Thursday, September 20, 2012
From the SCOTUSBlog same-sex marriage symposium, discussing how the Supreme Court should rule if the Court accepts Perry (the Proposition 8 case) or any of the DOMA cases, including Massachusetts v. United States Department of HHS and Gill v. Office of Personnel Management:
The suggestions of clearly articulated standards and rigorous analysis are not simply the fantasies of a law professor. While Supreme Court opinions need not be constitutional law examination answers, neither should they be confusing, or marred by sarcasm or sentimentality. Students studying law should be exposed to more Supreme Court opinions demonstrating trenchant analysis rather than rhetorical politics.
Clearly articulated standards might also allow the lower federal courts as well as the state courts to engage in their own rigorous analysis rather than attempt to discern the correct standard from Supreme Court precedents that are unclear, internally inconsistent, or point in several directions. This is not to say that the same-sex marriage issue should have been easily resolved by lower courts or that the applications of the standard are not difficult and value-laden. However, the grappling of the lower courts for several years now regarding the actual holding of Romer v. Evans, as well as Loving v. Virginia, could have been avoided.
The full post is here.