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Andy Koppelman on the DOMA litigation

By Jack M. Balkin

Following our previous discussion, Andy has an op-ed in the LA Times explaining why the Supreme Court might strike down section 2 of DOMA. Here's a taste:

This Supreme Court is unlikely to conclude that same-sex marriage must be allowed in all states. But you can invalidate DOMA without going that far, by focusing on its unprecedented, blunderbuss character.

On the current Supreme Court, this case would probably depend on the swing vote of Justice Anthony M. Kennedy. (If he is still there when it is heard ? appeals take years, and he turns 74 later this month.) In a 1996 decision striking down a Colorado law that repealed all antidiscrimination protection for gay people, he noted that it "has the peculiar property of imposing a broad and undifferentiated disability on a single named group." This kind of imposition "is unprecedented in our jurisprudence," and he declared that it "is not within our constitutional tradition to enact laws of this sort." Similarly, in a 2003 decision invalidating a law banning homosexual sex, he observed that such gay-specific laws were very recent, originating in the 1970s. That same logic might well condemn DOMA, but it would be unlikely to invalidate the marriage laws of individual states.

Full post as published by Balkinization on July 14, 2010 (boomark / email).