PUBLISHED:April 28, 2015

Duke Law faculty contribute to national dialogue on same-sex marriage

Duke Law faculty have offered their expertise on the legal issues underpinning the same-sex marriage debate in the form of scholarship, amicus briefs, and public commentary leading up to Tuesday’s Supreme Court oral arguments in Obergefell v. Hodges.

Professors Neil Siegel, Laurence Helfer, Ernest Young, Deborah DeMott, Walter Dellinger, and Gregg Strauss have authored articles, co-written friend-of-the-court briefs, and helped the media parse the legal issues involved in Obergefell as well as two same-sex marriage cases decided in the 2012-2013 term of the Court.

Same-sex marriage has been a scholarly focus for Siegel, the David W. Ichel Professor of Law and Professor of Political Science, who attended the oral argument in Obergefell

“Overall it was a very good argument,” Siegel said after the arguments ended. “I thought the justices were really dialed in and, with few exceptions, asked very good questions of both sides. In particular, I thought questions by Justices Ginsburg, Alito and Kagan included very astute observations. In terms of the process, I thought it was a smart, informed set of proceedings that the nation can really take pride in. I certainly did, as someone who takes pride in the court as an institution, and I don’t feel that way about every argument.”

Siegel said that the justices’ questions reinforced his belief that the court would likely overturn state bans on same-sex marriage.

“I was confident going in, and I remain confident coming out of it that the bans are going to fall by at least a vote of 5-4,” Siegel said. “Justice Kennedy said some things that could cause both sides to take heart. He talked about the traditional definition of marriage as opposite-sex couples having existed for millennia, which may give some people pause.

“But he didn’t seem to, and some of the other justices didn’t seem to, understand the states’ argument that somehow allowing same-sex marriage would lead heterosexuals to view the institution of marriage differently, that they would now see it as somehow tied to their gratification and not to raising children and keeping families together, given how many heterosexuals don’t have kids or don’t stay together and how many homosexuals do have kids and do stay together.

“He didn’t seem to be buying that basic argument. And once that’s off the table, most of what’s left is just moral disapproval of homosexuality, which is what I think is really going on here, and which the states can no longer argue because the court took that off the table in the Windsor decision."

A scholar of constitutional law, Siegel has written extensively on U.S. v. Windsor, the 2013 case in which the Supreme Court ruled a portion of the federal Defense of Marriage Act (DOMA) unconstitutional. In Federalism as a Way Station: Windsor as Exemplar of Doctrine in Motion, he predicted that the Court’s decision signaled its movement toward a legal acceptance of marriage equality. Siegel, the co-director of the Program in Public Law and director of the DC Summer Institute on Law and Policy, has also been an active public commenter as the issue of marriage equality has unfolded in the courts.

Helfer, the Harry R. Chadwick, Sr. Professor of Law and co-director of Duke’s Center for International and Comparative Law, co-authored an amicus brief with scholars of international and comparative law, urging the court to heed “an emerging global consensus among liberal democracies” by protecting same-sex marriages. In an interview about the brief, Helfer told the New York Times that the high court “should be guided by those nations, whatever their number, that invoke core U.S. constitutional principles of equality, liberty and due process to recognize same-sex marriages.”

Helfer also co-authored a 2012 amicus brief filed in Hollingsworth v. Perry.  The brief cited foreign and comparative law supporting the legality of same-sex marriage in support of an effort to repeal California’s Proposition 8, a ban on same-sex marriage.

Professor Ernest Young co-authored the only amicus brief cited in the court’s majority opinion on Windsor. Young and his co-authors, who included Erin Blondel ’09, based their argument against DOMA on federalism.

"Justice Kennedy's majority singled out our brief among the many dozens of amici in the case for citation, and many of the arguments in his opinion tracked arguments and examples in our brief," said Young, the Alston & Bird Professor of Law and a constitutional law scholar.   

Young has also spoken about federalism issues arising from conflict between jurists and state legislatures regarding same-sex marriage in Alabama and Indiana.

Deborah DeMott, the David F. Cavers Professor of Law, served as the sole reporter for the American Law Institute’s Restatement (Third) of Agency, which was prominently cited in the Court’s 2013 ruling in Hollingsworth.

The Restatement (Third) on Agency was referenced most prominently by Chief Justice John Roberts in his majority opinion in Hollingsworth.  The court held that the petitioners in the case – proponents of California’s same-sex marriage ban – lacked standing to appeal the District Court’s ruling after state officials declined to do so. The chief justice quoted the Restatement in his reasoning, in defining the essential elements of the agency relationship:  “‘An essential element of agency is the principal’s right to control the agent’s actions,’” he wrote.  “Yet petitioners answer to no one; they decide for themselves, with no review, what arguments to make and how to make them.”  And if, as the Restatement indicates, a hallmark of agency is that the agent owes a fiduciary obligation to the principal, the “petitioners owe nothing of the sort to the people of California,” he wrote. 

In this context, the chief justice also quoted the amicus brief of Walter Dellinger, the Douglas B. Maggs Professor Emeritus of Law, who cited the Restatement (Third) of Agency in support of respondents on the issue of standing. Dellinger, a former Solicitor General and leading Supreme Court advocate, has written and spoken to reporters about marriage rights, telling the New York Times that "once a substantial part of the country has experienced gay marriage, then the court will be more willing to finish the job."

In recent scholarship, Strauss, a visiting assistant professor of law, has investigated the legitimate uses of law to regulate deeply contested rights, with a particular focus on rights in intimate relationships. His recent works include “Why the State Cannot Simply Abolish Marriage,” 90 Indiana L.J. (forthcoming 2015); and “A Positive Right to Marry” (work in progress).


In the news

Professor Neil Siegel

Siegel discusses Supreme Court's potentially historic ruling on gay marriage
April 27, 2015 - The Hill

Siegel on Supreme Court same-sex marriage argument: "It's overwhelmingly likely that they're going to invalidate the state bans"
April 24, 2015 -WNCN

Siegel on N.C. GOP's attempts to uphold same-sex marriage ban: "These are not good arguments, but they're the only ones they have"
October 10, 2014 - Fayetteville Observer

       Siegel: Same-sex marriage opponents in N.C. are running out of time
       October 09, 2014 – WNCN

       Siegel analyzes Supreme Court's denial of review in same-sex marriage cases
       October 07, 2014 – SCOTUSblog

       Siegel comments on complexity of differing state and federal same-sex marriage rules
       October 07, 2014- CNN


Professor Ernest Young

A rebellion in Alabama
March 9, 2015 - National Law Journal

Young comments on effect of DOMA ruling on state marriage laws
June 27, 2013 -  Indianapolis Star

What the Supreme Court's Prop. 8 Ruling Means for Voter-Approved Laws
June 26, 2013 -

Raleigh Gay Rights Activists Welcome Supreme Court Ruling
June 26, 2013 - WUNC

George Will examines Supreme Court amicus brief on Defense of Marriage Act filed by Young and co-authors 
March 21, 2013 -  Washington Post

Young and Blondel '09 co-author amicus brief in Supreme Court DOMA case
March 4, 2013 -  The Volokh Conspiracy


Professor Laurence Helfer

Supreme Court asked to look abroad for guidance on same-sex marriage
April 6, 2015 – New York Times


Professor Walter Dellinger

       October 07, 2014 – New York Times