September 10, 2012
By Jacob Combs
Writing at the Volokh Conspiracy, Dale Carpenter, a professor at the University of Minnesota Law School and author of the recent book Flagrant Conduct about the 2003 Lawrence v. Texas case, has released the results of a survey of 485 constitutional law professors that he conducted this summer. Carpenter sent his survey to more than 1,500 instructors listed as constitutional law professors in the 2011-12 directory of the Association of American Law Schools, and received responses to the four questions he asked, as he writes, from “many of the most prominent constitutional law professors in the country.”
As a gateway question, there was almost unanimous agreement among the professors that states should make marriage equality legal, with 87 percent of respondents saying so and only eight percent saying that states should not. An identical 87-8 split of the professors supported federal recognition of marriages conducted for gay and lesbian couples by the states. (The overlap of these two opinions makes sense, since it would seem like an odd position to support equal marriage rights only on the state or federal level but not on both.)
When it comes to the Defense of Marriage Act, the constitutionality of which is likely to be considered by the Supreme Court in its next term, 69 percent of the professors expressed their belief that DOMA is unconstitutional. Sixteen percent said that it was constitutional, while 11 percent said that they were unsure of the statute’s constitutionality. But it was the survey’s final question which elicited perhaps the most intriguing response: when asked whether or not the U.S. Constitution requires states to allow gay and lesbian couples to marry, only 54 percent of the respondents said yes. Twenty-eight percent said no, while 13 percent answered ‘not sure.’
As Carpenter notes, due to the 31 percent response rate of the survey, it is possible that opposition to marriage equality was underreported due to a reluctance by professors that held those views to express them in the survey. Nevertheless, his survey offers an interesting insight from the perspective of constitutional experts as to how marriage equality might fare in the next session of the Supreme Court, when both DOMA and Prop 8 could be considered by the high court.
I wrote a week-long series of pieces earlier this summer about the timing of the two issues at the Supreme Court, arguing that it is better for the marriage equality cause as a whole if the Court considers DOMA before Prop 8. The results to Carpenter’s survey seems to lend some credence to that argument, with many more professors expressing the belief that DOMA is unconstitutional as opposed to marriage equality bans like Prop 8 (and, given the responses about personal preferences, many of the professors who said that the federal constitution does not mandate marriage for gay and lesbian couples are personal supporters of marriage equality themselves).
A significant caveat to this argument, however, is the fact that the Prop 8 case no longer presents the simple question of whether or not there is a fundamental right to marriage for gays and lesbians in the U.S. Constitution. There has been much debate since the Ninth Circuit’s ruling striking Prop 8 down about whether that decision, which narrowed the constitutional question to the withdrawal of the classification of ‘marriage’ only by a ballot initiative, was more or less likely to be upheld (or even heard) by the Court.
My personal view on that question is that the Ninth Circuit’s decision, which relied heavily on Romer v. Evans and extrapolated the facts of that case to make a determination on the Prop 8 campaign, is perhaps on less stable ground than a decision that applied Supreme Court precedent in a more direct manner. Nonetheless, I also see Judge Reinhardt’s ruling as a clever move towards encouraging the Supremes to not take up the case (a move that I think is in fact the correct one for a circuit judge to make). As Carpenter’s survey shows, it may be too soon in the world of American jurisprudence for a definitive Supreme Court ruling recognizing marriage equality as a fundamental right.