SURVEY: Most Law Profs Support Marriage Equality

Openly gay (and conservative) law professor Dale Carpenter conducted a survey of nearly 500 constitutional law professors around the United States and discovered that a vast majority of them support marriage equality as a policy matter and also believe that the so-called Defense of Marriage Act is unconstitutional as a matter of legal analysis. Here are some excepts of some of the questions from the survey, which were published on the popular Volokh Conspiracy blog:

QUESTION 1: “As a policy matter, do you think states should legalize same-sex marriages?”

Yes — 87%
No — 8%
Not sure — 3%
No answer/Other — 2%

QUESTION 2: “As a policy matter, do you support federal recognition of same-sex marriages legalized by the states?”

Yes — 87%
No — 8%
Not sure — 2%
No answer/Other — 2%

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%

Professor Carpenter (and his research assistant) sent a survey to 1,579 professors listed as teaching Constitutional law (and received 485 responses: a 31% response rate). Carpenter himself summarizes the rationale for the exercise and goes into more depth about his interpretation of the results at the blog:

Eighty-seven percent of constitutional law professors back marriage for same-sex couples, and 7 out of 10 believe the federal Defense of Marriage Act is unconstitutional, but only a slight majority of 54% think the federal Constitution requires states to recognize same-sex marriages. That’s the result of a survey of 485 constitutional law professors that I conducted this summer with the help of my indefatigable and indispensable research assistant, Minnesota 2L Samuel Light. In this post, I want to highlight some of the main results from the survey. 

The survey was prompted by a comment from a pro-SSM law professor that the constitutional debate on the issue among scholars was over.  According to him, there was no remaining doubt among specialists that recognition of SSM is required by the Constitution. I suspected this claim was too strong.  Despite a common criticism, many constitutional law professors pride themselves on being able to separate their policy preferences from their constitutional views.  (Whether they succeed in doing so is a different question.)  So I wanted to test the hypothesis that the matter of same-sex marriage has been settled by asking professors themselves. 

The survey was also prompted by the progress of some major cases challenging anti-SSM laws.  One of the cases challenges California’s Prop 8; others take on the Defense of Marriage Act. These cases are teed up to reach the United States Supreme Court in the 2012 Term.  (The Court will consider whether to take the Prop 8 case and at least one of the DOMA cases at its September 24 conference.)  The cases don’t necessarily call for a comprehensive answer to the question whether there is a constitutional right to same-sex marriage, but that large question will definitely be in the background. 

These results are interesting, to say the least. It is interesting to speculate as to whether the opinions of their professors about marriage equality are ahead of or behind their students. That would be an interesting follow-up survey, I think! Also, it is curious whether the results of the survey will have any impact on the Court's deliberations on the constitutionality of DOMA and other blockbuster decisions about marriage equality that are forthcoming in the Supreme Court's upcoming 2012-13 term.

hat/tip to LGBT Think Progress