This afternoon, the New York Times released an article by Jodi Kantor on Obama’s career as a law professor. In a sidebar, the Times posts a syllabus of his and quite a few of his exam questions, along with the corresponding answer memos.
Not that there was any doubt, but the new evidence suggests Obama has a formidably sharp mind. I didn’t expect, however, that the academic documents would cause me to tear up. In 2003, the first question on the final exam in Prof. Obama’s Constitutional law class asked for a brief on behalf of a monogamous gay couple in a relationship of ten years’ standing who want to challenge their state’s defense-of-marriage act and its legal restrictions on gay adoption. Of course the question, like most legal questions, could be answered merely as an intellectual exercise, but after the way that gays have been hung out to dry in recent elections, it moved me to discover that Obama, who supports the repeal of the Defense of Marriage Act, knows the legal terrain in such fine detail.
To wit: According to the answer memo for the exam (I at first thought that this answer memo had to have been written by Obama himself, but a commenter on the NYT‘s Caucus blog points out that law professors often distribute the best student answer in lieu of writing an answer memo themselves, so its authorship is uncertain), the equal protection clause of the 14th amendment will likely prove a stronger basis for the hypothetical couple’s case than the same amendment’s due protection clause. Because homosexuals are not considered a protected class under current interpretations of the amendment, the rationale for a law that singles them out need not be narrowly tailored to a legitimate state interest, but it does have to be “rationally related” to such an interest. “However, antagonism or a bare desire to harm a politically unpopular group cannot constitute a legitimate governmental interest (Romer).” The answer memo concludes that “if the [Supreme Court] finds that denying homosexuals marriage demeans their existence, it is likely that this statute, as written, will fail rational basis review.”
UPDATE, 11:50pm: The New York Times has deleted its link to the answer memo that I quoted above (though the link above still seems to be working) and has added a note reading, “In a previous version of this post, student answer memos were posted in addition to Mr. Obama’s memos.” So it seems that the answer memo was not written by Obama personally, though it remains true that he chose it as the best answer any of his students were able to provide.