The Sum Of The Constitution’s Parts

Eric Posner analyzes the DOMA decision:

Kennedy’s opinion reminds me of two cases, both heavily criticized by constitutional scholars (for their reasoning, not necessarily their result). The first is 1965’s Griswold v. Connecticut, where the Supreme Court struck down a statute that prohibited the use of contraceptives, based on what Justice William O. Douglas called “emanations” from and “penumbras” of other constitutional provisions that said nothing about sex or contraception but did endorse other liberty interests. The second is 1990’s Employment Division v. Smith, where Justice Scalia, in the course of putting limits on the free exercise of religion doctrine of the first amendment, explained away some old cases on the grounds that they involved “hybrid rights”: The statutes in question were struck down not because they violated the religion clause per se, but because they burdened both the practice of religion and other constitutionally protected activities.

So there is this vague idea that certain constitutional interests standing alone may not invalidate statutes, but may suffice when combined together. Something like this idea might ultimately be the basis of Kennedy’s opinion. Gay people do not form a suspect class, but they almost do. Same-sex marriage is not a longstanding tradition, but same-sex relationships are. Federalism principles are not broken but they are eroded. Put together three almost violations, and you have a real violation.

Bazelon replies to Posner:

I think the groundwork Kennedy laid in the Colorado case (Romer v. Evans) and in Lawrence v. Texas is more solid than you do. The purpose of DOMA was about stigma and what the court has called “animus” against one group, for no reason other than dislike (which, really, amounts to prejudice). In my favorite moment of the argument in March, Justice Elena Kagan pointed out that DOMA “does something that’s really never been done before,” continuing, “I’m going to quote from the House report here: ‘Congress decided to reflect and honor collective moral judgment and to express moral disapproval of homosexuality.’ ”

She took the lawyer arguing to uphold DOMA, Bush Solicitor General Paul Clement, by surprise. “Does the House report say that?” Clement asked, before catching himself: “Of course the House report says that. And if that’s enough to invalidate the statute, then you should invalidate the statute.” He called it right there.