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University of the Pacific, McGeorge School of Law - Summer 2013

“I remain surprised they took the California case. The California case is pretty specific to our state, while the DOMA case has national ramifications because it is a federal statute.” —Professor Leslie Gielow Jacobs Because the Obama administration has declined to defend challenges to DOMA, a handful of congressional lawmakers intervened to defend the case in the government’s stead. This unusual step clearly has troubled the court. To help guide the court, the justices asked Harvard Law Professor Vicki Jackson to file an amicus brief arguing that the lawmakers do not have standing to challenge the case. In October 2012, the Second Circuit ruled that Section 3 of DOMA is unconstitutional, saying that laws that discriminate based on sexual orientation should be subjected to heightened judicial scrutiny. The California case raises similarly intriguing questions. “I have a hard time seeing them grant the California case for the purposes of upholding it and upholding same-sex marriage,” Jacobs says. “They would uphold it on very narrow grounds. I don’t see either of these cases framing a Brown v. Board of Education–type decision,” that is, a sweeping, unequivocal statement that reframes civil rights law, giving gays and lesbians their own federally protected class under the U.S. Constitution. Levine agrees. “If the Prop. 8 case is decided on the merits, I still don’t think it will be as far reaching as concluding the federal Constitution requires all states to give gays and lesbians access to marriage.” A more likely outcome, Levine says, is that we will continue with the patchwork advance of gays and lesbians to marry, state by state. Unlike other civil rights cases in our history that flew in the face of entrenched public sentiment, these cases will be heard at a time when public opinion is swinging rapidly to allow gays and lesbians to marry, Levine says. “When Boies and Olson first brought the case, some considered it premature. But in a few short years, things have changed dramatically. It is hard to imagine an area where so much has happened Professor Leslie Gielow Jacobs, director of the Capital Center for Public Law & Policy in such a short time, both as a matter of law and social debate.” “My own view is that we will have marriage equality in the United States, and not that far off,” Sims says. “What is hard to predict is the exact path that will be pursued.” Other than sharing that Kennedy will likely play a pivotal role in both cases, the Pacific McGeorge scholars have shied away from any predictions about how the cases will go. Even predicting an outcome based on oral arguments is risky, they say. “I never imagined that gay people would be allowed to legally marry in my lifetime,” Levine says. “It would be truly remarkable if the Supreme Court does, as it did in the context of interracial marriages, determine that all states must end the heterosexual marriage monopoly.” ◆ paci f i c l aw 21 e d a s m u s


University of the Pacific, McGeorge School of Law - Summer 2013
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