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DOMA and Deference

One of the best comments on today's DOMA case that I've read so far is this piece by Northwestern Law Prof Andrew Koppelman. Here's a taste:

DOMA declares, in pertinent part, that the word "marriage," wherever it appears in the U.S. Code, "means only a legal union between one man and one woman as husband and wife."  The rule applies indiscriminately across all federal laws, producing some very strange results.  Federal ethics rules bar officials from participating in matters in which their spouses have a financial interest — but not if they're same-sex spouses.  It is a federal crime to assault, kidnap, or kill a member of the immediate family of a federal official in order to influence or retaliate against that official — but not if you do that to a same-sex spouse.  Ditto Social Security, federal pensions, taxation of inheritances (which was the issue in today's case), and over a thousand other provisions.
Justice Kennedy had no trouble recognizing this for what it is:  a "bare desire to harm a politically unpopular group."  The statute lashes out at same-sex couples with no attention at all to the purposes of any of the underlying laws it affects.

While Koppelman is favoraby inclined towards Kennedy's opinion, I found it underwhelming on the judical craftsmanship front.  Kennedy did not want to commit to a form of heightened scrutiny for laws burdening gay people, but his opinion plainly went beyond the sort of deferential, rational basis scrutiny the courts normally mete out in equal protection cases that don't involve so-called "suspect" classifications. 

Explicitly applying heightened scrutiny in Windsor would have helped reduce some of the whiplash I felt reading the DOMA and Voting Rights Act cases back-to-back this morning.  That whiplash came not so much because of any blatant inconsistency in the bottom-line results or methodology (no deference to Congress!).  But there was something a little bit jarring about the shifting lineups ready to lament the Court's lawless invalidation of "demoractically enacted legislation"  That bothered Justice Scalia a lot more today than yesterday, when he was busy dismantling the democratically enacted Voting Rights Act.  Since the 15th Amendment expressly delegates to Congress the responsibility to safeguard voting rights against racial discrimination, I think the Court's "liberals" have the better end of that deference-tension, but a little more candor about the level of scrutiny they were applying in the DOMA case would have been welcome.

About the Author

Eduardo Moisés Peñalver is the Allan R. Tessler Dean of the Cornell Law School. He is the author of numerous books and articles on the subjects of property and land use law.



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Eduardo, I share your whiplash. I am stilll sore this morning. But has there ever been an opinion by Justice Kennedy that was overwhelmingly brilliant in its craftsmanship?

This one might be below even his low average.  On the other hand, as one of my colleagues pointed out yesterday at lunch, he is the only one who can claim consistency with respect to the deference point across the VRA and DOMA cases.  He has absolute faith in his abilities.

On CNS, Archbishop Cordeleone replies on behalf of the USCCB. I don't find his argument very clear:


He said the effect of the court's decision is to "undermine in the law the principle that children have a right to a mother and father."


He also noted that to have a "healthy vibrant society we need to reclaim a marriage culture."


The archbishop pointed out that he has said all along that no matter how the court ruled "our work remains unchanged. We need to catechize our people about marriage."


"Even if the court issued a ruling that we liked, we would still have a lot of work to do in helping our people understand what marriage really is, why marriage is important for the public good and why it's essentially an institution to support social justice, justice for the sake of children," he added.


Archbishop Cordileone said marriage has the status that it does in law because it has always been a child-centered institution. Redefining marriage, he said, turns it into an "adult-centered institution" where the government "doesn't have an interest in people's love lives" or in "how people work out their intimate relationships."

a lot of work to do in helping our people understand what marriage really is

Our people, I assume, would be the strangely ignorant Catholic laity, many of them married for decades, who will have no idea of what marriage really is unless they are instructed by men who have no experience of it. 

Cordileone has never been accused of being bright; just suckupish.

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