Beyond Thunder DOMA

And the inevitable Supreme Court case on the federal Defense Of Marriage Act got one step closer today as a three-judge panel on the First Circuit just declared the law unconstitutional.

A three judge panel of The United States Court of Appeals for the First Circuit just handed down a decision declaring the anti-gay Defense of Marriage Act unconstitutional. Notably, the panel included Judges Juan Torruella and Michael Boudin, both of whom are Republican appointees. Judge Boudin, who authored the opinion, is one of the most highly regarded judges in the country; he frequently sends his former law clerks to clerk for Supreme Court justices.

Here’s the money quote from the ruling linked above (PDF, emphasis mine):

For 150 years, this desire to maintain tradition would alone have been justification enough for almost any statute. This judicial deference has a distinguished lineage, including suchfigures as Justice Holmes, the second Justice Harlan, and Judges Learned Hand and Henry Friendly. But Supreme Court decisions in the last fifty years call for closer scrutiny of government action touching upon minority group interests and of federal action in areas of traditional state concern.

To conclude, many Americans believe that marriage is the union of a man and a woman, and most Americans live in states where that is the law today. One virtue of federalism is that it permits this diversity of governance based on local choice, but this applies as well to the states that have chosen to legalize same-sex marriage. Under current Supreme Court authority, Congress’ denial of federal benefits to same-sex couples lawfully married in Massachusetts has not been adequately supported by any permissible federal interest.

Both the “closer scrutiny” Fifth Amendment and the “permissible federal interest” Tenth Amendment arguments are key to taking down DOMA.  The basic argument is that the federal government has a duty to protect minority groups under the Equal Protection clause, and that same-sex couples meet the standard of a minority group that needs equal protection, and as such the denial of federal marriage benefits specifically to same-sex couples violates that equal protection when the state, in this case Massachusetts, makes those benefits at the state level legal.  It’s the scope of how far that applies (if it’s just to states where same-sex marriage is legal or all 50 states) that seems to be the question the panel is leaving up to SCOTUS to chew over, but they definitely accept the argument as valid.

The ruling also spells out pretty plainly that in the end, only SCOTUS can decide this one.  But seeing the lower court ruling affirmed here is a definite point for the good guys.

66 replies
  1. 1
    Forum Transmitted Disease says:

    This Supreme Court will never find DOMA unconstitutional.

    And if Obama does not win reelection, Romney gets to fill at least two vacancies, and it will not be overturned in my lifetime.

  2. 2
    Forum Transmitted Disease says:

    But seeing the lower court ruling affirmed here is a definite point for the good guys.

    Wishful thinking. Since 2000, this has been the Calvinball court. Precedent means nothing when there’s some fags to bash, some voters to disenfranchise, some crooked cops to protect, some workers to crush, some elections to steal.

  3. 3
    Brian R. says:

    Hell of a title.

  4. 4
    Jay C says:

    I think it is, at best, insane foolishness to believe that the present Supreme Court would even think about striking down DOMA, or ANY state or Federal statute that would limit marriage discrimination in the least. A court with creatures like Antonin Scalia and Samuel Alito on it? Justices who have made it quite clear that they could care less about anti-gay discrimination in ANY form, as long as it has even the vaguest veneer of “religion” or “morality” to back it up?

    Unfortunately, “federalism” issues do, in this case, cut both ways: either the “full faith and credit” clause requires all states to recognize a marriage “contract” legal in any of them, or else DOMA is valid as some sort of exception to the rule.

    It really is a flipped version of the Dred Scott case. And it is (IMHO) overly optimistic to assume that the SCOTUS will rule on the “right” side this time, either…

  5. 5
    scav says:

    They’re really going to have to march under those “States Rights! Only if We Agree To Them!” banner, aren’t they?

  6. 6
    Stuck in the Funhouse says:

    The ruling also spells out pretty plainly that in the end, only SCOTUS can decide this one. But seeing the lower court ruling affirmed here is a definite point for the good guys.

    For most issues, I don’t think it matters much what the lower courts do, juxtaposed with the SCOTUS as the final arbiter. But in this case, the courts are attempting to define a constitutional “right”, in the face of real discrimination experienced by millions of citizens denied the right to marry, and to be miserable like everyone else/kidding,mostly.

    So every lower court stamp of approval for providing a long denied constitutional right, should make it more difficult for the court wingers, and Catholics, to stand alone in defending discrimination and granting it permission to continue ad infinitum . Kennedy is much too chickenshit to side with that. Even though he would like to, imo.

  7. 7
    gene108 says:

    Judges Juan Torruella and Michael Boudin, both of whom are Republican appointees

    Torruella being appointed by Reagan may be some cover against judicial activism charges*, but a Papa Bush appointee is basically the same as a Clinton or Carter appointee, with regards to how liberal they are in the eyes of modern wing-nuts.

    *I don’t expect a lot of cover, just saying a Reagan liked the guy and appointed him may buy a few seconds of relief from your local wing-nut mouth breather.

  8. 8
    ruemara says:

    Unlike most of the prior commentators, who make fair statements on the Roberts Court, I will instead take great joy in this moment. Makes me damned happy. If this does not get you, your friends and your families off your ass to ensure you’re able to vote and make voting parties and take days off to vote, then I don’t know what will. To keep your freedom, you should be looking at this and saying, “Alright then, I will make sure that the next court is not a collection of power drunk fools”.

  9. 9
    Anonymous At Work says:

    It’s well-written, cited recent Supreme Court precedent well, and, in places, turns conservatives’ “Federalist” rhetoric around on them. However, all of that is pointless if Justice Kennedy finds gay marriage too “icky” to uphold.

  10. 10
    jheartney says:

    @gene108: This is a defining issue for wingnuts. Either y’er with em or agin em, with no middle ground. Boudin and Torruella are now RINO traitors, may as well be Che Guevara in the eyes of your local wingnut.

    More proof that the upcoming election will settle the course of the country for a generation.

  11. 11
    dr. bloor says:

    Methinks Judge Boudin is about to find out how little authentic conservatism has to do with the brand being dished out by his betters on the SCOTUS.

  12. 12
    Forum Transmitted Disease says:

    Goddamned Word Press moderation. What the hell?

  13. 13
    Jay C says:

    @ruemara:

    To keep your freedom, you should be looking at this and saying, “Alright then, I will make sure that the next court is not a collection of power drunk fools”.

    I quite agree with your sentiments, however the reality is that an unfortunately large percentage of our fellow citizens would apply this view (if they don’t already do) to a SCOTUS that would strike down the DOMA: the power-drunk foolery in this case being that which would force them to abandon homophobic bigotry as a legal principle in laws regarding marriage in their states. Like I said in #3, it cuts both ways…

    But yes: insuring that there won;t be any more Nino Scalias nominated to the SC for at least the next four years ought to be ANY thinking person’s priority.

  14. 14
    Mike Goetz says:

    There is actually a very good chance in my opinion that the Supremes invalidate DOMA. If there is one area in which Kennedy can be said to be consistently on the center-left it is with respect to the rights of gays and lesbians (Romer, Lawrence). I bet he is the deciding vote to strike down next term.

  15. 15
    Davis X. Machina says:

    @Jay C:

    But yes: insuring that there won;t be any more Nino Scalias nominated to the SC for at least the next four years ought to be ANY thinking person’s priority

    You need a majority, though,

  16. 16
    Burnspbesq says:

    Two different judges on the District Court for the Northern District of California have also recently found Section 3 of DOMA unconstitutional, and in both cases went against long-standing Ninth Circuit precedent in determining that a higher standard than rational basis should be applied to Equal Protection claims based on sexual orientation. Interestingly, the District Cout said that subsequent Supreme Court decisions had undercut the Ninth Circuit’s view on standard of review.

    It’s by no means certain that the Supremes will take Gill or Massachusetts v. DHHS. They could decide to wait for the cases that are percolating up from the Ninth Circuit. If the Ninth Circuit sticks to its guns and says rational-basis is the correct standard of review, then you would have a circuit split, which is the classic justification for the Supreme Court to take a case.

    What is clear from the First Circuit’s opinion is that the standard of review is outcome-determinative. There is no way plaintiffs win if the standard of review is rational-basis

  17. 17
    yopd1 says:

    The fact that the 10th Amendment was part of the reason it was found unconstitutional must be blowing the minds of Conservatives.

  18. 18
    Mike Goetz says:

    OT, but still Boston-related, I just got back from an Axelrod press conference on the steps of the capitol here. It was something of a zoo, with a little cadre of Romney supporters holding “Obama Isn’t Working” signs (including one in a Gumby costume, for some reason). Most of the Romneyites, 90% I’d say, were twentysomething white frat boys. Much cheering for Obama and Warren. Axelrod looks a little different IRL.

  19. 19
    Hill Dweller says:

    @Mike Goetz: I think the Romney people were actually paid staff/interns from his campaign.

  20. 20
    yopd1 says:

    @Mike Goetz: I actually read about it on twitter, some are calling it another Brooks Brothers Riot.

  21. 21
    David Hunt says:

    In an ideal world, the Supreme Court wouldn’t even grant cert to hear the appeal (unless it was to for the purpose of ruling DOMA unconstitutional in all jurisdictions). It takes four Justices to agree to hear the case. Given the makeup of this court, I’m sure that we can all name four Justices that will gladly grant cert with the plan of enshrining DOMA with their blessing.

  22. 22
    Brachiator says:

    Great thread title!

    The basic argument is that the federal government has a duty to protect minority groups under the Equal Protection clause, and that same-sex couples meet the standard of a minority group that needs equal protection

    I am going to have to read more of the opinions, but I think that this is a shaky legal principle. It would be like saying that you have to protect Latinos, but then if they become the numeric majority, then they no longer need protection.

    I prefer the logic of opinions that state that gay people are citizens, period, and that all citizens are entitled to civil rights, and that there is no compelling state reason to deny marriage rights to gays.

    see for example, the California Supreme Court ruling in regard to California Prop 109

  23. 23
    Mike Goetz says:

    @yopd1:

    It wasn’t really that. Just maybe a couple of dozen people making some noise.

  24. 24
    Roger Moore says:

    @Burnspbesq:

    There is no way plaintiffs win if the standard of review is rational-basis

    I find that odd, but only because I can’t think of a rational basis for discriminating against gay couples. All of the reasons I’ve seen seem to be emotional rather than rational. Of course I also can’t see how DOMA is constitutional under the “full faith and credit” clause, so maybe there’s something I’m missing.

  25. 25
    Mike Goetz says:

    @Hill Dweller:

    Makes sense. There was a sense of uniformity and pre-planning to what they were doing.

  26. 26
    gaz says:

    I’m wondering about the wisdom of bringing cases like these to the courts right now. It seems easy enough to appeal all the way to the supreme court, where our bought and paid for judges will likely rule in favor of bigotry and the curtailing of freedoms – sadly, and ironically, citing the principle of freedom in the majority opinion.

    While I know it sucks, would it not be better to shelve these types of cases until after some of the nasties on the Roberts Court die off or retire?

    I don’t claim that as an answer, I’m merely posing the question. Food for thought.

  27. 27
    Gex says:

    Five Catholics on the USSC. Not feeling great about it. I fear the Roberts Court will go down in history that decided corporations are fully human, but I’m not. (Since the USSC has already called marriage a fundamental human right.)

  28. 28
    buskertype says:

    all very interesting, but clearly this is a hoax, as there is no way that “Learned Hand” and “Henry Friendly” are real judges. An elaborate hoax, considering that they made a wikipedia page for each of them.

  29. 29
    burnspbesq says:

    @Roger Moore:

    From the opinion (page 14):

    Under such a rational basis standard, the Gill plaintiffs cannot prevail. Consider only one of the several justifications for DOMA offered by Congress itself, namely, that broadening the definition of marriage will reduce tax revenues and increase social security payments.

    Rational basis is a highly deferential standard. When it applies, statutes are almost never found to violate due process or equal protection.

  30. 30
    Roger Moore says:

    @gaz:
    I don’t think there’s anything that would strictly forbid people from bringing the cases again if the composition of the Court changes. As far as I can see, the biggest risk of bringing this kind of case now is that the Court will take advantage of it to make a broader than necessary ruling overturning Lawrence or something equally nasty. Of course, there’s nothing that would prevent bigots from trying to pass new anti-sodomy laws and bringing them to the Court themselves, so it seems like a relatively minor downside.

  31. 31
    Maude says:

    @ruemara:
    I felt my heart beat a bit faster when I read the post. Mob rule defeated again.

  32. 32
    ruemara says:

    @Gex: You know, there are many catholics who are pro-gay rights. There’s also a large contingent of gay in the neo-con movement because selfish greedy bastardy knows no sexual identity. These are corporatist catholics with the barest sliver of actual morality. The money portion of their self interest should never be counted out. The goal is to make Democratic party membership and voting extinct in the next few years. I see no reason to keep DOMA when it would help out in the general.

    @Jay C: There really are more of us than there are of them. We just don’t vote. Both parties are corrupt, yadda, yadda.

  33. 33
    Gex says:

    @gene108: Many findings for SSM at the state level were decided by Republican appointed judges. The current right doesn’t give a shit. They’ve ousted a couple of the justices in Iowa. The great thing about the Overton Window is that what was formerly pretty far right can become soshalist/Marxist totalitarianism. So yes, the details about the judges who find for gay rights are utterly irrelevant to the GOP/Big Religion folks.

  34. 34
    elmo says:

    @Davis X. Machina:

    Thanks, Adlai.

  35. 35
    Davis X. Machina says:

    @elmo: You’re welcome…. any cobblers around here?

  36. 36
    Roger Moore says:

    @burnspbesq:
    OK, I can’t argue with that.

  37. 37
    Gex says:

    @gaz:. This sounds like it’s on the cusp of blaming gay people if this USSC enshrines discrimination against gays. We didn’t get where we are now by waiting for everyone to change their minds. We’re here now because we forced the issue.

  38. 38
    kerFuFFler says:

    What I just don’t get about this issue is why DOMA is not seen as an example of the federal government improperly discriminating against all the religious denominations that ARE eager to perform gay marriages. It seems like an important issue of religious freedom to me!

  39. 39
    Mary says:

    @Gex:

    Five Catholics on the USSC.

    Six, actually.

  40. 40
    Bulworth says:

    But Supreme Court decisions in the last fifty years call for closer scrutiny of government action touching upon minority group interests and of federal action in areas of traditional state concern.

    Activist judgistists! Less govern…I mean, Moral Values!

  41. 41
    gaz says:

    @Roger Moore: A good point that it can begin with the wingnuts themselves, and yes, your comment about the court taking the opportunity to codify an overly broad and ugly attack on actual freedom basically speaks directly to my fear of bringing things before scotus.

    As an aside, I’m not a lawyer, and I haven’t slept in a holiday inn (ever), but I remember from somewhere that judges are supposed to avoid even the appearance of impropriety. You’d think our SCOTUS judges would be more beholden to that standard than even the judges of lower courts. On those grounds alone, Clarence should be ridden out on a rail. I also find it disheartening that Anthony Weiner’s attempt to bring an investigation into Clarence’s ethics violations seems to have been shelved indefinitely. Fuck that – it was a step in the right direction. I’m pissed at Wiener for thinking with his dick when he should have damn well known better than that considering he was taking on an extremely powerful member of our govt, but I’m also angry at the rest of the party for not continuing where he left off. Cowards and fools, the lot of them.

  42. 42
    RalfW says:

    @jheartney:

    More proof that the upcoming election will settle the course of the country for a generation.

    As regards who gets to appoint SCOTUS justices, yes.

    As regards the horrible politics afflicting our nation generally? No such luck.

    Obama winning a second term will probably push the 27%ers into outright sedition. Romney winning will push the nation to the brink of facism, possibly to recoil in horror, possibly to fall headlong into a miserable failed state.

    It will be epic, but not settled, as I see it.

    -*

    Meanwhile, this is a solid bit of adjudication, and I am happy about it. So I’m not totally gloomy.

  43. 43
    Gex says:

    @ruemara: On the Court? I wasn’t generalizing about Catholics, I was describing the Justices we have. Untwist your undies. For fuck’s sake.

    If 85% of voters are Christian, and every direct vote has found a *minimum* of 60% willing to pass amendments, it would be entirely fair to me to characterize not just Catholics, but Christians as generally anti-gay, and I can do so without believing all are anti-gay. Further, a large portion of the money for these amendments came from the RCC through NOM and other cover organizations. So give me a fucking break. In ths entire issue, I hardly think I am the one in this debate that needs to be criticized for being mean. Tone concern trolling is duly noted.

  44. 44
    Mark S. says:

    I could see Kennedy going along with this opinion. It’s narrow enough, and just says that the Federal government can’t deny legally married same-sex spouses the same federal benefits it gives to all other spouses.

  45. 45
    burnspbesq says:

    Not entirely unrelated, the latest bit of spectacular insanity from Amity Shlaes.

    http://www.bloomberg.com/news/.....t-sue.html

    Stockholm Syndrome much, Ms. Shlaes?

  46. 46
    ruemara says:

    @Gex: Good god. I respond nicely and that’s how you take it. Double fuck you right back. As far as tone concern, you are an idiot. Nothing in what I said was concern trolling you or anyone else. Read it again, it’s about the role of this decision within conservative party politics. Jesus, it’s fucking cogent political observation and not about you.

  47. 47
    schnooten says:

    @burnspbesq:

    First, starting with the most concrete of the cited reasons–“preserving scarce government resources”–it is said that DOMA will save money for the federal government by limiting tax savings and avoiding social security and other payments to spouses. This may well be true, or at least might have been thought true; more detailed recent analysis indicates that DOMA is more likely on a net basis to cost the government money.
    But, where the distinction is drawn against a historically disadvantaged group and has no other basis, Supreme Court precedent marks this as a reason undermining rather than bolstering the distinction. The reason, derived from equal protection analysis, is that such a group has historically been less able to protect itself through the political process.

    I feel like this flies in the face of their prior admonition, and their later statement that they had not found a suspect classification.

  48. 48
    Quincy says:

    @Mike Goetz: I agree with this. I don’t think Kennedy is ready to strike down state laws banning same-sex marriage, but I actually expect him to vote with us on DOMA. So if the Court gets rid of the ACA next month, we’ll be subject to a summer of hearing about how awful it is to criticize/bully/politicize the Court and the fundamental importance of States’ rights/the 10th Amendment. Then next year, when DOMA goes down, we’ll be back to the usual tropes about judicial activism.

  49. 49
    burnspbesq says:

    @Gex:

    a large portion of the money for these amendments came from the RCC through NOM and other cover organizations

    Got proof, or are you just MSU?

  50. 50
    Gex says:

    @ruemara: My bad. I am so used to getting just pounded when I criticized the RCC that I read you wrong. My apologies.

  51. 51
    RalfW says:

    @kerFuFFler:

    The wingeratti think that Reform Jews, UCC, UUs and other gay-loving denominations (yay!) are at best totally misunderstanding g-d and the Bible, and at worst, in the thrall of Satan.

    It’s not corporate Catholicism or inerrant Bible protestantism, so there is no religious freedom issue to them as all religiously liberal denominations are fraudulent.

  52. 52
    Forum Transmitted Disease says:

    Obama winning a second term will probably push the 27%ers into outright sedition.

    @RalfW: I’m hoping for this, to be honest. We’ll see how their “Second Amendment Remedies” hold up against the United States Army. My bet is not too well.

    There’s a deep infection of racist/religious/stupid in this country, and instead of pretending it doesn’t exist, or pretending that “opinions differ”, it needs to be brought into the sunlight, excised and dealt with. Open sedition would allow that opportunity.

  53. 53
    RalfW says:

    @burnspbesq:

    This money hasn’t gone to NOM that I know of, but here in Minnesota, on top of a $400,000 anti-SSM DVD campaign, here’s some official Catholic spending:

    Catholic group raised $750,000
    The Catholic group in turn raised $750,000, $50,000 each from the diocese of New Ulm and Duluth and the rest from the Twin Cities Archdiocese

  54. 54
    burnspbesq says:

    @schnooten:

    I think this just highlights the inherent difficulty in drawing the lines that the Supreme Court’s 20th-century due process and equal protection jurisprudence forces lower courts to draw.

    When you have a suspect classification, the analysis is pretty easy; we know (or at least we think we know) what is and isn’t a compelling state interest.

    Similarly, once it is determined that rational basis is the correct standard of review, the analysis is pretty easy; Congress can pretty much make shit up, put it in Section 1 of the bill as a supposed “factual finding,” and unless it’s utterly implausible to any sentient being, it’s likely to stand.

    Everything in between is a trackless wasteland. Once you identify some classification that is not “suspect” but for some reason feels like it doesn’t justify discrimination, now what? Okay, “heightened scrutiny,” but heightened by how much? And what principle can you point to that tells you that “this much more” is the right answer and “that much more” is the wrong answer? And once you’re somehow able to figure out how much more scrutiny is enough, how do you decide whether a particular exercise of government power is distateful enough to strike down? Damned if I know.

    If I were All-Powerful Lord Chief Justice, I would say “enough of this shit; there are only two standards of review, and these are the suspect classifications.” And my personal view is that sexual orientation ought to be a suspect classification; there is an emerging body of scientific research that suggests that it is every bit as immutable as race or gender. I rather doubt that the current Supreme Court is ready to go there.

  55. 55
    burnspbesq says:

    @RalfW:

    The Catholic group in turn raised $750,000, $50,000 each from the diocese of New Ulm and Duluth and the rest from the Twin Cities Archdiocese

    Lovely. Excuse me while I spit on the ground and rail at the stupidity of my co-religionists.

  56. 56
    Roger Moore says:

    @RalfW:

    Obama winning a second term will probably push the 27%ers into outright sedition.

    I have a hard time distinguishing that from what they’re doing now. I’d be happier with them saying outright that they refuse to accept the legitimacy of the President than their current course of doing everything they can to undermine him while pretending they care about the country. So long as they don’t engage in violent rebellion, I’d rather see them own up to what they’re doing.

  57. 57
    Punchy says:

    As regards who gets to appoint SCOTUS justices, yes.

    Not exactly. As regards to gets to nominate justices, yep. But if you think an even more insane GOP is going to vote to let Obummer appoint anyone to the left of Erik Son of Erik to the bench, you’re crazy. They’ll bottle up any nommy for months. Many months, I suspect. I’ve read elsewhere that they could, in theory, forestall a justice for more than a year using filibusters. Unless Harry invokes the nuke.

  58. 58
    burnspbesq says:

    @Punchy:

    Unless Harry invokes the nuke.

    In my more optimistic moments, I like to tell myself that Reid finally has gotten it, and that if he is still Majority Leader come January we will see some changes that will restore the Senate to some semblance of functionality. We’ll see.

  59. 59
    Davis X. Machina says:

    @burnspbesq: Hear, hear. Can you create a suspect classification by statute at the federal level? Or must it be divined only by justices peering into footnote four of Carolene Products, like Roman haruspices examining a liver?

  60. 60
    Roger Moore says:

    @burnspbesq:

    Similarly, once it is determined that rational basis is the correct standard of review, the analysis is pretty easy; Congress can pretty much make shit up, put it in Section 1 of the bill as a supposed “factual finding,” and unless it’s utterly implausible to any sentient being, it’s likely to stand.

    So “rational basis” is legalese for “plausible excuse”?

  61. 61
    Davis X. Machina says:

    @Roger Moore: The opposite of ‘rational’ is ‘irrational’, which is a synonym for ‘nuts’, so basically any non-insane basis will count as rational.

    ~~A = A.

  62. 62
    David Koch says:

    I tip my hat.

    That’s a pretty clever title.

    Well done.

  63. 63
    doktarr says:

    @Jay C:

    I think it is, at best, insane foolishness to believe that the present Supreme Court would even think about striking down DOMA, or ANY state or Federal statute that would limit marriage discrimination in the least. A court with creatures like Antonin Scalia and Samuel Alito on it? Justices who have made it quite clear that they could care less about anti-gay discrimination in ANY form, as long as it has even the vaguest veneer of “religion” or “morality” to back it up?,

    Anthony Kennedy, on the other hand, has authored two major decisions reinforcing gay rights.

    This has the makings of a 5-4 decision with Kennedy joining the liberal wing.

  64. 64
    Ronzoni Rigatoni says:

    Dang! Long before the issue of the same sex marriage issue, I read a long article, I think in the New Yawker, re the “married filed jointly” item in the tax law that was in fact a religious test for favorable treatment. Made sense to me at the time, and I had 3 little kiddies and a wife. Born in 1942, I am a member of Brokaw’s “Greatest Generation” (not a baby boomer) even though I shit myself for much of WWII (I don’t think I was alone, and it was really not my fault. Nobody ever told me this was disgusting until a coupla years later). I’ve always been uncomfortable about religious tenets written into law anywhere given the US Constitution, and I am solidly in favor of removing the BS by recognizing the same goddam rights for everybody.

  65. 65
    burnspbesq says:

    @Roger Moore:

    So “rational basis” is legalese for “plausible excuse”?

    That’s about right.

  66. 66
    burnspbesq says:

    @Davis X. Machina:

    Can you create a suspect classification by statute at the federal level? Or must it be divined only by justices peering into footnote four of Carolene Products, like Roman haruspices examining a liver?

    Congress can, and does, pass legislation that prohibits discrimination on the basis of race, gender, religion, and other classifications. It’s been trying for years to pass legislation that prohibits certain kinds of discrimination based on sexual orientation (ENDA ring any bells?).

    Whether a particular piece of federal or state legislation denies a class of persons either due process or equal protection is a matter of Constitutional interpretation, which is generally left to the courts.

    It is theoretically possible to amend the Constitution to prohibit discrimination based on sexual orientation, but I’d guess that you and I probably have roughly similar estimates of the likelihood of such an amendment getting through both houses of Congress and 38 state legislatures.

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