Balkinization  

Thursday, February 28, 2013

The Eight-State Solution

Mark Tushnet

The U.S. government's filing in Hollingsworth v. Perry, the California gay marriage case, asks the Court to adopt the "eight-state solution" to the issue. That is, it argues that in states that have given gay and lesbians couples all the rights that otherwise attach to marriage but have withheld the designation "marriage" from their relationships, the federal Constitution requires that the states make that designation available to those couples.

This would eliminate what seemed to some legislators, for example recently in Illinois, a compromise position. And, in so doing, the eight-state solution would force legislators in other states to an all-or-nothing choice. Is that a perverse incentive, or more like holding legislators' feet to the fire? The eight-state solution tells legislators that, despite what they might prefer, they can't avoid confronting the issue of marriage equality by adopting something just a bit short of that. (Presumably, even were the eight-state solution to become the law of the land, legislators could avoid enacting full marriage equality by going less far than California and Illinois did in equalizing the rights available to straight and gay/lesbian couples.)

Does the eight-state solution illustrate a slippery slope? Maybe, if one thought that, absent the availability of that solution, the Court would not have been able to craft a position short of full marriage equality nation-wide. Note, though, that Judge Reinhardt for the Ninth Circuit was able to craft a one-state solution resting on characteristics of what happened in California that had not happened anywhere else.

Finally, I think it's of interest that Illinois's attorney-general joined an amicus brief supporting full marriage equality, after the state legislature enacted and the state's governor signed an "everything but the name" statute. I'll preempt Sandy Levinson by observing that this might be one consequence of the presence on the state level of quite non-unitary executive branches.

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