Monday, March 25, 2013
The Same-Sex Marriage Cases
Gerard N. Magliocca
Robert H. Jackson once said:
Marty Lederman on why it makes sense:
What is the "stable outcome" concern? The denial of marriage while providing domestic partnership benefits is wrong in part because the concern for children etc. makes little sense if you are going to do that.
Yes, ultimately, SSM in some state w/o that will come up, but cases are about taking the issue at hand, not one that would come up eventually. It wasn't a "fiction" to rule upon graduate schools before grade schools in the race context, was it?
You'll also have to help us regarding how Romer is "incapable of principled application" outside of sexual orientation. If such a law involved members of some other group (let's say the handicapped) would it not possibly lead to a principled Romer opinion?
I find the federalism games going on at Volokh Conspiracy now dubious myself but DOMA can rest on equal protection grounds. Suddenly, in ways that are pretty irrational, the feds singled out same sex marriage this way. Never having it is one thing. Denying federal benefits or burdens in every which way even after a state recognizes it is pretty irrational and invidious.
It appears to violate rational basis review. It would advance federalism too to allow states more room to pass SSM w/o being hurt by DOMA, so there is a bit of that in there, so sure, they can use that as "cover" if you want.
I think it will come up again from time to time. See, e.g., how Newdow cited prudentially (when possible) keeping the federal courts out of family law. It helps that Congress is doing something pretty novel here -- it traditionally left marriage as states left it, even in if states in segregation days recognized interracial marriages.
The Court should just say that sexual orientation is a suspect classification. That's what the courts are doing anyway (despite what they say), so why pretend that it is not the case? Will the Court do that? I doubt it.
Justice O'Connor in Lawrence noted that when various unpopular groups are targeted, the USSC has over the years applied rational basis with more teeth.
It would be fine, like the 2CA did, if the USSC takes the Obama Administration's advice and say sexual orientation is a suspect classification. But, (it's harder at least) unlike in the Prop 8 case, rational basis very well be all that's necessary.
I still don't understand how not letting Woman A marry Woman B, but only allowing Men A marry Woman B, is not a form of sex discrimination.
The "real difference" argument that would inevitably get brought up to negate intermediate scrutiny presupposes that marriage is only about procreation. Reality proves that simply is not the case, and the Connecticut Supreme Court case allowing same-sex marriage over a decade ago destroyed this rationale.
You're right that these should be easy cases, but social mores and expectations of what is the "natural" role for men and women have often been powerful distractions. Just as they were before Reed v. Reed and its progeny.
You'll also have to help us regarding how Romer is "incapable of principled application" outside of sexual orientation. If such a law involved members of some other group (let's say the handicapped) would it not possibly lead to a principled Romer opinion?http://www.joyrs.com windows 7 ultimate product key http://www.rs2fun.com
thanks very nice post.
Reality proves that simply is not the case, and the Connecticut Supreme Court case allowing same-sex marriage over a decade ago destroyed this rationale.Post a Comment
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