Posted on 03/27/2013 2:17:10 PM PDT by Kaslin
A rare instance in which the left is decidedly pro-federalism. The word from Reuters and SCOTUSblog:
U.S. Supreme Court justices signal interest in striking down #DOMA as violating states’ rights #breaking
— Reuters Top News (@Reuters) March 27, 2013
Final update: #scotus 80% likely to strike down #doma. J Kennedy suggests it violates states’ rights; 4 other Justices see as gay rights.
— SCOTUSblog (@SCOTUSblog) March 27, 2013
A bit more detail from the WSJ liveblog:
Justice Kennedy, however, jumped in with federalism concerns, questioning whether the federal government was intruding on the states’ territory. With there being so many different federal laws, the federal government is intertwined with citizens’ day-to-day lives, he said. Because of this, DOMA runs the risk of running into conflict with the states’ role in defining marriage, he said.
But maybe another standing issue, a la yesterday?
But issue of jurisdiction in DOMA — and whether Court can decide case — is a serious one. Several justices expressed reservations.
— Jan Crawford (@JanCBS) March 27, 2013
The White House refuses to defend DOMA in court, just as California’s government refuses to defend Prop 8. Do other parties (i.e. House Republicans) who are defending DOMA really have a legal stake in the case or is it mere political interest, in which case there’s no standing?
DOMA’s an especially hard sell with this Court. Conservatives stand a chance on Prop 8 because that case pits gay rights against state sovereignty, two concepts Kennedy has stood for fairly reliably throughout his career. It’s not crazy to think he’d side with the latter over the former given that trends in public opinion might soon solve the problem for him. DOMA, however, aligns the two: He can strike a blow for states’ rights and for gay rights by voting to strike the law. And as SCOTUSblog notes, the Court’s four Democrats are a lead-pipe cinch to vote against it. There hasn’t been an unpredictable vote on social issues among the liberal wing in decades.
Obvious question: How does the White House decide which federal laws aren’t worthy of being defended by the DOJ? The Court’s conservatives would like to know.
“It’s very troubling,” said Justice Anthony Kennedy…
Chief Justice John Roberts pressed government lawyer Sri Srinivasan on how the government will now decide which laws to defend. “What is your test?” Roberts asked.
Justice Antonin Scalia, who served in the Justice Department in the 1970s, criticized its “new regime.”
Two more tidbits from today’s oral arguments, and these may have some bearing on the Prop 8 ruling. Compare and contrast. First, Roberts:
Roberts: Politicians are “falling all over themselves” to endorse same sex marriage so gays and lesbians have to be “politically powerful”
— AdamSerwer (@AdamSerwer) March 27, 2013
And second, via the WSJ, Clement vs. Kagan:
Justice Kagan said the House report that accompanied the legislation suggested at least some lawmakers had improper motives to enacting the law, such as for the purposes of voicing disapproval of homosexuality. Mr. Clement said the high court has never invalidated a statute on that basis.
Both of those remarks bear on whether the Court might find either DOMA or Prop 8 a violation of equal protection. The point of Roberts’s comments is that, traditionally, the Court only applies “heightened scrutiny” to laws that discriminate against groups that are regarded as being relatively politically powerless. The point of constitutional rights is to protect individuals or minorities who are threatened somehow by the majority, right? But if 53 percent of the country now supports gay marriage, how exactly are gays politically powerless or being threatened? That suggests Roberts would not apply “heightened scrutiny” to DOMA or Prop 8, which in turn means he’s more likely to uphold both laws. Without heightened scrutiny, all the government has to do is show that the law it’s defending has some “rational basis” and the Court will uphold it. (Although do note: Most gay-marriage supporters argue that Prop 8 and other bans have zero rational basis, so it’s possible that Roberts would vote to strike down the laws even without applying heightened scrutiny.) Clement’s remark to Kagan touches on the same point: The Court has never ruled that government discrimination against gays is illicit and thus worthy of heightened scrutiny for purposes of equal protection the way it is for racial minorities. The potential significance of these cases is that the Court might end up tackling that issue head on and addressing whether government discrimination against gays remains more or less legally permissible. But given all the concerns about standing today and, especially, yesterday, it seems a more modest ruling is likely.
Update: Speaking of gay marriage and states’ rights, Gabe Malor flagged this statement from Ted Cruz as being significant. I agree.
Sen. Ted Cruz said Tuesday that he was against same sex marriage and hoped the U.S. Supreme Court would continue to let individual states grapple with the issue.
“I support traditional marriage between one man and one woman,” Cruz said after speaking to the Richardson Chamber of Commerce. “The Constitution leaves it to the states to decide upon marriage and I hope the Supreme Court respects centuries of tradition and doesn’t step into the process of setting aside state laws that make the definition of marriage.”
Says Gabe:
With Sens. Rubio, Paul, Cruz saying marriage should be left to the states, it’s clear the FMA is well and truly dead.
— Gabriel Malor (@gabrielmalor) March 27, 2013
“FMA” is of course “Federal Marriage Amendment,” which is what I assume Huckabee and social conservatives will start demanding from prominent Republicans if the Supreme Court ends up legalizing gay marriage nationwide before 2016. The point of the FMA traditionally has been to ban all attempts at legalizing SSM by stating in the U.S. Constitution that marriage is between one man and one woman. That would take the matter entirely out of the states’ and the courts’ hands. Would Cruz — and Paul and Rubio — oppose that on federalism grounds? If so, will Huck et al. compromise by pushing instead for a new version of the FMA that would return the issue to the states rather than ban the practice of gay marriage outright? It’s hard for me to believe social conservatives would settle for that since, given the poll trends, it would ensure legal SSM in most of the country over the next 25 years anyway. But in that case, what are Cruz/Paul/Rubio to do?
Update: A nice antidote to some of the sanctimony this week:
Hey, when Democrats controlled the House, Senate (with 59/60) and WH in 2009-10, did they attempt to overturn or repeal DOMA?
— Nathan Wurtzel (@NathanWurtzel) March 27, 2013
Follow-up: Was repealing it a particular priority of the liberal base at the time?
If DOMA goes down, that ends all family-based tax-deductions (and credits).
I don’t know if that is good or bad, but it is a fact.
Bad. The birth-rate is already declining, the last thing you want is to make it even harder financially to marry and have children.
2% of queers are now running the country.
Of course they will. The fix is in. The only good thing is we know what’s going to happen unlike Obamacare...
The solution is to eliminate two federal taxes ~ inheritance and income. Both are failed government programs and do not do what they are purported to do.
I thought the very purpose of DOMA was to protect states' rights by assuring them they didn't have to recognize turd poker "marriages" if they didn't want to, regardless of what other states or the federal government did?
This is a tax case. Unfair to put a tax on gay remaining partner when one dies. Ways around that in Trusts, you know.
We are all divided into “status” categories for tax purposes.
I love to carve horses out of exotic woods. As a hobby I can’t deduct the expense. As a Corp or partnership I can...even not making any effort at a profit for a while.
Complex, but this DOMA case has weak knees.
As I understand it, DOMA only prevents the federal government from recognizing “gay marriage” in federal matters. For example, you can’t claim your same-sex, sodomite butt buddy on your federal tax return as your wife, i.e. file a joint return. It does not affect the state from doing whatever it wants on the matter. Therefore, DOMA does not violate the US Constitution.
Additionally, DOMA was passed by Congress and signed into law by the president. Congress, if it wanted, could EASILY rescind DOMA. If that was the popular will of the people, it would be done. Why should the SCOTUS intervene at all when there’s no clear constitutional issue with DOMA and the legislative process if fully capable of fixing DOMA if it wanted.
DOMA also does not violate equal protection as gays are still permitted to marry an opposite sex spouse. There are all sorts of other laws that legitimately prevent people from marrying whoever or whatever they want. In other words, the person’s preference is not relevant to how a state defines marriage (unless the state wants to take preference into account). Otherwise, a bisexual person could reasonably argue they must be permitted to marry a spouse of each sex.
the only reason FMA is not up is due to the fact the states are left on their own.
once the court federalizes the issue then FMA comes back as a campaign issue.
unless you are a male who wants another wife without the need of paying for a divorce...
so we have Kagen who banned ROTC at Harvard and Roberts hwo has his own family sitting right there who look to gain from his decision.
Er if that is not enough to step away from this case then we might as well just get rid of the courts because lady justice has now left America
What a pathetic attempt to inform. Talk about low information.
They already started, we have a business and always filed jointly but now we either have to file as partners or file 2 Schedule Cs.
you might as well go to SCOTUS and argue because our side don;t seem very interested in winning this.
They the turd pushers etc have every right as we do, they can marry the opposite sex liek us
We can;t marry the opposite sex like they cannot
That shuld be enough to dismiss this case and upheld DOMA
Remember we are here because a activist homosexual judge rules on Prop 8 and against it and thensaid he was a homosexual and wanted to marry in CA.
If DOMA goes then I hope polygamists then sue because they have opened a can of worms on this
Baloney.
Reuters needs to go away, and the WSJ is also biased.
Go away liberal media.
When I was born before WEI, world population stood at about 2.6 billion. Current world population stands at just over 7 billion people?
Your argument holds no water, Sir.
If only 2% of the queers are running the country, what are the rest doing? :-)
so now govt will dictate the definition of ‘marriage’ to churches
hmmm... ok...
so about that separation of church and state...
Especially when you have several whose sexuality is questionable or of the LGBT lifestyle. The deck has already been stacked.
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