Ninth Circuit Decision Suggesting That Opposite-Sex-Only Marriage Rules Are Unconstitutional?

[T]he district court correctly recognized that barring the state of Arizona from discriminating against same-sex couples in its distribution of employee health benefits does not constitute the recognition of a new constitutional right to such benefits. Rather, it is consistent with long standing equal protection jurisprudence holding that "some objectives, such as 'a bare ... desire to harm a poli...

Volokh • Sep 8, 2011

DOMA and Duty

By 2003, not a single major national law firm supported the Texas sodomy law before the Supreme Court, yet there were constitutionally defensible arguments to be made even in the case of that very nasty law. This was not an abandonment by those firms or prominent lawyers of a legal duty to defend an unpopular cause or client. One difference between the K&S case and Lawrence is that K&S actually u...

Volokh • Apr 30, 2011

[UPDATE: Apparently False] Rumor: Judge Walker States That the Prop. 8 Campaign Documents Discovery Dispute Will Go En Banc at the Ninth Circuit

The parties are requested to file simultaneous briefs setting forth their respective positions on whether this case should be reheard en banc, including whether rehearing en banc is warranted in light of Mohawk Industries, Inc. v. Carpenter, 558 U.S. --, No. 08-678 (Dec. 8, 2009)....

Volokh • Dec 17, 2009

Fierce advocacy

My point is only to note how much continuity there is in this instance, as in others, between the Bush and Obama administrations. In short, there's little in this brief that could not have been endorsed by the Bush DOJ. A couple of rhetorical flourishes here and there might have been different. Perhaps a turn of phrase. But, minus some references to procreation and slippery slopes, the substance i...

Volokh • Jun 14, 2009

Gay couples' marriages and the "bandwagon effect"

One major problem with the bandwagon, however, is that it will inevitably hit the stone wall of 30 or more state constitutional amendments. Unless the Supreme Court intervenes, overcoming those amendments will require not just majorities, but super-majorities of popular opinion. Many will have to be voted on by the people at the ballot box, where so far the bandwagon has been in a rut....

Volokh • May 2, 2009

Prop 8 chilling SSM efforts elsewhere

The passage of Prop 8 in California is hurting the prospects for gay marriage elsewhere....

Volokh • Dec 1, 2008

Not so fast: Is Prop 8 an "amendment" or a "revision"?

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Volokh • Nov 7, 2008