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Professor Landau Discussed Prop 8 Oral Arguments in The Stranger

Submitted by on April 2 – 2013No Comment

Associate Professor Joseph Landau highlighted noteworthy moments from the oral arguments in Hollingsworth v. Perry at the Supreme Court last week for The Stranger. Landau wrote that the Justices seemed averse to any middle-ground solutions, including the “one state solution” that focuses specifically on Proposition 8’s effect in California, and also the “nine state solution” that would invalidate same-sex marriage bans in California and eight other states.

Landau also pointed to Justice Kennedy’s question as to whether the prohibition on same-sex marriage could be treated as a gender-based classification.

Some LGBT advocates find the argument unsatisfying because it downplays the extent to which prohibitions on same-sex marriage are really about sexual orientation discrimination, yet the argument could have appeal because it builds on a body of Supreme Court cases that have held gender-based classifications to exacting scrutiny.

Landau noted that the Justices spent very little time asking whether the Court should apply that same heightened scrutiny to sexual-orientation-based classifications, despite the fact that both plaintiff couples and the federal government have advocated for this.

He also referred to Kennedy’s discussion about the immediate legal injury that could be suffered by the 40,000 children of same-sex parents in California if those parents are not given full recognition and status as married couples.

Indeed, despite all of the arguments made by Prop. 8 supporters that respecting the rights of same-sex couples to marry will somehow “redefine” the institution, or dilute it of its function as providing a mechanism for the stability of families with children, there are thousands of counter-examples of happy, healthy, and loving families headed by two moms or two dads.

Landau ended by highlighting the heated discussion between Justice Scalia and Ted Olson about when it became “unconstitutional to exclude homosexual couples from marriage.”

Read Landau’s entire piece at The Stranger