The Perils and Promise of the Holder Memo

Cardozo Law Review de novo, Vol. 2012, pp.187-202

16 Pages Posted: 11 Apr 2012

See all articles by David H. Schraub

David H. Schraub

University of California, Berkeley - School of Law

Date Written: April 10, 2012

Abstract

In this Essay, I explore how the Holder Memo interacts with the formal structure of equal protection doctrine and how it has been applied to LGBT legal claims. On the one hand, the claim that the gay and lesbian community is too politically influential to enjoy heightened judicial scrutiny has been a critical argument used to stymie gay rights claims in the courts. The high-profile reversal by the Justice Department regarding the constitutionality of the Defense of Marriage Act only strengthens this argument - the very existence of the Holder Memo paradoxically may weaken the very constitutional claim it purports to support. Yet, neither can it be said that such political triumphs are consistently the enemy of LGBT litigants. After all, however difficult it remains for marriage equality advocates to convince courts that restrictions on gay marriage are unlawful, certainly, their prospects are better today than they were even a decade ago. Rising gay political power has opened as many judicial doors as it has closed. And the very act of drawing the executive branch into the fray of the gay rights legal controversy also significantly elevates its political salience, helping mainstream what was once an electorally fringe position.

Keywords: gay marriage, constitutional law

Suggested Citation

Schraub, David H., The Perils and Promise of the Holder Memo (April 10, 2012). Cardozo Law Review de novo, Vol. 2012, pp.187-202, Available at SSRN: https://ssrn.com/abstract=2038129

David H. Schraub (Contact Author)

University of California, Berkeley - School of Law ( email )

215 Boalt Hall
Berkeley, CA 94720-7200
United States

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