Popular Constitutionalism and the Cascade of Gay-Rights Opinions

June 10th, 2012

Boy, when it rains it pours. Within the span of one week, the Ninth Circuit denies rehearing en banc in the Prop 8 case. The First Circuit, per Judge Boudin (one of Bush 41’s most respected appointments) finds that DOMA is unconstitutional. A few days later, the SDNY declared DOMA unconstitutional. What is with this torrent of change?

Let’s break down the time line.

  • Bowers v. Hardwick came down in 1986.
  • Romer v. Evans came down on May 20, 1996.
  • Four months later (I didn’t realize it was this close till i googled it) DOMA was enacted, after limited debate, and signed into law by a Democratic President and supported by a Bipartisan Congress.
  • Lawrence v. Texas came down in 2003.
  • Prop 8 was voted into law November 2008.
  • The Iowa Supreme Court in April 2009 recognized a right to same sex marriage in the state constitution. The Justices were severely criticized, and several were removed after the next election.
And things changed. Eric Holder issues his nebulous statement on DOMA on February 23, 2011.
Shortly thereafter, a string of court victories turned in the other direction. The 9th Circuit struck down Prop 8. Several federal courts struck down DOMA. The President (perhaps forced by a glib comment by the VIce President) came out with the position we all knew he had–he was in favor of SSM (but left it to the states to determine what they wanted to do).¬†This is what Cass Sunstein may call a cascade.
You know this is on a path to the Supreme Court. And if this cascade continues, I don’t think the opinion can come out any other way.

I don’t think you can overstate the importance of the Holder Memo. It changed the politics, as for the first time, a major political party got behind the gay-rights movement. Don’t forget, Bill Clinton signed DOMA!

I draw many parallels with the litigation over the Affordable Care Act–though on a much more accelerated pace. Once the major GOP establishment got behind the ACA challenge, a cascade began. Federal district court judges accepted the argument and started to strike down the law. With this cascade, it was on a collision course with the Supreme Court.

I’ll explore this a bit more in my book.