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
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 marty.lederman at comcast.net
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
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
I want to make a couple of observations about the arguments before we go into hibernation until June.
First, the tenor of the discussion resonated with an article that Kenji Yoshino wrote a few years ago in the Harvard Law Review explaining that the Court is now rather allergic (that's my word, not Kenji's) to expanding the Equal Protection Clause. When a strong equal protection claim is made, the Justices search for a way to reach the same result through a more general rationale. In Lawrence v. Texas, for example, the Justices used the Due Process Clause and framed the issue as a liberty interest rather than going with Justice O'Connor's view that the state anti-sodomy statute violated equality. This week we saw something similar. The Court was not receptive to the Obama Administration's submission that sexual orientation should be treated as a suspect classification. As for DOMA, Justice Kennedy strove mightily to come up with an Article One or Tenth Amendment argument that would invalidate DOMA without reaching the equal protection issue. We'll see if that happens.
Second, the claim that the states have the sole power to define marriage within constitutional constraints has implications for a future Full Faith and Credit Clause claim that every state must recognize a same-sex marriage contracted in another state. The Full Faith and Credit Clause does allow for congressional regulation, as in Section Two of DOMA, but how can Congress lack the authority to define marriage under Article One but possess the power to define marriage (albeit in a more limited way) under Article Four? Maybe Windsor will lead to the conclusion that the Full Faith and Credit Clause does not apply to marriage at all, but that depends on how carefully the opinion is written.
Third, Tom Goldstein threw out the idea over on SCOTUSBlog that the Court could (depending on what Windsor does) vacate and remand Perry for reconsideration in light of Windsor. If that happens, though, then the stay of the District Court opinion would presumably remain in place. That means that same-sex marriages in California may not become legal this year, although many people are assuming that they will become lawful in June.
In fact, in Heller, Roberts was dismissive of tiers of review even in that context. Paul Clement was there asking for intermediate scrutiny and Roberts was like "do we really need to do that"?
Lawrence did agree equality had something to do with it, but I agree with the overall sentiment. Rational basis plus review will be applied in fact, but they won't admit it as such.
As to @2 and Art. IV generally, an interesting question there are judgments, including things like adoptions and/or things like birth certificates. That matter came up in a sad case of a woman who fled the country with a child and a state w/o SSM recognized Vermont's judgment on the matter of the child.
The third option would be curious since it would seem to reply on EP being the reason. I fear more delay in CA though by now we have seen it comes many a way.
"Whereas the full faith and credit command is exacting with respect to [a] final judgment … rendered by a court with adjudicatory authority over the subject matter [...] it is less demanding with respect to choice of laws. We have held that the Full Faith and Credit Clause does not compel a state to substitute the statutes of other states for its own statues dealing with a subject matter concerning which it is competent to legislate."
Thus, Mississippi need not recognize a Massachusetts same-sex marriage without Section 2 of DOMA.
Few seem to be concerned when equal protection involves federal treatment on the account of race and various other groups. So, don't think that is causing much "discomfort" except to the minority who care about that sort of thing.
Not that I think the argument is very 'strained' and at the very least it has been well recognized a long time.
I enjoyed Jack Balkin's draft paper "Verdi's High C" referenced in his non-comment post of March 28th. (I had much earlier enjoyed Jack and Sandy Levinson's "Law, Music, and Other Performing Arts." Jack does okay as a soloist) I'm more of a jazz fan than an opera buff, so in my twisted mind as I read about the subject performance at La Scala, I thought of Justice Scalia who is an opera buff (under his robe). So I wondered how Jack might in his redrafting of his paper consider Le Scalia's legal performances at oral arguments, including in the recent SSM appeals before the Court.
Jack compares some performing arts to legal performances. In his draft he does make reference to the development of gay rights, but does not specifically address the recent SSM cases and their oral arguments. From Jack's point of view, I wonder how he would address the legal performances at these oral argument, identifying the performers, the audience or audiences; whether the SCOTUS Justices are both an audience and performers, as in some circumstances in the arts the audience can become performers in some sense (as were the boo-birds in the 3rd balcony at La Scala). Query: Can we picture Le Scalia as a boo-bird at oral arguments?
By the way, an alternate title for Jack's paper might be: "PIRACY ON THE HIGH C's!"
As I noted earlier, I am a jazz fan and the late Dave Brubeck was asked at an interview whether there were rules for improvisation in jazz. He responded that there were definitely such rules and if violated the other musicians would make note of it and make life musically difficult for the violator. Query whether there are SCOTUS rules governing the improvisations of Justices during oral arguments?
Jack's draft paper suggests to me perhaps some drifting from his New Originalism. Also, it should be noted that he may not be quite sure of judicial supremacy. I call this progress. I await with bated breath Jack's final version of his paper. Perhaps it may lead to an opera - or musical - on the Court and its Jesters, I mean Justices, or perhaps both.