Victoria Pynchon: Would Justice Thomas Strike Down DOMA?
It's a good question, although the article never gets around to answering it in any serious way. Because the equal protection clause as an original matter doesn't appear to apply to the federal government (see this post by Mike Rappaport), the main modern arguments against DOMA, as I understand them, depend on non-originalist precedent. (See this extended symposium on same-sex marriage at SCOTUS Blog, which to the extent it discusses DOMA is mostly about the equal protection clause). The article seems to think that Justice Thomas' federalism positions, fairly applied, would require invalidation of DOMA, but I have my doubts. Still, I haven't thought closely about DOMA's basis in the federal government's enumerated powers. So it is a question to think about.
Posted at 7:00 AM