Kagan on “Moral Disapproval” and DOMA

June 29th, 2013

Jeff Rosen asked Justice Kagan about her pivotal question from the DOMA oral argument, where she asked Paul Clement whether “moral disapproval” would result in the invalidation of the law. I have cited this question (also here) as the crux of the entire Windsor case. Justice Kagan’s response to Rosen’s question is interesting (here is my rough transcript).

It was kind of an obvious question. The Court has set this down as a principle of the equal protection clause, most recently in a case called Lawrence [JB: Lawrence was a due process case, not an equal protection case] Congress or a state can’t pass class legislation based simply on moral disapproval of a group, or animus, or fear, or disfavor, unless it has some basis in actual harm, unless there is a reason to think the public interest is furthered [JB: this was Jack Balkin’s take on the case].If all you have is moral disapproval  and a sense we just don’t like these people, then that is a violation of the equal protection clause. Justice Kennedy stated that really forcefully in his Lawrence decision [JB: O’Connor’s opinion was under equal protection. Kennedy was under due process.]

What’s interest ing about this is the set of opinions. The principal dissent stays away from that. It does not argue that simple moral disapproval is enough. It argues that there are other interests that are enough, like efficient administration  avoiding choice of law issues, etc. The question was meant to say, look, here we have some evidence of what actually was animating the congress that passed the law, and what evidence do we have that congress was motivated by neutral motivations, like efficient administration of the laws. Justice Kennedy’s opinion in Windsor suggested, in this case, there is every reason to think it was animated.

Rosen posed a question about “responsible procreation” argument in the Prop 8 case. She ducked the question, much like the Justices did in Perry.

We didn’t have to get to that, we found no standing. We never had to confront that question of whether there was a sufficient interest in that case. That will be left for another time. There may or may not be differences between what we just decided, and what we may have to decide in the future.