Prof. NeJaime analyzes Prop. 8 Supreme Court oral arguments for L.A. Times, San Diego Union-Tribune
Professor Doug NeJaime is annotating the transcripts of the Supreme Court oral arguments in Hollingsworth v. Perry, the Prop. 8 same-sex marriage case for the Los Angeles Times.
Regarding gender-based classifications, NeJaime wrote:
It is significant that Justice Kennedy is grappling with the sex discrimination argument. The parties have not focused on this issue, and most courts that have considered whether same-sex marriage bans discriminate based on sex have rejected the argument. But the argument is compelling, and Justice Kennedy may be open to it. Laws that bar same-sex couples from marriage facially discriminate based on sex (a man can marry a woman but not a man) and also embed a sex-differentiated model of marriage that views men and women as filling distinct and complementary roles based merely on their sex.
See the complete feature, Gay marriage: U.S. Supreme Court arguments on Prop. 8.
NeJaime also provided annotation of the Supreme Court oral arguments on the Defense of Marriage Act (DOMA) which bans federal benefits for legally married gay couples, for the Los Angeles Times.
Remarking marriage's federal rights and benefits, he commented:
Like Justice Ginsburg, Justice Kennedy also seems bothered that by denying federal recognition to valid state law marriages, DOMA heavily regulates marriage and impacts married same-sex couples' daily family lives in a very substantial way.
Read his complete annotation in the article, Gay marriage: U.S. Supreme Court arguments on DOMA.
NeJaime provided his assessment on both arguments for the San Diego Union-Tribune. He wrote:
Yesterday in Perry it became clear that even the Justices sympathetic to the plaintiffs’ case may want to avoid the merits or at a minimum rule in a very narrow way. Indeed, Justice Kennedy even suggested that the Court may dismiss the case as improperly granted. These less substantive resolutions would effectively bring same-sex marriage to California, but they would avoid any ruling that directly impacts marriage bans across the country. If the Court were to reach the merits, a California-specific resolution seems most likely, since the Justices seemed skeptical of both Ted Olson’s case for marriage equality on a nationwide level and the Solicitor General’s argument that marriage should be required in the set of states offering domestic partnerships or civil unions.
In the Windsor argument today, the Justices seemed more bothered by the law on substantive grounds. But their distinct focus on the federalism problems – the unique intervention into marriage by the federal government – suggests that they may strike down DOMA without getting to the bigger question about equal protection based on sexual orientation.