Jason Mazzone believes that Holder's DOMA approach "represents a real gamble" because "the Administration is counting on the courts (and ultimately the Supreme Court) taking the unlikely step of deeming gays and lesbians a suspect class--and invalidating section 3 on that basis":

My students are often surprised that after we work our way through the equal protection cases, the Supreme Court's own list of suspect classes is very short. Students sometimes ask if we just didn't cover a whole set of cases. No, I tell them, this is all there is. Students also suggest the Court is simply slower in identifying all of the groups who merit special judicial protection and there are surely more cases to come. My response is that there is in fact very little likelihood that the Court will hold that a classification involving any additional group triggers a heightened form of scrutiny. ...

In light of all of this, I am less moved than are other observers by Attorney General Holder's announcement yesterday concerning DOMA.

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