The First Circuit Invalidates Part of DOMA

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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2 Responses

  1. Joe says:

    I agree it’s a good opinion but disagree that the 9th Cir. was “slapdash” though we will have to respectively disagree on the latter.

    The 9th Cir. in part rested on rational basis with bite, which seems to confuse even some law professors in some ways (general statement there), and it’s good that it clearly stated this concept that the USSC has used in recent years.

    The federalism section (which the judge below used too to some eyebrow raising) is to me nifty really & even convincing but its really no more crafty than what the 9th Cir. did. Kennedy in Lopez might have agreed that ‘traditional state functions’ should cause courts to be more dubious in cases of this type, but it requires applying dicta in various cases to get there.

  2. Kent says:

    While, in this case, it took the court until the second sentence to show their cards, I still think the general rule, that you can usually tell the outcome of a decision by the first sentence, holds true.

    The second sentence reads: “the appeals contest the right of Congress to undercut the choices made by same-sex couples and by individual states in deciding who can be married to whom.”