Over at SCOTUSblog, there is yet another symposium/debate on gay marriage, specifically on whether/when/how and why laws banning it or barring recognition of it are likely to hit the dust. Combatants include
Carlos Ball – Rutgers University School of Law
Bob Barr - Former Representative for Georgia’s Seventh Congressional District
Thomas Berg – University of St. Thomas School of Law
Dale Carpenter – University of Minnesota Law School
Erwin Chemerinsky – UC Irvine School of Law
David Cruz – USC Gould School of Law
William C. Duncan – Marriage Law Foundation
John Eastman – Chapman University School of Law
William Eskridge – Yale Law School
Maggie Gallagher – Institute for Marriage and Public Policy
Charles Fried – Harvard Law School
Andrew Koppelman – Northwestern University School of Law
Pamela Karlan – Stanford Law School
Robert Levy – Cato Institute
Laurence Tribe – Harvard Law School
Brian Raum – Alliance Defense Fund
Ruthann Robson – CUNY School of Law
Robin Wilson – Washington & Lee School of Law
Kenji Yoshino – New York University School of Law
Here's a sane contribution – with which I happen to agree :>) – from Andy Koppelman:
The Court hasn’t recognized a new suspect classification in decades, but it won’t need to take that step in order to strike down [DoMA]. For non-suspect classifications, the constitutional test is what is called rational basis review: the law will be upheld in court if it is “rationally related to a legitimate state interest” (New Orleans v. Dukes). This usually means that the law will be upheld. In a few rare cases, however, the Court has used the rational basis test to strike down laws. In these cases, the Court deploys what scholars have called “rational basis with bite,” to distinguish it from the toothless test that is ordinarily applied. This is the basis on which the Court is likely to invalidate DOMA.
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