Intermediate Scrutiny

The Federal Defense of Marriage Act has already been held unconstitutional by a Federal Circuit Court of Appeals. Today’s decision from the Second Circuit following suit and consciously anticipating SCOTUS review applies the “intermediate scrutiny” standard and was authored by a judge usually thought to be very much on the conservative side.

It also presents an obviously tangible standing claim on emotionally compelling facts: eligibility for over $360,000 in tax refunds based on life insurance proceeds from the plaintiff’s wife. And it disposes with the troublesome Baker v. Carr question head-on, on federalism grounds, and proceeds to offer substantial dicta about substantial changes in doctrine underlying equal protections jurisprudence between 1971 and today.

For SSM junkies, this is worth a read. SCOTUS could in theory grant certiorari for this term, but that strikes me as unlikely to occur. Next term, however, seems like a pretty good bet.

Burt Likko

Pseudonymous Portlander. Homebrewer. Atheist. Recovering litigator. Recovering Republican. Recovering Catholic. Recovering divorcé. Recovering Former Editor-in-Chief of Ordinary Times. House Likko's Words: Scite Verum. Colite Iusticia. Vivere Con Gaudium.


  1. Burt, are there other instances of a state binding the federal gov’t?

    • A while ago, I read of a criminal case where the federal government was forced to accept a state’s definition of marriage in regards to spousal testimony, in regards to age of consent or consanguinity or something like that.

      My memories, however, are quite vague, and the Googles do nothing.

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