March 28, 2013
Two cases regarding gay marriage, Hollingsworth v. Perry (challenging California’s Proposition 8) and United States v. Windsor (challenging the Defense of Marriage Act) are being argued this week in front of the Supreme Court. An exhibit documenting the involvement of HLS students, faculty and alumni in the long road to marriage equality is now on display in the Caspersen Room in the Harvard Law School Library. The exhibit includes Harvard Law Grad Evan Wolfson’s 3L paper on same-sex marriage, written in 1983, as well as briefs and other exhibits from HLS Professors Elizabeth Bartholet ‘65, Lawrence Lessig, Frank Michelman ‘60, William Rubenstein ‘86, Carol Steiker ‘86 and Laurence Tribe, ‘66; Lecturers on Law Kevin Russell and Benjamin Heineman Jr., as well as Associate Professor at Loyola Law School Douglas NeJaime ‘03, many of whom have advocated before the courts on behalf of LGBT rights.
Below is roundup of some of the Harvard Law School faculty and alumni who have played or are now playing central roles in the gay marriage cases before the Court.
In 1983, Evan Wolfson ’83 authored a prescient third year paper titled “Samesex Marriage and Morality: The Human Rights Vision of the Constitution.” Thirty years later Wolfson, who founded and is president of Freedom to Marry, is being described in the press as “The Lawyer And Writer Who Made Marriage Equality Happen.”
BuzzFeed, March 24, 2013
Most Americans have never heard of Mary Bonauto. But inside the tightknit world of gay legal advocacy, Ms. Bonauto is a quiet celebrity — a lawyer and mother of twins who some say is almost single-handedly responsible for the same-sex marriage cases now pending before the Supreme Court.
New York Times, March 27, 2013
Today nine states have legalized same-sex marriage, with Massachusetts leading the way with the 2003 Goodridge v. Department of Public Health decision, written by former Chief Justice of the Supreme Judicial Court of Massachusetts Margaret Marshall, who is now on the HLS faculty as Senior Research Fellow and Lecturer on Law.
Paul Clement ‘92, a former United States solicitor general, was hired by the House of Representatives’ Bipartisan Legal Advisory Group, to defend the U.S. House of Representatives Republicans in litigation over the Defense of Marriage Act. He has argued 65 cases before the United States Supreme Court.
Harvard Law Bulletin, Winter 2012
Harvard Law School Professor Vicki Jackson, a leading expert on U.S. constitutional law, comparative constitutional law and federal courts, was been appointed by the court to argue that the Bipartisan Legal Advisory Group has no standing to argue before the Supreme Court, and therefore the court has no jurisdiction in the case.
Harvard Law School Professor Michael Klarman’s scholarship has focused on the effect that court rulings have on social reform movements. He argues that when courts get ahead of public opinion, political backlash often follows. That’s what he found in an earlier book he wrote on race and the U.S. Supreme Court, and it is a phenomenon he has also observed in cases involving the death penalty and abortion. In his new book, “From the Closet to the Altar: Courts, Backlash, and the Struggle for Same-Sex Marriage” (Oxford), the HLS professor explores whether the same effect has taken place when it comes to same-sex marriage litigation.
Harvard Magazine, March/April 2013
After the U.S. Supreme Court heard the oral arguments for two landmark same-sex marriage cases this week, Harvard Law School professors predicted that the justices would not uphold the Defense of Marriage Act and were unlikely to make a sweeping decision concerning Proposition 8.
Harvard Crimson, March 29, 2013
While the Supreme Court deliberates, other members of the Harvard Law School community continue to theorize, advocate and shape the freedom to marry both here in the United States and overseas.
An op-ed by Cass Sunstein: Judges and lawyers think in terms of analogies. For this week’s Supreme Court arguments involving same-sex marriage, the available analogies include some of the most famous rulings in the court’s history.
Many people are hoping for what they would see as a heroic decision, requiring states to recognize same-sex marriages. In their view, the court has an opportunity to issue this generation’s Brown v. Board of Education.
Michael Klarman talked about the constitutional issues related to the two same-sex marriage cases being argued before the United States Supreme Court on March 26 and 26. Professor Klarman explained some of the Court’s possible rulings in the cases, and some of the arguments of the various concerned parties, and he responded to telephone calls and electronic communications.
See also: The Supreme Court Is Unlikely to Reinstate Prop. 8 (from BostonMagazine.com)
The U.S. Supreme Court takes up its second gay-marriage case in two days, one that gains new significance after the justices signaled reluctance to decide whether same-sex couples have a constitutional right to wed. … “There was a genuine concern about going too far, too fast,” said Charles Fried, a Harvard Law School professor who was President Ronald Reagan’s solicitor general. “I sensed a genuine regret that the court had this case before it now.”
An opinion piece by HLS Visiting Professor Robert P. George, Yale Law student Sherif Girgis and the Heritage Foundation’s Ryan T. Anderson: The attractive civil rights rhetoric of "marriage equality" masks a profound error about what marriage is. Of course, if marriage were simply about recognizing bonds of affection or romance, then two men or two women could form a marriage just as a man and woman can. But so could three or more in the increasingly common phenomenon of group ("polyamorous") partnerships. In that case, to recognize opposite-sex unions but not same-sex or polyamorous ones would be unfair -- a denial of equality.
An op-ed by Noah Feldman: Conventional wisdom formed quickly this week after oral arguments in the two same-sex marriage cases before the U.S. Supreme Court. The gist is that the court would duck the fundamental question of whether the Constitution guarantees everyone the right to marry -- implied in the California Proposition 8 case -- and strike down the Federal Defense of Marriage Act on the limited ground that it interferes with states’ rights.
Don’t be too sure. It’s not just that oral arguments can be deceiving. (Remember the broccoli obsession in the Obamacare arguments? Almost no one thought Chief Justice John Roberts would provide the deciding vote to uphold the law.)