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Tuesday, June 05, 2012

Of Gill and Gratitude

As you no doubt have read, last week the First Circuit in Gill v. OPM affirmed a District of Massachusetts decision invalidating the Defense of Marriage Act (DOMA). Writing for the panel, Judge Michael Boudin wrote with refreshing directness, "We have done our best to discern the direction of these [SCOTUS] precedents, but only the Supreme Court can finally decide this unique case." Despite this disclaimer, the 1CA opinion is certainly a landmark decision. As a law prof teaching in western Massachusetts at Western New England I feel grateful to have had a ring-side seat from which to observe the litigation producing such important change. The case was litigated by attorneys at Boston-based GLAD, where my colleague Jennifer Levi, also a Professor of Law at WNE, serves as Director of the Transgender Rights Project. (Jennifer has a new book out about Transgender Family Law). In part because a sufficiently critical mass of faculty at WNE focus on LGBT-related issues, we have launched a WNE Center for Gender & Sexuality Studies. Located on the border of two states that were at the forefront of marriage equality (Connecticut and Massachusetts), and in the historically progressive Pioneer Valley, the intellectual community at WNE has prompted me increasingly to consider issues of gender and sexuality in my scholarship about prisons and criminal law. In these days of uncertainty in the national economy, the legal profession, and the academy, I am profoundly grateful to have been witness to work that is so real and meaningful. And so, in the wake of the Gill opinion, I'd like to pause and offer gratitude, for what we will surely remember as an important legal milestone, and for a good spot from which to watch the action.

Posted by GiovannaShay on June 5, 2012 at 09:43 AM | Permalink


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This is also a novel case for its reasoning. The court has used a new equal protection standard to strike down section 3 of DOMA: rational basis with federalism considerations. (rational basis with a twist of federalism) As I argue in detail on the Legal Skills Prof Blog at http://lawprofessors.typepad.com/legal_skills/2012/06/rational-basis-review-with-federalism-considerations-an-untenable-standard-for-euqal-protection.html, this standard is untenable. While I think that a court could strike down section 3 of DOMA based on the rational basis with a bite standard from Romer, using this untenable standard greatly weakens the court's reasoning.

Posted by: Scott Fruehwald | Jun 5, 2012 12:57:01 PM

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