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2CA Strikes Down DOMA


Yet another conservative Republican judge has found Section 3 of DOMA unconstitutional.

To add briefly to what I wrote at the Prospect, the precedent Jacobs’s opinion heavily relies on has a great concurrence by Justice Stevens, in which he points out that the Court’s attempt to carve classifications into rigid categories for equal protection purposes 1)doesn’t really make sense on its face, and 2)doesn’t effectively describe that Court’s actual jurisprudence. Marshall’s concurrence/dissent also does a good job of explaining why the Court’s assertion that it wasn’t applying “heightened scrutiny” to the mental retardation classifications isn’t credible. The current state of sexual orientation and equal protection, in which the Court has essentially tried to define and apply multiple types of “rational basis” review, is a perfect illustration of all these points.

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