In anticipation of his presentation during a session on "The Constitutional Politics of Equality" during the upcoming conference at the University of Texas School of Law, The Constitution in 2020: The Future of Equality, Associate Professor NeJaime wrote the following blog post for Balkinization.
Popular accounts and media commentary on the federal suits challenging the Defense of Marriage Act (DOMA) and California's Proposition 8 focus largely on the inevitable march toward marriage equality. Implicit in such accounts is a claim about the impact of favorable court decisions on the LGBT rights agenda. After a district court victory in the Massachusetts DOMA case and the more recent announcement by Attorney General Holder that DOMA is unconstitutional under an appropriately heightened standard, the toppling of the federal ban seems imminent. After the district court's decisive blow to Prop. 8 in the Perry v. Schwarzenegger litigation and a Ninth Circuit oral argument before a generally receptive panel, commentators have focused on the impact of positive judicial intervention on same-sex couples in California.
Read the complete post at Balkinization.