Three legal scholars marked Constitution Day Oct. 10 at IIT Chicago-Kent College of Law with a panel concerning the legal implications surrounding the Supreme Court's decisions overturning Proposition 8 and parts of the Defense of Marriage Act.
The panel built their talks around a question Justice Antonin Scalia asked during oral arguments in the Prop 8 case: "If gay marriage is unconstitutional, when did it become unconstitutional?"
Ilya Somin, professor of Law at George Mason School of Law in Arlington, Va., focused
at the the 14th amendment and how it applied to discrimination on the basis of gender, which is a key issue at the center of same-sex marriage litigation.
"At the time the amendment was written in 1868, it's certainly true that people accepted forms of sex discrimination that we would today say are wrong or unconstitutional," said Somin.
Indeed, some litigation around sex discrimination had taken place even by the 1870's, he added. Those proceedings generally found that the discrimination was acceptable because of cultural norms about women's roles and perceived abilities, and "over time those viewpoints changed as accepted knowledge about women's capabilities came to light."
But Somin acknowledged that trying to imagine what the amendments' authors would have reacted to same-sex marriage would be impossible.
"The dominant view was that same-sex relations were a sort of temptation that heterosexual people would fall into as a kind of sin," he said. "…People did not think of same-sex orientation as an orientation, much less recognize it as a category the 14th amendment might have something to say about."
Carolyn Shapiro, Associate Professor of Law at Chicago-Kent, discussed looking at the Constitution as a "living document," a process she said that is often derided by legal scholars.
"They see it as an admission that judges can make stuff up," Shapiro said. "Historically, though, that hasn't happened."
She said that looking for a "right answer" is often not the right approach when applying the constitution to legal questions, as it was a broadly written document. "Judges have to apply their own perspectives," she added.
"We don't live in a world where each case is decided in a vaccum—it's not," according to Shapiro. "…Judges can't move too far from the last precedent without having a very good reason—if you look through Supreme Court briefs, there is an awful lot about case law."
Prof. Katherine Baker, Professor of Law at Chicago-Kent, focuses much of her work on family law issues. She said that she had long perceived marriage as more than a simple collection of benefits. "If that is the case, than civil unions do the trick."
Several years ago, she wrote an article discussing the emotional and psychological components of marriage that many people report.
"Nowhere did I say marriage should be restricted to a man and a woman," said Baker. "But I got this response from anti-same-sex marriage folks—and they loved this article, which made me a little nervous. To this day, I'm on the mailing lists of these people."
She entered into a correspondence with a man who was against same-sex marriage. "He was using this term, 'genderless marriage,' as an oxymoron, and I was using it—with a wedding ring on my finger—as an ideal," Baker said.
The correspondence led her to the conclusion that many people valorize opposite sex-marriage because of a commitment to gender roles. The male archetype is a slovenly and uncouth man who will be softened by a woman. The female archetype is a woman who can be cared emotionally and financially for as she does a tremendous amount of unpaid labor.
"The typical liberal response is that the model is outdated and it violates legal norms of gender equality," Baker said. …"But marriage today is ( still ) an incredible gender factory."
"When I am home on the weekend, wearing jeans and a t-shirt, I have been referred to as 'a man' many times," she added. "I don't care, but the people calling me that are mad as hell."
