Gay Marriage and the Role of the Judiciary

Civil Rights Practice Group and Religious Liberties Practice Group

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same-sex marriageOn May 15, 2008, the California Supreme Court decided In re Marriage Cases.  In a 4-3 decision, it followed the lead of the Massachusetts Supreme Court’s Goodridge decision, holding that failure to permit same-sex marriage is a denial of equal protection. California will ultimately decide the issue in November by plebiscite, when the California Protection of Marriage Initiative is put to a vote. Recently on October 10, 2008, Connecticut became the third state to legalize same-sex marriage in Kerrigan v. the State Commissioner of Public Health in which the state Supreme Court struck down a statutory ban by a 4-3 decision.

This Federalist Society panel will focus on the proper role of the judiciary.  Were the decisions of the Massachusetts, Connecticut, and California courts exercises in judicial activism?  Or were these jurists, bound by their oath to uphold the state constitution, faithfully applying the law to a novel situation? In the coming years, other unforeseen equal protection arguments concerning any number of issues are likely to be presented to the courts.  For example, recent legal cases and news stories concerning adoption and polygamy will challenge traditional family structures. How should the judiciary act in these and other situations? This panel offers a range of perspectives on what the future of the judiciary may hold. Audio and video recorded on October 23, 2008.


  • Mr. Charles J. Cooper, Cooper & Kirk, PLLC
  • Ms. Maggie Gallagher, Institute for Marriage and Public Policy
  • Hon. Jamin Raskin, Maryland State Senate and American University College of Law
  • Ms. Lara Schwartz, Human Rights Campaign
  • Moderator: Mr. Stuart Taylor Jr., National Journal and Newsweek