DOMA and Heightened Scrutiny

Gerard Magliocca

Gerard N. Magliocca is the Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law. Professor Magliocca is the author of three books and over twenty articles on constitutional law and intellectual property. He received his undergraduate degree from Stanford, his law degree from Yale, and joined the faculty after two years as an attorney at Covington and Burling and one year as a law clerk for Judge Guido Calabresi on the United States Court of Appeals for the Second Circuit. Professor Magliocca has received the Best New Professor Award and the Black Cane (Most Outstanding Professor) from the student body, and in 2008 held the Fulbright-Dow Distinguished Research Chair of the Roosevelt Study Center in Middelburg, The Netherlands. He was elected to the American Law Institute (ALI) in 2013.

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1 Response

  1. Anon says:

    Professor Magliocca,

    Interesting post.

    It seems to me, however, that while you suggest that “[u]nder rational basis, I do not see how that conclusion can be correct,” you do not identify precisely what the rational basis that supports your viewpoint is. In short, I think it would be interesting for your readers to know which of the reasons provided by the proponents of Prop 8 (or any other reason you can come up with), in your view, supports such a conclusion. A few suggestions advanced by the proponents of Prop 8 included: proceeding with caution when implementing social change; promoting opposite-sex parenting over same-sex parenting; protecting the freedom of those who oppose marriage for same-sex couples; “protecting our children”; and encouraging “accidental procreation.” I simply cannot understand why any of these theories satisfy a rational basis inquiry (nor have I heard other convincing arguments elsewhere). I welcome your thoughts on the matter.