A Harvard constitutional law professor writing in the New York Times predicts the U.S. Supreme Court will strike down DOMA, the federal Defense of Marriage Act, if the court takes the case this term. Michael J. Klarman, who is also a legal historian, offers several scenarios that might lead even conservative justices on the court to declare — as several federal courts have already — that DOMA is unconstitutional.
“Conservative justices who value federalism and liberal justices who sympathize with gay marriage will probably combine to invalidate the act,” Klarman writes, in his Times op-ed, “Gay Rights May Get Its Brown v. Board of Education.”
“On one hand, some judges — notably Justice Antonin Scalia — think the constitutional case for same-sex marriage obviously fails because nobody in 1868, when the 14th Amendment was ratified, dreamed that its equal protection clause applied to gay marriage. The right to marriage, which is deeply rooted in American history, was traditionally limited to opposite-sex couples. And there is no Supreme Court precedent subjecting laws that classify based on sexual orientation to the rigorous judicial scrutiny that has been applied to classifications based on race or sex.”
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