Tuesday, September 1, 2009

Professor Michael Dorf on The Federalism Trap in Same-Sex Marriage

Dorf on Law, by law professor Michael Dorf:

Dorf follows up with comments on an article in which he was quoted about lawsuits challenging the federal DOMA. Thanks to attorney Rick Xiao for alerting me to Dorf's comments.
The NLJ article (accurately) quotes me fretting about the risk that the Justices will not think the time is right to invalidate DOMA. But (as I also discussed with the article's author, Marcia Coyle), there is another risk as well: Massachusetts, which has also sued, could win on state sovereignty grounds. Hoping to duck the direct issue of same-sex marriage, the Court could hold that Congress has no business defining marriage because the law of domestic relations is within the reserved powers of the states. Indeed, Massachusetts urges just this result. Yet winning in this way would be a double-edged sword: If the Court strikes down DOMA Section 3 on the ground that the states get to define marriage, that very holding will be invoked by states that do not recognize same-sex marriage in resisting an argument that their laws deny equal protection.

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