The Perils and Promise of the Holder Memo
Cardozo Law Review de novo, Vol. 2012, pp.187-202
16 Pages Posted: 11 Apr 2012
Date Written: April 10, 2012
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
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