Taming Exotic Beasts
One possibility (as Orin suggests in his comment to the previous post) is that this a rhetorical move. Characterizing a law as strange implies that finding it invalid will not endanger other laws. Or it simply prepares the ground for a conclusion of unconstitutionality by undermining the authority of the law.
Another thought is that an unusual law raises questions about its motivation. Why did the legislature pass this curiosity? Could be because they were trying to achieve an improper goal or circumvent a constitutional obstacle.
A third possibility that I’m wondering about is whether this is the modern version of the common law rule of “construing statutes in derogation of the common law narrowly.” In effect, tradition should be given considerable weight in interpretation. Marriage is always defined by state law, so a federal attempt to do so must be carefully scrutinized. Insurance mandates come only from the states, so a federal individual mandate should be read as a tax. And so on. The doctrine of reading statutes in derogation of common law narrowly, though, was heavily criticized in its day. So I’m thinking about tying those arguments to the recent cases.
BTW, my favorite example of the “strangeness” doctrine is Ives v. South Buffalo R.R. Co., in which the New York Court of Appeals struck down a workers’ compensation statute as unconstitutional under the state constitution. (This was the first case that I read in Torts as a 1L. Many of you who went to Yale Law School had the same experience.) After summarizing the law (in 1911), the Court said “[t]he statute, judged by our common-law standards, is plainly revolutionary.” Not something a lawyer defending the law wanted to hear, I imagine.