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MLaw profs tackle same-sex marriage cases

MLaw Profs Tackle Same-Sex Marriage Cases

By John Masson
March 21, 2013

With Supreme Court arguments scheduled for next week in two same-sex marriage cases, Michigan Law students packed Honigman Auditorium Wednesday to hear how two of their professors see the cases.

The two cases—Hollingsworth v. Perry, regarding California's Proposition 8, and United States v. Windsor, regarding the 1996 Defense of Marriage Act—are scheduled for argument March 26 and 27, respectively. The panel was sponsored by the Outlaws and featured professors Julian Davis Mortenson and Sam Bagenstos. It was introduced by Dean Evan Caminker.

"We're seeing a huge sea change both in how popular culture approaches this issue and how the law approaches this issue," Dean Caminker told the crowd during the introduction.

Prof. Mortenson, a constitutional and transnational law expert, tackled the California case first, highlighting the convoluted background that brought it to the high court.

The California Supreme Court overturned a state ban on same sex marriage in 2008 on the grounds that the ban violated the state constitution's equal protection guarantee. Later that year California voters passed Proposition 8, specifically amending the state constitution to ban same-sex marriages. But a federal court ruled that California's constitutional amendment violated the U.S. Constitution, because it took away a right that same-sex couples had held, briefly, under California law.

"In this case, a right has been taken away from same sex couples that they once had," prior to the passage of Proposition 8, Prof. Mortenson said.

The DOMA case has a similarly convoluted background, Prof. Bagenstos said. A former deputy assistant attorney general for civil rights, Prof. Bagenstos specializes in studying civil rights law, public law, and litigation.

So what are some of the problems with the DOMA case?

For starters, Prof. Bagenstos said, "countless federal laws turn on whether or not you're married."

Like the laws covering estate taxes, which gave rise to the case in the first place. Edith Windsor's same-sex spouse died and—even though Windsor's state of residence, New York, recognized her marriage as valid—the federal Internal Revenue Service demanded Windsor pay more than $360,000 in estate taxes because DOMA recognizes only heterosexual marriages. Windsor sued in federal court, arguing that the IRS violated the equal protection guarantees of the U.S. Constitution.

The Windsor case became even more complicated when the executive branch of the federal government, which normally defends the government against such suits, declined to defend DOMA. That demurral led the Bipartisan Legal Advisory Group of the House of Representatives to take up the effort instead, Prof. Bagenstos said.

Something similar happened in California when state officials declared that they wouldn't defend Proposition 8, Prof. Mortenson added.

A lively question-and-answer session followed the professors' presentations, with question number one, of course, asking professors Bagenstos and Mortenson what they thought the outcome might look like. Neither was eager to hazard a prediction. It was left to Prof. Bagenstos to sum up generations of high-court lore:

"You never know what's going to happen when you get to the Supreme Court."

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