Justice Kennedy and other members of the United States Supreme Court appear to be looking for a way to strike down the Defense of Marriage Act (DOMA) and California’s Proposition 8 that will not set a precedent for all state laws banning same-sex marriage, said Michael Dorf, Robert S. Stevens Professor of Law, during an informal presentation at the Law School.
With cases on both DOMA and Prop 8, United States v. Windsor and Hollingsworth v. Perry respectively, pending before the Supreme Court, students packed the Saperston Student Lounge on April 10 to hear the insights of Dorf and Arthur Eisenberg ’68.
Eisenberg, the legal director of the New York Civil Liberties Union, has been involved in more than twenty cases presented to the Supreme Court, including Windsor. Dorf, who has written several books and dozens of law review articles on constitutional law and related subjects and served as a law clerk for Justice Kennedy, has contributed to amicus briefs on both Windsor and Perry.
During oral arguments on Perry at the end of March, Dorf observed, the justices seemed to regret that the Court had accepted the case; nor are they the only parties with misgivings. An occasional unofficial consultant to the ACLU’s LGBT rights arm and other such groups for about twenty years, Dorf noted that the lawyers who initiated Perry were not insiders of the LGBT litigation community. In general, he said, that community has favored battling same-sex marriage bans state-by-state, fearing that an adverse ruling in the Supreme Court could set efforts back a decade.
The Court itself, both speakers suggested, may try to avoid directly addressing the constitutionality of same-sex marriage bans, at least for now. “I think the Court will duck the California case by resorting to some sort of jurisdictional question,” said Eisenberg. “They will not want to reach a decision on the merits that has a fifty state impact.” He added that the justices might do the same with Windsor.
The event was organized by Lambda, Cornell Law School’s Association for the Lesbian, Gay, Bisexual, Transgender, Queer (LGBTQ) and Straight ally community, and co-sponsored by the Law School’s American Constitution Society (ACS), California Law Students Association (CaLSA), Public Interest Law Union (PILU), and Graduate & Professional Student Assembly Finance Commission (GPSAFC).