In this piece posted to Slate a few hours ago, I make the case that the unprecedented Election Day marriage equality sweep might have made it less likely that the Supreme Court will apply a higher standard of review to the equal protection analysis of both the DOMA and Prop 8 cases. But I also think the Court should (will? please?) strike these laws down anyway.
Here’s my conclusion: [W]hile I would be breathing more freely if I thought it likely that the court would… apply a higher standard of review, …even the rational basis test has some bite. I expect the court to take more than a chunk out of these laws. But, in a odd way, it would have been a better bet before the gay rights movement appeared to have the wind at its back.
I hope that some of you will find the piece interesting, provocative, garment-rending worthy — whether you have a legal background or not.