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Bench Memos

NRO’s home for judicial news and analysis.

More NYT Idiocy, Exposed



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In a house editorial titled “The Defense of Marriage Act, Exposed,” the New York Times editorial board evidently imagines that it has some cogent points to make against the Defense of Marriage Act. It is mistaken.

The editorial purports to respond to the House of Representatives’ point that DOMA (as the House brief puts it) “serves the federal interest in uniform eligibility for federal benefits.” But it recasts “uniform eligibility” as the ambiguous term “consistency” (leaving unanswered “consistent with what?”) in order to set up its non sequitur rejoinder that DOMA “thwarts consistency by accepting some state definitions of marriage and rejecting others.” Yes, that’s what “uniform eligibility” means. The Times has no answer to the House’s actual argument.

The Times also falsely claims that the federal courts that have recently reviewed DOMA “have found that it fails to meet the most elementary test of constitutionality” under the “rational basis” test. But in fact the First Circuit two weeks ago and the Southern District of New York last week employed a standard of “intensified scrutiny,” and the First Circuit specifically acknowledged that plaintiffs challenging DOMA “cannot prevail” under the conventional “rational basis” test.



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