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Koppelman on DOMA & Romer

By Lawrence Solum

Andrew Koppelman (Northwestern University School of Law) has posted Doma, Romer, and Rationality (Drake Law Review, Forthcoming) on SSRN. Here is the abstract:

It has been objected by many that the Defense of Marriage Act lacks a rational basis because it reflects a bare desire to harm a politically unpopular group. The increasing success of the argument, which has persuaded three federal judges, reveals the hidden normative premises of rational basis analysis, at least whenever that analysis is used to invalidate a statute. Since 1996, when DOMA was passed by overwhelming margins in both houses of Congress, the country?s attitudes toward gay people have evolved rapidly, to the point where this kind of mindless lashing out at gays looks a lot less attractive. In 1996, otherwise reasonable people thought it a pointless waste of taxpayer dollars to look after the basic needs of gay couples and their families. That callousness no longer looks so rational, and increasing numbers are ready to recognize gay relationships. The burden of proof now lies on those who want to defend this discrimination, and it is very hard to articulate a basis for this discrimination that makes sense. The shift is really one of normative priorities. The invocation of ?rationality? masks the processes that are actually at work. The changing fortunes of DOMA shows how Constitutional Law develops over time, responding to shifts in the larger culture.

Highly recommended.

Full post as published by Legal Theory Blog on July 30, 2010 (boomark / email).