Balkin Predicts DOMA Survives Tauro

Prof. Jack Balkin of Yale thinks Judge Truro's opinion's striking down DOMA will not survive appeal:

Judge Tauro is way ahead of the national consensus on the the equal protection issue. Perhaps more importantly, his Tenth Amendment arguments prove entirely too much. As much as liberals might applaud the result, they should be aware that the logic of his arguments, taken seriously, would undermine the constitutionality of wide swaths of federal regulatory programs and seriously constrict federal regulatory power.

There is much to admire in Judge Touro's bravery in writing these opinions, and in his forthright declaration that the federal government's policy is unjust and unreasonable. His two opinions are wild, audacious, and fearless in their logic. But for the same reason, they will and should be quickly overturned. I believe that the civil rights of gays and lesbians will someday be vindicated by legislatures and courts. But not in this way.

Jack is not a natural pessimist, so I'm inclined to take his views on this very seriously.

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