an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.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
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto 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 princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Although the relevant section of DOMA declares that all federal laws concerning marriage shall apply only to opposite-sex couples, the Bankruptcy Court explicitly adopted the reasoning and language of the letter released by Attorney General Eric Holder announcing the administration’s shift. The Holder letter explained that any law discriminating against people on the basis of their sexual orientation must satisfy “heightened scrutiny.” Gays and lesbians meet the traditional requirements for a more searching judicial review: they have historically suffered discrimination; their sexual orientation is essentially an immutable characteristic; and they are often victims of negative stereotypes that do not reflect their actual abilities. And while the Holder letter didn’t specify exactly what form of heightened scrutiny should apply – intermediate scrutiny, strict scrutiny, or something else – it did argue that discriminatory laws must at least be backed by “a tenable justification” that rests on the “actual” purposes of the law and not post-hoc “rationalizations.”
In the bankruptcy case, In re Balas, the judge explained that DOMA could not be constitutionally applied to this particular gay couple, who were lawfully married during the brief time when California allowed same-sex marriage. The two men presented none of the dangers Congress was seeking to remedy by limiting marriage to heterosexual couples. Congress said it meant to encourage responsible procreation and childrearing, but the couple has no children. Congress said it wanted to protect the institution of traditional marriage, but because the couple was already married the judge said any damage had already been done and allowing them to file jointly for bankruptcy posed no additional harm. Congress said it wanted to defend traditional notions of morality, but the judge recognized that a “joint bankruptcy filing is in no sense discernible to the court to be a validly challengeable affront to morality, traditional or otherwise.”
When asked to explain Brown v. Board of Education, law professors routinely point out that the Supreme Court did not act alone. The executive branch had also made important moves that significantly advanced civil rights, like President Truman’s Executive Order 9981, which desegregated the armed forces. If the Supreme Court declares bans on gay marriage unconstitutional—what would be the Brown for gays and lesbians—In re Balas suggests that the Holder letter is likely to be, like Truman’s executive order, an influential and historic turning point. Posted
by Adam Winkler [link]
Who dares in this day and age to challenge Brown v. Board of Education? But that did not happen over night, as witness Nixon's Southern Strategy which has some continuing remnants. Gays and lesbians have been under "strict scrutiny" for ever too long so it is good to have "heightened scrutiny," finally, of laws discriminating against gays and lesbians. Perhaps in 50 years, we'll look back and wonder what all the ado was about. Barry Friedman's "The Will Of The People ..." comes to mind as an explanation of certain constitutional changes that have taken place over the years.
As responses to his Huffington Post article noted, Obama did not "set" but only followed precedent here. This is a basic point and the fact some people who should know better ignore (are ignorant of?) it is bothersome.
Lesser issue, but still bothersome, it is "same sex marriage." You don't have to be "gay" (even if the term doesn't just apply to homosexual men) to have one. I don't usually hear people talk about "straight" marriage.
I do agree that legal change is an interconnected process, one reason why those who make an issue that Brown by itself didn't do much sort of miss the point.
As to the ruling, that too is helpful, since discrimination is countered by chipping away.