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Presidential Power & Gay Marriage

This is the first post in a long time. I hope to be more diligent in the future and post items related to my areas of expertise: constitutional law and legal ethics.

Presidential Power: President Obama will take executive action to defer deportation for as many as 4 million undocumented immigrants.. His action falls squarely within a tradition of executive discretion over enforcement. Even the Federalist Society agrees.

Gay Marriage: Marriage equality will get two hearings in Arkansas Courts on Thursday. At 9:00 a.m., the Arkansas Supreme Court will hear oral arguments in Smith v Wright which is an appeal from a lower court’s ruling striking down Arkansas’ Defense of Marriage Amendment. You can listen to the oral argument here. At 1:00 p.m., the action shifts to the Federal District Court for a hearing in a federal lawsuit challenging Arkansas’s DOMA.

Until last week’s 6th Circuit decision, I was relatively sure that the Arkansas Supreme Court would join the march toward marriage equality. But the 6th Circuit’s opinion gives cover to judges who may have been uncomfortable striking down the law but felt that the law was moving inevitably in that direction. Now, I am not so sure. On the other hand, Judge Sutton reiterated that marriage was an issue for the states and that federal courts should stay out of the issue. The problem is that the Arkansas Supreme Court must use the United States Constitution because the case challenges a voter-approved amendment to the Arkansas Constitution.

The knottiest problem will arise if the two courts reach opposite decisions, particularly if the Arkansas Supreme Court upholds DOMA and the Federal court strikes it down. I have not researched the issue closely but my intuition tells me that the state court’s ruling would control over a federal district court’s ruling. The 6th Circuit notwithstanding, the logic of the constitutional challenge is inexorable: if a state cannot outlaw a person’s sexual orientation (Romer v Evans) and it cannot demean its natural expression (Lawrence v Texas), then it cannot limit formal recognition of that relationship by precluding gays and lesbians from the benefits the state confers on married couples. The state’s only legitimate interest is to know who is married so it can distribute the benefits it accords marriage. Anything else – regulating procreation, preserving tradition, protecting children – is moral disapproval by another name and is simply illegitimate.

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November 19, 2014   Comments Off