connecticut, Iowa, Maryland, Nebraska, New Jersey, Oklahoma, and Washington. (See the LAMBDA Marriage Project site for briefs and lower court opinions from many of these cases).
For the status of same-sex marriage legislation and court challenges in the various states, see the summary provided by the Pew Research Center.
As we plan for our fall semester family law courses, my question is, with the wealth of resources available on this topic and the pace of challenge and change in the law, how are you teaching this issue?"
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