Gay conservative law Professor Dale Carpenter conducted a survey of nearly 500 of his fellow constitutional law professors asking their views on marriage equality and the Constitution. He discovered that, at least among this set of constitutional experts, federal marriage discrimination is overwhelmingly viewed as unconstitutional and a solid majority believe state discrimination is unconstitutional as well:
QUESTION 3: “Section 3 of the Defense of Marriage Act (DOMA) forbids the federal government to recognize same-sex marriages legalized in the states. As a matter of federal constitutional law, do you believe the federal government may refuse to recognize same-sex marriages legalized in the states?”
Yes (DOMA Section 3 is constitutional) — 16%
No (DOMA Section 3 is unconstitutional) — 69%
Not sure — 11%
No Answer/Other — 3%
QUESTION 4: “As a matter of federal constitutional law, do you believe that states *must* allow same-sex couples to marry?”
Yes — 54%
No — 28%
Not Sure — 13%
No Answer/Other — 5%
The discrepancy between those professors who recognize the unconstitutionality of DOMA and those who understand that states may not deny equal marriage rights to gay couples as well likely reflects presence of conservatives who believe the Constitution has little to say about anti-gay discrimination, but who also think that it imposes novel new limits on federal power. According to Carpenter’s data, 54 percent of constitutional law professors appear to recognize that the Constitutional promise of “equal protection of the laws” applies to gay people. Additionally, at least 15 percent appear to believe that DOMA violates some fabricated new doctrine protecting states’ rights.
This is, of course, a hopeful sign that DOMA will soon be declared unconstitutional by the Supreme Court. Justice Kennedy, who is the likely swing voter in the DOMA case, has a fairly solid record on gay rights and he recently displayed a particular fondness for outlandish states’ rights arguments. It is reasonably likely that one or both of the leading arguments against DOMA will convince Justice Kennedy.
One caveat is in order, however. Prior to oral arguments in the Affordable Care Act case, 85 percent predicted the justices would uphold the law on the merits. That prediction came true, but the justices came disturbingly close to accepting the completely meritless case against health reform.