In our June 1 entry, we discussed the First Circuit's decision striking down the Defense of Marriage Act (DOMA). In that appeal, we filed an amici brief on behalf of about 20 historians discussing relevant aspects of the history of marriage in America. Last week we filed a similar brief in a similar appeal pending in the NInth Circuit, Golinski v. OPM, in which the district court also struck down DOMA. If you click of the following link, and click on the "Golinski" matter, you can see all the major filings, including our brief. [http://www.ca9.uscourts.gov/]
If you are a history buff, I think our our amici brief is quite interesting, because it points out all the variety in states' marriage laws throughout the life of our Republic (and before), and how defining marriage was always considered within the bailiwick of the states, not the federal government. (If you go back to Judge Boudin's decision in Gill, this federalism issue is a factor in his analysis of what scrutiny to give DOMA – rational basis, but with a greater intensity, so the statute falls.) There are more history books than case decisions cited in the brief, so it's not your usual legal argument presentation, but more of an historical overview. One of the amici historians, Professor Nancy Cott at Harvard, filed a lengthy affidavit relied up extensively by Judge Tauro in this decision strking down DOMA at the district court level in Gill.
The appellant in Gill has filed its petition for certiorari, and, unusually, the Solicitor General has not only agreed that cert should be granted, but has also petitioned for certiori in Golinski, before the Ninth Circuit even rules. (Click on the link above and you can see the filings.)
Thus, we may be reaching finality on the constitutional challenge to DOMA next year, before the Supreme Court. If so, the Court's decision could say important things not only about the specific issue of DOMA viability, but more broadly, how the Court analyzes equal protection arguments; the level of scrutiny relevant when various factors are presented; and how federalism arguments other than "commandeering" come into the picture when challenging a federal statute. I hope that the historians' views can provide some useful background in this decision-making process.