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
"Fictions are often the hostages that the forces of movement give to the forces of position. But frequently lawyers' fictions serve no such useful purpose: too often they are employed as a screen too cover up a retreat."
That's a pretty good summary of where we stand going into the arguments over the next two days. The forces of movement are the proponents of same-sex marriage. There are various fictions that they could use to appease the other side. One is the rationale used by the Ninth Circuit panel in the Proposition 8 case, which makes no sense to me otherwise. Another would be to go with the idea that states cannot deny marriage to same-sex couples when they give them domestic partner benefits. That's better, but does anyone believe that this will be a stable outcome? It is just a pragmatic choice to do less. (You could say the same thing about Romer, which is incapable of principled application outside the context of sexual orientation rights.)
On the other hand, the argument du jour that DOMA exceeds Congress's Article I power fits well with the latter part of Justice Jackson's statement. This federalism argument strikes me as highly implausible, but it is a good screen to cover up the retreat by the forces of position. It avoids an expansion of equal protection doctrine and creates a domain of state law that is (partly) immune from federal control. I'd bet a lot, however, that if this is the ground that the Court uses to invalidate DOMA, that precedent will not get applied again, much as Shelley v. Kramer does not get cited for its state action holding because everyone understands that the case is really about race.
These cases are conclusions in search of an argument. We'll see what else imagination can dream up on Tuesday and Wednesday.
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.