Now the shoe is on the other foot, and it is time for the court to strike down a federal statute in order to advance a liberal policy goal rather than a conservative policy goal. Justice Scalia’s paean to the democratic process* in his dissent sounds a little hollow, coming in the wake of his votes to strike down affirmative action programs and Section 4 of the Voting Rights Act—both of them the result of the democratic process, as much as DOMA was. Meanwhile, none of the liberals pipe in to explain how to reconcile the outcome of this case with the concerns about democracy that they expressed in dissenting opinions in the other cases. (Ginsburg, in Shelby County: “That determination of the body empowered to enforce the Civil War Amendments ‘by appropriate legislation’ merits this Court’s utmost respect.”)

But this is a trite point, and never mind. The problem faced by opponents of DOMA is that there was no clear constitutional hook for striking it down. The Equal Protection Clause does not seem to apply because gay people (unlike, say, African-Americans) have not been regarded as politically weak enough to be a “suspect class,” justifying heightened review. That means that only a rational basis is necessary to uphold DOMA and a rational basis is easy to find (uniformity, efficiency, blah, blah, blah). The Due Process Clause does not seem to apply because that clause protects only rights that are rooted in history and tradition, and the right of same-sex marriage, however compelling a moral issue it may seem today, is not such a right. Federalism says that (under ill-defined conditions) the U.S. government cannot trump state law, especially in an area like family law, but in fact there are plenty of federal laws that regulate marriage, at least along the margins.

— Eric Posner, There was no clear constitutional reason to strike down DOMA, but the court did it anyway. Slate, today

I don’t understand why Posner thinks there is a conflict between the liberals’ position in Shelby County (yesterday’s 5-4 opinion gutting the Voting Rights Act) and their position in joining Kennedy in Windsor without reconciling the two.  Why does he think Ginsburg’s statement in Shelby County—“That determination of the body empowered to enforce the Civil War Amendments ‘by appropriate legislation’ merits this Court’s utmost respect.”—conflicts with Kennedy’s use of equal protection in Windsor?  DOMA surely was not intended to provide equal protection to same-sex couples.  And the liberals surely did not say in their dissent in Shelby County that democratically enacted laws are fine even if they violate constitutional equal protection guarantees.

And I’m not sure why Posner and many other commentators today complain that Kennedy’s opinion doesn’t identify the specific level of equal protection scrutiny that gay people are entitled to.  He establishes a separate, new class of people, including but not limited to gays, who are entitled to heightened equal protection: people targeted by laws or policies whose very intent and whose effect is to disadvantage them. “Discriminations of an unusual character especially require careful consideration” of the motive and effect–in other words, heightened equal protection scrutiny by the courts–he says.   That’s new, and not all that specific, but it’s certainly a level of scrutiny that’s different, and higher, than the rational-basis level of scrutiny. Kennedy clearly was saying that under this new type of scrutiny, there very much is a constitutional reason to strike down DOMA.

And I think it will play a role in next term’s affirmation action case challenging the constitutionality of 2006 successful Michigan ballot initiative that amended the state constitution to prohibit state-sponsored race-based affirmative action in employment and college admissions.  The Sixth Circuit Court of Appeals struck it down on the basis that, for equal protection purposes, constitutional amendments were different than ordinary legislation because the targeted groups can’t simply lobby the legislature to change the law; they must instead go through the lengthy, difficult and expensive ballot-initiative process.  The Supreme Court agreed to hear the case.  The case is Schuette v. Coalition to Defend Affirmative Action.  Linda Greenhouse had some interesting comments about it in the NYT a couple weeks ag0.

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*Scalia’s paean comes at the opening of his dissent.  He says, stupifyingly:

We have no power to decide this case. And even if we did, we have no power under the Constitution to invalidate this democratically adopted legislation. The Court’s errors on both points spring forth from the same diseased root: an exalted conception of the role of this institution in America.