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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 Compendium of posts on Hobby Lobby and related cases The Anti-Torture Memos: Balkinization Posts on Torture, Interrogation, Detention, War Powers, and OLC The Anti-Torture Memos (arranged by topic) Recent Posts This Pudding Lacks a Theme
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Wednesday, June 26, 2013
This Pudding Lacks a Theme
Gerard N. Magliocca
Let me start by saying that I like the result in Windsor. I support same-sex marriage as a policy matter. And I can understand a few ways of concluding that same-sex marriage is constitutionally required.
Comments:
I don't think the Court is saying that state-level same-sex marriage bans are unconstitutional -- just that federal ones have additional constitutional vulnerabilities that are sufficient to dispose of Windsor's case. I'm surprised to be chiding people on Balkinization about hyper-formalism, but I would have thought we were past the point where we assume that structural and rights arguments are rigidly separate categories.
Windsor sued to obtain a tax benefit. She didn't get it.
It's nice that Obama supported her and all, but at the end of the day, no benefit until the USSC ruled. And, though some might not believe it, if the USSC ruled to uphold DOMA would Obama just ignore it and give her the benefit anyway? Under what authority? As to prudence, the matter was fully argued especially with BLAG's involvement, and not deciding it as the majority noted would have raised various complications. Standing is clear. As to the merits, I don't understand the bit about the 5A and 14A being different here. What does that mean? How is he reading it differently? The issue here is a specific government's power to do something, in particular a claim that they are wrongly targeting a particular group. Using rules that apply both to the states and the feds, the opinion notes that specifically targeting certain groups in a certain invidious way is a problem. To judge this, the court has to look at the specific governmental body in question. Here it is the feds. They regulate marriage but generally have let the states develop marriage law generally as to who can get married etc. DOMA suddenly altered this and there is clear evidence also of invidious intent. So, federalism enters into it, since inhibiting the states is curious and somewhat suspicious behavior, raising questions something bad is occurring. I agree with the common law method and that its results becomes clearer over time. But, the Court is not specifically providing heightened scrutiny to gays and lesbians. They are applying a more general principle and in a more restricted context. DOMA is particularly problematic above and beyond state restrictions. Finally, if you have this much difficulty with the ruling, on some level you don't like its "result," since the reasoning is an aspect of it. Cf. A separate post explaining the possible "result" of the reasoning in Prop 8, which might have led to the curious allotment of dissenters.
Asking the Court for some coherence is not hyper formalism. Or formalism. It's fine to say that the result is all that matters, but that's not my line of work.
Wow did you miss the point here. For starters, surely you don't buy the moronic rightwing argument that it is morally incoherent to permit gay people to marry if you don't also legalize bigamy? (FYI I think both bigamy and gay marriage should be legal.) When moral questions are at stake, any step in the correct direction is coherent even if you don't go all the way. Before touting Scalia's supposed "tour de force" you need to ask yourself what really constitutes "coherence" in a
I'm curious what's moronic about that, except that it is, for the moment, inconvenient for liberals to defend bigamists? Polygamy has a lot sounder foundation as a traditional form of marriage than SSM ever had, and the government must deal daily with immigrants who are LEGALLY married to more than one person in their country of origin.
I'll agree the concern is largely insincere, but there's nothing wrong with pointing out your foe's glaring inconsistencies.
I'll try to be clearer. If I thought that standing was present in Windsor, which I don't, I would have said that a ban on same-sex marriage is gender discrimination that lacks a persuasive justification as required by the Supreme Court's cases. Would that get a majority? No. Would I write it as a separate opinion? Yes. It's clear and easy to understand. Kennedy himself said as much at oral argument.
Justice "Scowlia's" "argle, bargle" is his anglicized description of the sounds emitted by a spewing Etna.
Andrew,
As a purely political matter, I completely agree that allowing gay marriage does not compel us, in any way at all, to also permit bigamy (or incest marriage, or God forbid underage marriage). But as a matter of jurisprudence, surely it's a bit more complicated, right? I mean, either states have the run of defining who can marry whom, or they don't. We can have very clean and intellectually pure compartments where the states decide whatever they want (man can marry woman, man can marry man, dad can marry daughter, mom can marry whole men's softball team, etc) and the federal government has no business denying benefits to any of these, or the federal government can decide, through passing laws, which kinds of marriages to confer benefits to. If the federal government has no business excluding gay people even though there is a federal law doing exactly that, then on what grounds does the federal government exclude anyone a state asserts is married? For whatever it's worth, I like the (social) result of the case; I'm less convinced the result is the doctrinally correct one, for whatever THAT'S worth.
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For starters, surely you don't buy the moronic rightwing argument that it is morally incoherent to permit gay people to marry if you don't also legalize bigamy? fifa 14 pc coins
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lol boosting fut coins online (FYI I think both bigamy and gay marriage should be legal.) When moral questions are at stake, any step in the correct direction is coherent even if you don't go all the way.
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Books by Balkinization Bloggers Jack M. Balkin, Memory and Authority: The Uses of History in Constitutional Interpretation (Yale University Press, 2024) Mark A. Graber, Punish Treason, Reward Loyalty: The Forgotten Goals of Constitutional Reform after the Civil War (University of Kansas Press, 2023) Jack M. Balkin, What Roe v. Wade Should Have Said: The Nation's Top Legal Experts Rewrite America's Most Controversial Decision - Revised Edition (NYU Press, 2023) Andrew Koppelman, Burning Down the House: How Libertarian Philosophy Was Corrupted by Delusion and Greed (St. Martin’s Press, 2022) Gerard N. Magliocca, Washington's Heir: The Life of Justice Bushrod Washington (Oxford University Press, 2022) Joseph Fishkin and William E. Forbath, The Anti-Oligarchy Constitution: Reconstructing the Economic Foundations of American Democracy (Harvard University Press, 2022) Mark Tushnet and Bojan Bugaric, Power to the People: Constitutionalism in the Age of Populism (Oxford University Press 2021). Mark Philip Bradley and Mary L. Dudziak, eds., Making the Forever War: Marilyn B. Young on the Culture and Politics of American Militarism Culture and Politics in the Cold War and Beyond (University of Massachusetts Press, 2021). Jack M. Balkin, What Obergefell v. Hodges Should Have Said: The Nation's Top Legal Experts Rewrite America's Same-Sex Marriage Decision (Yale University Press, 2020) Frank Pasquale, New Laws of Robotics: Defending Human Expertise in the Age of AI (Belknap Press, 2020) Jack M. Balkin, The Cycles of Constitutional Time (Oxford University Press, 2020) Mark Tushnet, Taking Back the Constitution: Activist Judges and the Next Age of American Law (Yale University Press 2020). Andrew Koppelman, Gay Rights vs. Religious Liberty?: The Unnecessary Conflict (Oxford University Press, 2020) Ezekiel J Emanuel and Abbe R. Gluck, The Trillion Dollar Revolution: How the Affordable Care Act Transformed Politics, Law, and Health Care in America (PublicAffairs, 2020) Linda C. McClain, Who's the Bigot?: Learning from Conflicts over Marriage and Civil Rights Law (Oxford University Press, 2020) Sanford Levinson and Jack M. Balkin, Democracy and Dysfunction (University of Chicago Press, 2019) Sanford Levinson, Written in Stone: Public Monuments in Changing Societies (Duke University Press 2018) Mark A. Graber, Sanford Levinson, and Mark Tushnet, eds., Constitutional Democracy in Crisis? (Oxford University Press 2018) Gerard Magliocca, The Heart of the Constitution: How the Bill of Rights became the Bill of Rights (Oxford University Press, 2018) Cynthia Levinson and Sanford Levinson, Fault Lines in the Constitution: The Framers, Their Fights, and the Flaws that Affect Us Today (Peachtree Publishers, 2017) Brian Z. Tamanaha, A Realistic Theory of Law (Cambridge University Press 2017) Sanford Levinson, Nullification and Secession in Modern Constitutional Thought (University Press of Kansas 2016) Sanford Levinson, An Argument Open to All: Reading The Federalist in the 21st Century (Yale University Press 2015) Stephen M. Griffin, Broken Trust: Dysfunctional Government and Constitutional Reform (University Press of Kansas, 2015) Frank Pasquale, The Black Box Society: The Secret Algorithms That Control Money and Information (Harvard University Press, 2015) Bruce Ackerman, We the People, Volume 3: The Civil Rights Revolution (Harvard University Press, 2014) Balkinization Symposium on We the People, Volume 3: The Civil Rights Revolution Joseph Fishkin, Bottlenecks: A New Theory of Equal Opportunity (Oxford University Press, 2014) Mark A. Graber, A New Introduction to American Constitutionalism (Oxford University Press, 2013) John Mikhail, Elements of Moral Cognition: Rawls' Linguistic Analogy and the Cognitive Science of Moral and Legal Judgment (Cambridge University Press, 2013) Gerard N. Magliocca, American Founding Son: John Bingham and the Invention of the Fourteenth Amendment (New York University Press, 2013) Stephen M. Griffin, Long Wars and the Constitution (Harvard University Press, 2013) Andrew Koppelman, The Tough Luck Constitution and the Assault on Health Care Reform (Oxford University Press, 2013) James E. Fleming and Linda C. McClain, Ordered Liberty: Rights, Responsibilities, and Virtues (Harvard University Press, 2013) Balkinization Symposium on Ordered Liberty: Rights, Responsibilities, and Virtues Andrew Koppelman, Defending American Religious Neutrality (Harvard University Press, 2013) Brian Z. Tamanaha, Failing Law Schools (University of Chicago Press, 2012) Sanford Levinson, Framed: America's 51 Constitutions and the Crisis of Governance (Oxford University Press, 2012) Linda C. McClain and Joanna L. Grossman, Gender Equality: Dimensions of Women's Equal Citizenship (Cambridge University Press, 2012) Mary Dudziak, War Time: An Idea, Its History, Its Consequences (Oxford University Press, 2012) Jack M. Balkin, Living Originalism (Harvard University Press, 2011) Jason Mazzone, Copyfraud and Other Abuses of Intellectual Property Law (Stanford University Press, 2011) Richard W. Garnett and Andrew Koppelman, First Amendment Stories, (Foundation Press 2011) Jack M. Balkin, Constitutional Redemption: Political Faith in an Unjust World (Harvard University Press, 2011) Gerard Magliocca, The Tragedy of William Jennings Bryan: Constitutional Law and the Politics of Backlash (Yale University Press, 2011) Bernard Harcourt, The Illusion of Free Markets: Punishment and the Myth of Natural Order (Harvard University Press, 2010) Bruce Ackerman, The Decline and Fall of the American Republic (Harvard University Press, 2010) Balkinization Symposium on The Decline and Fall of the American Republic Ian Ayres. Carrots and Sticks: Unlock the Power of Incentives to Get Things Done (Bantam Books, 2010) Mark Tushnet, Why the Constitution Matters (Yale University Press 2010) Ian Ayres and Barry Nalebuff: Lifecycle Investing: A New, Safe, and Audacious Way to Improve the Performance of Your Retirement Portfolio (Basic Books, 2010) Jack M. Balkin, The Laws of Change: I Ching and the Philosophy of Life (2d Edition, Sybil Creek Press 2009) Brian Z. Tamanaha, Beyond the Formalist-Realist Divide: The Role of Politics in Judging (Princeton University Press 2009) Andrew Koppelman and Tobias Barrington Wolff, A Right to Discriminate?: How the Case of Boy Scouts of America v. James Dale Warped the Law of Free Association (Yale University Press 2009) Jack M. Balkin and Reva B. Siegel, The Constitution in 2020 (Oxford University Press 2009) Heather K. Gerken, The Democracy Index: Why Our Election System Is Failing and How to Fix It (Princeton University Press 2009) Mary Dudziak, Exporting American Dreams: Thurgood Marshall's African Journey (Oxford University Press 2008) David Luban, Legal Ethics and Human Dignity (Cambridge Univ. Press 2007) Ian Ayres, Super Crunchers: Why Thinking-By-Numbers is the New Way to be Smart (Bantam 2007) Jack M. Balkin, James Grimmelmann, Eddan Katz, Nimrod Kozlovski, Shlomit Wagman and Tal Zarsky, eds., Cybercrime: Digital Cops in a Networked Environment (N.Y.U. Press 2007) Jack M. Balkin and Beth Simone Noveck, The State of Play: Law, Games, and Virtual Worlds (N.Y.U. Press 2006) Andrew Koppelman, Same Sex, Different States: When Same-Sex Marriages Cross State Lines (Yale University Press 2006) Brian Tamanaha, Law as a Means to an End (Cambridge University Press 2006) Sanford Levinson, Our Undemocratic Constitution (Oxford University Press 2006) Mark Graber, Dred Scott and the Problem of Constitutional Evil (Cambridge University Press 2006) Jack M. Balkin, ed., What Roe v. Wade Should Have Said (N.Y.U. Press 2005) Sanford Levinson, ed., Torture: A Collection (Oxford University Press 2004) Balkin.com homepage Bibliography Conlaw.net Cultural Software Writings Opeds The Information Society Project BrownvBoard.com Useful Links Syllabi and Exams |