Our friend Dale Carpenter along with several other libertarian-leaning, nonleftist law professors filed an exemplary brief arguing that DOMA is unconstitutional under federalism principles:
Our view is that Section 3 fails equal protection review for a reason quite distinct from the standard approaches relying on heightened-scrutiny analysis. Whatever else may be its constitutional defects, Section 3 is not a constitutional exercise of any enumerated federal power. It is also not a “necessary and proper” measure to carry into execution any of Congress’s enumerated powers. Instead, it is an unprecedented expansion of federal authority into a domain traditionally controlled by the states.
An array of briefs have now been filed from left-progressive to libertarian and center-right. That’s laudable. But let’s recall how the libertarian Cato Institute’s amicus brief in Lawrence v. Texas was the one that Justice Kennedy cited in his opinion overturning state sodomy laws (note: he didn’t cite the briefs from NGLTF or HRC).
As in Lawrence, Justice Kennedy (and perhaps, now, even Alito and Roberts) aren’t going to be swayed by the bigger-government, Democratic party-aligned progressives. But it’s still good to have them onboard.
More. Here is analysis that includes a link to the Cato Institute’s brief in favor of marriage equality.
Furthermore. James Kirchick writes:
At the time of the Stonewall Riots in 1969, few would have predicted that a movement predicated upon sexual liberation would mature into one calling for the right to get married and serve openly in the armed forces.
Some liberal gay activists, suffering from a bout of historical amnesia, do not like what they see as an attempt by conservatives (gay and straight) to claim the cause of marriage equality as their own.