Today in the Community we’re discussing another question with general applicability to legal blogging:  the use of blogging to influence courts, including the Supreme Court.  When is it permissible – either as a question of formal legal ethics or in some sense morally – to write a post in the hope and/or expectation that it will influence the outcome of a case?  When is it realistic to believe a post will have that effect?  You can participate here; instructions on becoming a member of the community are here.

Among our five favorite comments from yesterday are these:

Andrew Koppelman

DOMA is doomed

The Supreme Court will probably strike down the Defense of Marriage Act (DOMA), which indiscriminately withholds federal recognition from same-sex marriages for all purposes – Social Security, health insurance for federal employees, family benefits for soldiers killed in action. Doing so would not be especially bold, since it won’t bring same-sex marriage to any state that does not want it. Justice Kennedy, the swing vote on the Court, wrote the majority opinion in a case that held a very similar law unconstitutional.

Romer v. Evans (1996) invalidated an amendment to the Colorado Constitution that authorized anyone in the state to discriminate against gay people. DOMA’s definitional provision and the law invalidated in Romer have telling similarities. Like the Colorado amendment, DOMA “identifies persons by a single trait [membership in a same-sex marriage] and then denies them protection across the board.” For the first time in American history, DOMA created a set of second-class marriages, valid under state law but void for all federal purposes. The indiscriminate exclusion of a class of valid state marriages from all federal recognition is “unprecedented in our jurisprudence.” DOMA cuts off benefits to a targeted, politically unpopular group, and it does so in a remarkably broad and undifferentiated way, just like the law in Romer. It is likely to meet the same fate.

Erwin Chemerinsky

The Supreme Court should, and I believe will, hold that the Constitution protects a right for marriage equality for gays and lesbians. The prohibition of same-sex marriage denies gays and lesbians equal protection and violates the fundamental right to marry. Having debated this issue many times and having read the various briefs, I always am struck by the lack of any legitimate government interest for denying gays and lesbians of the right to marry. At the oral argument in the Proposition 8 case, Judge Randy Smith twice asked the attorney defending the initiative as to what legitimate government interest is served by the prohibition of marriage equality. None is apparent. Mr. Cooper focused on how marriage is about procreation. But gays and lesbians will procreate with or without marriage – by adoption, surrogacy, and artificial insemination. Marriage is perceived as benefiting children by providing for family stability. Children of gay and lesbian couples should have this benefit too. Gays and lesbians should have the same right to express love and commitment, the same benefits under laws, the same ability to experience the joys and disappointments of marriage that heterosexuals always have had.

Brian Raum

With all of the challenges to DOMA and the Perry case making their way through the federal court system, it seems inevitable that one or more of these cases will be heard by the Supreme Court in the next couple of years. This is especially true should those seeking to redefine marriage prevail at the court of appeals level and would be even more likely if a circuit split on the issue develops.

But should the Supreme Court enter the fray in this most controversial of social debates? There has been much discussion in recent years concerning the proper role of the Court when it comes to crafting social policy. But this is no garden variety social issue. Marriage is our most foundational social institution and the redefinition of marriage in one state has profound constitutional and interstate implications. Consequently, the Supreme Court must at some point weigh in.

But the risk of Supreme Court review is great for both sides of the issue. An adverse ruling (for those who support natural marriage) could have devastating effects nationwide for those states that have laws protecting marriage. Depending on its scope, a sweeping adverse decision would have the potential to strike down all laws that define marriage as the union of a man and a woman.

Conversely, a decision upholding the constitutionality of marriage as historically understood would severely take the wind out of the sails of those who argue that it is irrational to believe that the government has legitimate interests in maintaining the all-but-universal definition of marriage. Moreover, should the Supreme Court confirm that rational basis review applies to these challenges (which it should), that will all the more set back the homosexual legal agenda on multiple levels.

It will be quite interesting to see how the battle for marriage plays out, and one cannot help but feel that this is a critical crossroads in the history of our country and our world.

Max Power

As a fairly active follower of the Court, I agree that DOMA will quite likely be struck down. However, the more interesting question in my mind is the likely vote tally. Given DOMA’s unprecedented intrusion into the states’ domestic-relations sphere, I would expect a staunch federalism buff such as Thomas vote to strike it down, alongside Kennedy and the four “liberal” Justices (perhaps in a separate concurrence that stresses federalism and eschews the Romer rationale). I find it hard to predict how the remaining three Justices will come down, although I have a gut feeling Alito would vote to uphold DOMA. Scalia is something of a wild card when it comes to federalism (see Raich), and I can’t guess what Roberts would do.

Cliff Palefsky

The oral argument in Greenwood was interesting in several respects. First, they seem to be focusing on whether the “right to sue” means the same as having a “cause of action”. That’s not really the right question because the fundamental right that is being lost is the right to have the law applied correctly. You might have the right to bring a cause of action in arbitration but that is of little import if the arbitrator isn’t bound to follow the law. The focus on the allegedly ‘procedural’ right to trial by jury is distracting the court from the real defining characteristic of arbitration and the real substantive and appelllate rights being “waived”. And of course, the right to sue in a public court with a minimal filing fee cannot be fairly equated with the ability to file an arbitration that requires the party to pay thousands of dollars in arbitrator fees. The right to an essentially free court is being waived. Few consumers and certainly someone needing credit can hardly afford the huge fees associated with arbitration.

And I thought the very best question of the argument was asked by Justice Sotomayor who made the point that the CROA permits and contemplates class actions and in light of Concepcion class actions cannot be pursued in arbitration. That point, so eloquently made, should end the discussion. The difference between a right to sue in court and the right to bring a cause of action in arbitration, involves the waiver of the ‘right’ to bring a class action as contemplated by the statute in addition to the waiver of the right to have the law enforced correctly.

Posted in Community

Recommended Citation: Tom Goldstein, Today in the Community: November 3, 2011, SCOTUSblog (Nov. 3, 2011, 9:37 AM),