“It looks like that we aren’t going to get a decision in either case based on the equality issue,” said Professor John G. Culhane
as he joined Professor Alan Garfield
at a Pizza with the Professors Event on Monday, April 1st to discuss two cases recently argued before the U.S. Supreme Court.
Garfield, who spoke first, looked at the Proposition 8 case, Hollingsworth v. Perry. The court heard oral arguments in the case on Tuesday, March 26th, and Professor Garfield used audio clips from the oral arguments throughout his presentation in order to analyze how the justices might be thinking about the case. He opened by noting that it might be possible to approach the case form a substantive due process position by making the argument that people had a fundamental right to marry who they want, but he quickly indicated that the questions being asked during the oral arguments suggested that the justices were only looking at equal protection questions.
Garfield also addressed some of the more interesting exchanges to come out of the arguments, including Justice Kagan’s contention that if marriage is about procreation, then there is no reason to allow people over the age of 55 to get married. Culhane also weighed in on the case, suggesting that he thinks the most likely outcome is that the court dismisses the case on a procedural matter by ruling that the defenders of Proposition 8 do not have proper standing. He recently addressed that possibility in an article he wrote for Slate
Culhane then spoke briefly about United States v. Windsor, the case that challenges the 1996 Defense of Marriage Act (DOMA) as unconstitutional for refusing to recognize same-sex marriages that have been recognized by states. According to Culhane, the tenor of the questions during oral arguments seemed to indicate the court’s decision might strike down DOMA as infringing on the right of individual states to decide what they recognize as marriage.
Contrasting the two cases, Culhane said, “The DOMA case is different – that’s really a targeted case at a particular statute that is difficult to defend,” while suggesting that the Proposition 8 case was perhaps more abstract and thus more difficult to analyze.
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