Whatever the merits of the federalism concerns I and others have raised about the Defense of Marriage Act (DOMA), the issue is garnering a fair amount of attention. Here’s a brief round-up of some recent commentary:
- Mike Dorf, “The Federalism Argument that Should Have Been Made Against DOMA” – arguing that DOMA’s opponents missed an opportunity at oral argument to appeal to Justice Kennedy with an embrace of federalism concerns;
- Jeffrey Rosen, “Flip-Flopping Federalists” – suggesting a tension between the usual conservative impulse to limit federal power and support for DOMA;
- John Eastman, “The Faux Federalism Argument Against DOMA” – as suggested by the title, an argument that DOMA presents no real federalism concerns (which is interesting coming from someone who has argued the federal government has no power to spend money beyond the scope of its enumerated powers);
- Geoff Stone, “The Same-Sex Marriage Cases: Snatching Victory . . .” – the federalism argument “makes no sense”
- Erwin Chemerinsky, “What Might Happen?” – the federalism argument, if adopted, would produce a “radical change” in constitutional law;
- Peter Lawler, “Same-Sex Marriage, Federalism, and Judicial Restraint” – noting the DOMA litigation rasises issues of both “judicial activism” and “congressional activism.”
- Ilya Shapiro, “If Supreme Court Has Jurisdiction, DOMA Likely Falls, With a Controlling Federalism Opinion from Kennedy Alone” – a rosy prediction.