E-mail:
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Corey Brettschneider corey_brettschneider at brown.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Jonathan Hafetz jonathan.hafetz at shu.edu
Jeremy Kessler jkessler at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at yu.edu
Rick Pildes rick.pildes at nyu.edu
David Pozen dpozen at law.columbia.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
David Super david.super at law.georgetown.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Nelson Tebbe nelson.tebbe at brooklaw.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
The Defense of Marriage Act of 1996 (DOMA) provides in pertinent part:
In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word “marriage” means only a legal union between one man and one woman as husband and wife and the word “spouse” refers only to a person of the opposite sex who is a husband or wife.
DOMA is a pretty nasty law, depriving same-sex spouses of Social Security survivors’ benefits and many other protections.
Last month, two prominent Ninth Circuit judges, Alex Kozinski and Stephen Reinhardt, each acting in their capacity as administrators of the courts, declared that DOMA does not preclude the extension of federal insurance benefits to the same-sex spouses of court employees. Kozinski avoided the constitutional issue, which he thought was a serious problem, by construing DOMA not to preclude the extension of benefits. Reinhardt wrote that, if DOMA blocks such benefits, it is unconstitutional. The opinions are here and here.
Both observed that DOMA is constitutionally infirm to the extent that it reflects a bare desire to harm a politically unpopular group, an interest deemed impermissible in Romer v. Evans, in which the Supreme Court struck down a law barring antidiscrimination protection for gay people. (I have been questioning DOMA’s constitutionality on this basis in severalplaces.)
The decisions are significant because, while they are not binding judicial precedent, they are the first time that any federal judge has questioned the constitutionality of DOMA. Decisions by two such respected judges, widely separated on the political spectrum – Kozinski, the Chief Judge of the Ninth Circuit, is a Reagan appointee who often speaks to the Federalist society, and Reinhardt has been called the most liberal judge on the liberal Ninth Circuit – have powerful persuasive authority.