DOMA Ruled Unconstitutional in 5-4 Decision

The Washington Post reports that the Supreme Court has struck down The Defense of Marriage Act (DOMA) as unconstitutional. The vote was 5-4, with Justice Kennedy writing the majority opinion. No other details are immediately available.

More on this throughout the day at Reason.com.

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  • Acosmist||

    RTFO

  • Auric Demonocles||

    This seems to be the correct decision to me, but aren't they also ruling on the Prop 8 case today? I expect that one will be ruled incorrectly.

  • Auric Demonocles||

    Although I agree with their conclusion on DOMA, I don't agree with their reasoning.

  • ||

    SCOTUSblog is saying that language in this opinion suggests they will say they don't have standing on Prop 8, but we don't have that one yet.

  • Night Elf Mohawk||

    It's kind of interesting to see the case they stretch to find a reason to rule and the ones they kick back -- prop 8, Fisher -- I think.

  • ||

    From SCOTUSblog:

    [Kennedy's opinion]: "The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and injure those whom the State, by its marriage laws, sought to protect in personhood and dignity. By seeking to displace this protection and treating those persons as living in marriages less respected than others."
    ...
    Justice Scalia is reading from his dissent right now. The Court's opinion both in explaining its jurisdiction and its decision "both spring from the same diseased root: an exalted notion of the role of this court in American democratic society."

    Also, PDF of opinion.

  • Night Elf Mohawk||

    It would be the correct decision if there were an actual case or controversy in front of them. I think Scalia's dissent has the right of it, though if a decision were made on the merits it violates equal protection.

  • Neoliberal Kochtopus||

    Isn't the case about the inheritance tax?

  • Night Elf Mohawk||

    For this reason we are quite forbidden to say what the
    law is whenever (as today’s opinion asserts) “‘an Act of
    Congress is alleged to conflict with the Constitution.’”
    Ante, at 12. We can do so only when that allegation will
    determine the outcome of a lawsuit, and is contradicted by
    the other party.

    From Scalia's dissent. There is no case or controversy. This is like day 2 of 1L con law.

  • Neoliberal Kochtopus||

    The woman filed suit. The BLAG countered. There is a controversy here. I don't understand the problem.

  • Night Elf Mohawk||

    Read Scalia's dissent. I can't really do any more than that to help you understand the problem.

  • SIV||

    So much for Bill Clinton's "legacy"

    Free teh Gayz

  • Binjelli||

    But he won that GLAAD award!

  • DaveAnthony||

    Did his cunt wife ever apologize for that? Or did she take an Orwellian "we've ALWAYS been for gay marraige!" stance.

  • ||

    Not that I know of. She made quite a few largely symbolic pro-gay gestures while she was Secretary of State, and during the 2008 election "gays broke for Hillary like blacks broke for Obama" as a polisci friend liked to quip.

    I probably can't be too harsh on them since I pulled the lever for Bob Barr :(

  • Marginal||

    I eagerly await the left-wing cries of Judicial Activism!!!!!

  • John||

    I am of two minds on this decision. On the one hand I can understand and support the idea that the validity of marriage is a state law matter and the feds have no business telling the states what marriages count and don't count. On the other, I am not sure there is anything in the Constitution that requires the Feds to give full faith and credit with regard to federal benefits to state laws it finds are against public policy. It really is a close call. I could have lived with the decision either way.

    To me the more important decision is the Prop 8 decision. If the court kills prop 8 it is saying states no longer have the right to define marriage. And that would be appalling and wrong.

  • Fluffy||

    Prop 8 only matters in a context where the feds permit states to not recognize marriages from other states.

    And as far as I know, DOMA was the only reason such a state of affairs existed. With DOMA gone, aren't all MA marriages (for example) automatically valid in CA, whether CA likes it or not?

  • sarcasmic||

    If the court rules that states must recognize marriages from other states, must states also recognize CCW permits from other states? Even Illinois?

  • WTF||

    No, because the second Amendment is different, guns are icky, and FYTW.

  • ||

    That part of DOMA wasn't being challenged, just the federal benefits.

  • Fluffy||

    Is it severable?

  • robc||

    Based on arguments made about ACA, even specifically unseverable laws are severable.

  • Bo Cara Esq.||

    Rather easily I would say. One deals with federal benefits, the other with whether a state has to recognize the edict of another state.

  • John||

    No. DOMA said the FEDs would never recognize gay marriages for the purpose of federal benefits. So you couldn't get a VISA for your spouse even though Vermont said your marriage was valid. DOMA, as far as I know, said nothing and couldn't say anything, about the states' ability to recognize or not recognize other states' gay marriages. That is a full faith and credit issue.

    The general rule has always been that the full faith and credit clause does not require states to recognize marriages that are against public policy in that state. So for example, some states allow cousins to marry. But other states that don't, are not required to recognize those marriages.

    And prop 8 matters in more of a context than that. If Prop 8 is not allowed to stand, that means that there is a new right under due process to gay marriage that applies to the states. Declaring it unconstitutional would force every state to both legalize and recognize gay marriages as a constitutional right. Good luck with that if that happens.

  • Bo Cara Esq.||

    Prop 8 case dismissed for lack of standing.

  • John||

    Thanks. Interesting ruling. How did they not have standing? did they not get an actual gay person who lived in CA and wanted to get married?

  • Bo Cara Esq.||

    Other side didn't have standing.

  • Neoliberal Kochtopus||

    That's predicatable BS on the part of SCOTUS. The Supreme Court of California, Judge Walker, and the 9th Circuit all decided they had standing.

  • John||

    See my post below. They basically created a giant loophole that will now allow any chief executive who can find a friendly plaintiff and a friendly judge to invalidate any law they want.

  • Bo Cara Esq.||

    Do you think those got everything else right?

  • Bo Cara Esq.||

  • John||

    That is a bad decision. It is saying that since California chose not to defend its own law, no one else has standing to do so. That means the governor has ultimate authority over which laws actually come into effect. If the governor doesn't like a law, all he has to do is get someone to sue, get a judge to vacate the law, and then refuse to appeal. No one else has standing to appeal and the law, thanks to the decision of a single judge, no longer applies and there is nothing anyone can do about it.

    Think about how that can now be abused by executives. Oh, you don't like that law that prevents you from using imminent domain to buy out property owners for your cronies, no worries, get a judge to declare it unconstitutional and just don't appeal the decision. Problem solved.

  • Bo Cara Esq.||

    The alternative is thorny too-who gets to defend a law that millions voted for?

  • John||

    The argument is that the State of California has a duty to defend the law. The AG doesn't get to pick and choose what laws get enforced and defended and what don't. The legislative process does that. If the AG refuses to do his duty, then any citizen of California should be allowed to do the duty for them. What is the harm of allowing a private party to defend a law where the State AG refuses to perform his duties? The point is to fully and fairly litigate the matter.

    The reason why you have standing is to keep people from bringing sham suits for the purpose of getting binding precedents. Here, the court used the concept of standing to allow the State of California to actively collude with the plaintiffs in what amounts to a sham suit for the purpose of short circuiting the lawful legislative process. That is outrageous.

  • Neoliberal Kochtopus||

    Couldn't a state legislator have standing?

  • Bo Cara Esq.||

    Why a state legislator? They didn't vote for it.

  • Bo Cara Esq.||

    "The AG doesn't get to pick and choose what laws get enforced and defended and what don't."

    Why not? Aren't they an elected, coordinate branch of the government?

    "What is the harm of allowing a private party to defend a law where the State AG refuses to perform his duties?"

    Because, like I said, which private party? Millions of people voted for this, thousands worked to get it passed and on the ballot. Who gets to defend it, and why?

  • free2booze||

    Doesn't this mean that the decision by the lower court stands?

  • Fluffy||

    Isn't it even more extreme than that?

    If petitioners lack standing, they ALWAYS lacked standing.

    If the AG doesn't show up to defend the law, no one else has standing to do so in his place.

    So you don't even need a friendly judge. You just need a litigant.

  • John||

    Yeah. Even an unfriendly judge will be forced to grant summary judgement if the state never responds.

  • Bo Cara Esq.||

    I wonder, in theory could a clerk of the court or magistrate who didn't want to go along have standing? It was discussed at oral argument.

  • free2booze||

    From the majority opinion

    DOMA contains two
    operative sections: Section 2, which has not been challenged here, allows States to refuse to recognize same-sex marriages performed under the laws of other States. See 28 U. S. C. §1738C. Section 3 is at issue here. It amends the Dictionary Act in Title 1, §7, of the United States Code to provide a federal definition of marriage

    If I'm understanding this correctly, states still don't have to recognize a same-sex marriage performed in another state, but even if a same-sex married couple lives in a state that doesn't recognize their marriage, the feds still would have to recognize the marriage.

    Is that about right?

  • Fluffy||

    I honestly don't know.

    IT IS TOO COMPLEX FOR ME OH NO I FEEL LIKE A PROGRESSIVE TRAPPED IN SUBTLETY AND INFLECTED MEANING

  • Neoliberal Kochtopus||

    I would say your interpretation is correct, free2booze.

  • free2booze||

    If so, didn't the court sort of create a "win-win"? If a same-sex couple wishes to get married, but live in a state that doesn't recognize same-sex marriage, then they can simply get married in a state like NY, which provides them the ability to collect federal benefits.

    It probably doesn't address the issue of spousal benefits at the state level. Of course, even in states that reject same-sex marriage, many of them seem OK with recognizing domestic partnerships. If the gay rights movement were smart, they would push for domestic partnerships at the state level, which would give them everything they are looking for.

  • Neoliberal Kochtopus||

    Right, the primary benefits of marriage come from Domestic Relations courts, which is all state-level stuff.

  • ||

    "If the gay rights movement were smart" being the operative phrase. Now that gay marriage is a thing in some places it MUST be a thing in all places! Backlash be damned.

    Sigh. Prepare for this to get more obnoxious before it gets better.

  • Fluffy||

    No, dude. Section 2 of DOMA reads:

    No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.

    They put that there for a reason.

  • John||

    Ah. But that really is redundant with the full faith and credit clause. I don't think they can legislate that. It is up to the courts and the states.

  • kbolino||

    If the court kills prop 8 it is saying states no longer have the right to define marriage. And that would be appalling and wrong.

    It would be appalling and wrong for the court to say that no government has the right to interfere in private relationships?

    Of course, that's not what the decision would say. It would be nothing more than an extension of Loving, stating that if marriage is defined, it must not be exclusive of whatever groups the court deems fit to include.

  • Bo Cara Esq.||

    Did Loving mean states no longer had the right to define marriage?

  • robc||

    Pre or post Loving, Im missing on where states were granted the right to define marriage at all.

  • Bo Cara Esq.||

    10th Amendment.

  • robc||

    Um, no.

    That reserved the right to the people.

  • Bo Cara Esq.||

    How do you figure?

  • robc||

    How do I not?

    For one thing, marriage is fully protected by the 1st amendment freedom of religion, and thus extended by the 14th, so even if states had that power by the 10th at one time, they lost it after the 14th was passed.

  • Bo Cara Esq.||

    "marriage is fully protected by the 1st amendment freedom of religion"

    That can't be right. States were defining marriage one man/one woman (and with other restrictions) apart from a person's religion for a long time (see Reynolds v. US).

    We're talking about 'defining marriage' in terms of government recognition, right? Of course, it doesn't matter: throughout our history people who claimed they had religiously sanctioned marriages found them not only not recognized but often sanctioned.

  • robc||

    We're talking about 'defining marriage' in terms of government recognition, right?

    Im saying no level of govenment has any power to license and/or "recognize" a marriage at all.

  • Bo Cara Esq.||

    Oh, you mean in some philosophical sense apart from our legal system. OK.

  • robc||

    Oh, you mean in some philosophical sense apart from our legal system. OK.

    As I dont think are legal system is perfect, yes, duh. Our legal system should match up with the philosophical sense, but it never will.

  • robc||

    Also, 10th amendment is about POWERS, not RIGHTS.

    States dont have rights, they have powers. Hence, the "right" to define marriage can never be with the state.

    And I dont think they have the power either, it is a right reserved to the people.

  • Bo Cara Esq.||

    What would be the "right" to define marriage apart from the power to define it? And do you agree the 10th gives the states that power?

  • robc||

    And do you agree the 10th gives the states that power?

    No, I dont.

    It either gives it to the state or reserves it to the people. And the 9th makes it clearly a right reserved to the people. And the combo of the 1st and 14th hammers the point home.

  • Bo Cara Esq.||

    Saying "the 9th" followed by "makes it clearly a right" is pretty much an oxymoron...

  • robc||

    Saying "the 9th" followed by "makes it clearly a right" is pretty much an oxymoron...

    You sound Tulpaish on that.

    The 9th is pretty fucking clearly written.

    The 9th is there for an obvious reason: they werent going to explicitly list every natural law right that exists. But it covers every natural law right. Because they are fucking rights.

  • Bo Cara Esq.||

    The 9th makes it clear the people retain unenumerated rights, what it doesn't make clear is what rights they are.

    "But it covers every natural law right."

    What are these unlistable rights?

  • robc||

    What are these unlistable rights?

    Every natural law right.

    The list is far too long to enumerate, hence the 9th.

  • robc||

    According to Jefferson, they are self-evident.

  • Bo Cara Esq.||

    I know people who honestly think a right to health care is a natural right.

    We don't want judges deciding which 'natural rights' people 'really' have.

  • Tonio||

    We don't want judges deciding which 'natural rights' people 'really' have.

    Well, who, then? You're going to have a seance and ask the ghost of the authors what they meant?

  • robc||

    Well, who, then? You're going to have a seance and ask the ghost of the authors what they meant?

    Exactly. In theory they are self-evident, but in practice judges are going to rule.

    And in practice, judges will sometimes fuck it up.

  • Bo Cara Esq.||

    Do you really want judges deciding which natural rights people have?

    Do you know any judges?

  • robc||

    I know people who honestly think a right to health care is a natural right.

    There are no postive natural rights, so those people are morons.

    A natural right must be a negative right, because otherwise requires slavery.

  • Bo Cara Esq.||

    Of course many people will disagree with you.

    Many of them will be judges.

    You see the problem.

  • robc||

    You see the problem.

    People are wrong, yes, I see the problem.

    It isnt a theoretical problem though, merely an implementation problem.

  • Tonio||

    Unlisted is different from unlistable.

    Let's take the right to breathe air; you'd be hard pressed to find someone who wouldn't consider that a natural and inalienable right.

  • robc||

    Unlisted is different from unlistable.

    Yes, but not in this case. The 9th amendment rights are both unlisted AND unlistable.

  • ||

    This is an awesome discussion. When boiled down, it is about the meaning of the 9th amendment and where that takes you.

    IMHO, it leads to my tenet #1:

    A person may do anything they wish, PROVIDED in doing so they do not infringe upon the rights of others.

    The 9th, when argued to its logical conclusion, means just that. Your negative rights are essentially unlimited as long as your actions don't hurt or disrupt the lives of others.

    In my libertopia, victimless crime laws would be struck down under the 9th.

  • Acosmist||

    Police powers.

  • Night Elf Mohawk||

    Voters in those states.

  • John||

    The common law. The states have always had the power to define marriage. There have been laws against marrying members of your family since before the country was created. Family law, like estate law and general criminal law has always been the province of state law not federal law.

  • Bo Cara Esq.||

    This is correct. According to the 10th any powers traditionally exercised by the states that were not canceled by an explicit enumeration to the feds remained with them.

  • robc||

    Not entirely true: some were reserved to the people instead.

    And traditionally, marriage was reserved to the people. It wasnt until late middle ages that government got involved.

  • Bo Cara Esq.||

    Yes, that is why I said "any powers traditionally exercised by the states..."

    The rest went to the people.

    "traditionally, marriage was reserved to the people. It wasnt until late middle ages that government got involved."

    You've got a pretty massive equivocation of 'traditionally' going on there.

  • robc||

    The older, the more traditional.

  • Night Elf Mohawk||

    The older, the more traditional.

    So we're traditionally still English colonies rather than an independent nation, despite events which have intervened since the older status?

  • Night Elf Mohawk||

    Which, I believe, predates the Constitution, old as it is. The Constitution was passed in that context. If you want to argue that states shouldn't have the power to define marriage, that's cool. If you're arguing that, in our system, they don't, I think that's just grievously wrong.

  • Bo Cara Esq.||

    This.

  • robc||

    They shouldnt AND dont.

    An argument can be made that they had the power until the 14th was passed, but at that point, the 1st (and 9th) amendment gets applied to the states, and they lost the power IF they ever had it.

  • Night Elf Mohawk||

    "Laughable" is the nicest word I could come up with. Have a good day.

  • Tonio||

    But that "always had" works both ways. Prior to the First, the states also had the power to declare state religions and to tax people (incl non-members) to support churches.

  • robc||

    Exactly. And with the passage of the 14th they lost thay power. And the power to license marriages for the exact same reason.

  • Bo Cara Esq.||

    The First didn't curb the states on that, the 14th applying the First did.

    So what provision took from the states the power to define marriage that they traditionally had when the 10th was passed?

  • robc||

    So what provision took from the states the power to define marriage that they traditionally had when the 10th was passed?

    14th applying the first.

    Marriage licensing is a violation of the 1st amendment.

  • Bo Cara Esq.||

    I don't think anyone who voted for the 14th thought that.

  • robc||

    Maybe they should have read the amendment then.

    They had to pass it to find out what was in it.

  • Night Elf Mohawk||

    I don't think anyone who voted for the 1st though that, either.

  • robc||

    I don't think anyone who voted for the 1st though that, either.

    They thought the first only applied to the Feds, they were fine with the states doing all kinds of religious acts, like establishing churches, and taxing for the churches, and licensing marriages.

    The 14th eliminated all those things.

    The argument for established churches and marriage licenses is exactly the same.

  • Night Elf Mohawk||

    Look, incorporation is bullshit. If the 14th meant to incorporate the Bill, it would have been easy enough to have written that. They didn't.

  • robc||

    Look, incorporation is bullshit.

    So you are fine with state churches?

    I think there is a legit argument against incorporation, but that opens up a lot of state powers then. If you want to go that way, I will accept that argument.

    If incorporation doesnt exist, states have the power to license marriages. If incorporation exists, they dont.

    Im fine with that.

  • Night Elf Mohawk||

    So you are fine with state churches?

    Would I want there to be? No. Do I think the Constitution allows it? Yes.

  • robc||

    Would I want there to be? No. Do I think the Constitution allows it? Yes.

    I realized after posting that fine has two meanings, I meant the latter, I assumed we are all in agreement on the former.

  • Juice||

    Incorporation is bullshit, but only because amendments 2-10 applied to the states the whole time, if you go by plain reading. Also, by plain reading, the 1st never applied to the states and still doesn't.

  • Xenocles||

    "Marriage licensing is a violation of the 1st amendment."

    Only if it regulates religious marriages. As far as I can tell you could always find a cleric of some sort to sign off on any union (assuming the union was within the cleric's doctrine). It's just that the state wouldn't necessarily grant you a civil marriage alongside it.

    As I understand it when I got married in Massachusetts the priest was acting as both an official of the Catholic Church and as a deputy of the Commonwealth. Since I was a closeted atheist at the time you could argue that my religious marriage is void, but the legal one necessarily stands since there is no religious test for legal marriages. (My wife knew about my religious preference, so there's no element of deception regarding the other party to the contract.)

  • John||

    In a sense yes, as far as interatial marriage for sure. Now, did the 14th Amendment, an Amendment passed for the specific purpose of ensuring freed blacks were given equal rights by the states mean that states were no longer allowed to prevent interracial marriage? Yeah, probably so. Did it mean that states must recognize gay marriage even though the act of being gay was a serious felony in nearly every single state until the 1970s and in some cases beyond? I think not.

    This would be much different than Loving. Loving was nothing but the Supreme Court finally making the 14th Amendment mean what it was intended to mean. This would be the Supreme Court deciding on its own there are rights never contemplated and in fact actively rejected by the drafters of the 14th Amendment and telling the states that they must recognize this new right. If they can declare a "right to gay marriage", they can declare a right to anything. If Prop 8 goes down, all marriage law will now be the domain of the courts not the legislatures. To the extent the legislatures have power in the area, it will be because the courts allow them to have it.

  • Bo Cara Esq.||

    Iirc the Congress that sent the 14th to be ratified had segregated audience seating. I doubt they intended to do away with racial intermarriage bans anymore than they did gay ones.

    "If Prop 8 goes down, all marriage law will now be the domain of the courts not the legislatures."

    I don't think so, a lot of marriage law has little to do with a characteristic of the people in the union.

  • Xenocles||

    This is why I prefer a strict textual approach rather than an originalist one. It's so much cleaner to interpret the straight text rather than dig through history for possible indicators of intent.

  • Calidissident||

    I don't think a purely textual approach is possible, because words and phrases can have unclear phrases, especially over time. See the "general welfare" clause as an example

  • Calidissident||

    *unclear meanings

  • Fluffy||

    I'm still trying to understand the implications of this decision on the requirement of any state to recognize a gay marriage from another state.

  • robc||

    I think there will be a series of "full faith and credit" cases going forward and we wont know the full implications until one of those reaches the Supremes.

  • Tonio||

    ^This.

  • Bo Cara Esq.||

    Different provision of DOMA.

  • ||

    The headline is incorrect, only parts were ruled unconstitutional.

  • Tonio||

    The states with strong sentiments against this have already addressed this at the state level by passing laws or amendments prohibiting the state from recognizing same sex marriages, or from recognizing SSMs from other states.

    There is no issue in the states which already license SSM's.

    There may be a couple of states which will have to recognize out-of-state SSM's under full faith and credit; haven't checked recently. However, those states had ample opportunity to address this and their failure to do so indicates lack of strong sentiment.

  • robc||

    No other details are immediately available.

    Nick,

    sloopyinca scooped you and posted a link to the opinions in the earlier thread.

    So, yes, other details are immediately available.

  • sloopyinca||

  • robc||

    Roberts, Scalia, Ginsburg, Breyer, Kagan in the majority on Prop 8.

    Kennedy, Thomas, Alito, Sotomayor are the minority.

  • sloopyinca||

    Scalia will be getting praise from the left now, right? Without him, Prop 8 gets upheld. Only his adherence to procedure kept it from geting ruled on, and if it had been ruled on, there's no way it doesn't pass muster since the whole challenge of its (state) constitutionality is absurd seeing as it was a part of the state constitution by definition.

    Haha. The progressives owe him big time, but they don't quite know it yet.

  • Bo Cara Esq.||

    I saw progressives praise him for his stand in Maryland v. King, so I wouldn't be surprised if some praise him for this.

  • sloopyinca||

    They were ready to burn him at the stake yesterday.

    I guess we'll find out which is more important to the progressives: blacks or gays.

  • Ken Shultz||

    I'm hoping I'll live to see the day that this is no longer such a hot button issue, and Republicans will no longer be defined in the minds of swing voters primarily as opponents of gay people.

    Maybe then people will focus more on economic issues--both nationally and in states like California.

  • sloopyinca||

    And I'm hoping to see a day when every woman looks like Halle Berry in her late 20's.

    Let's see which one of us gets our wish first.

  • Bo Cara Esq.||

    Shit, I'd take a day when they all looked like Halle now.

    Don't let the perfect be the enemy of the good.

  • Ken Shultz||

    If they had ruled on Prop 8 and found that it violates equal protection, the argument may have been over for all intents and purposes...

    Abortion is still an issue because babies/fetuses (whatever) are still being killed.

    I don't think gay marriage is like that. I think once the supreme court rules on it definitively, it becomes an ancient issue.

    And, seriously, you take away gay marriage and immigration (all of California's politics is national) as issues, and California is no longer a one party state.

  • sloopyinca||

    And, seriously, you take away gay marriage and immigration (all of California's politics is national) as issues, and California is no longer a one party state.

    Except as the Environment, Climate, Welfare, Taxation, Agriculture and Labor "Rights" are considered political issues.

  • Ken Shultz||

    Yeah, there will still be Democrats in California, long after the gay marriage issue is over.

    But environment, climate, welfare, taxation, agriculture and labor "rights" ain't what's driving the swing vote in California. That's about immigrant bashing and gay marriage...

    Hell, the only reason Prop 8 passed was becasue so many minorities and immigrants* are against gay marriage--the swing voters in California really haven't come to terms with that yet, but that's what happened.

    *No, minorities and immigrants aren't swing voters.

  • Calidissident||

    I think all of these things are somewhat related. Most people don't give a whole lot of thought into developing a coherent personal political philosophy. I think a lot of people (especially as they grow up) think that if Republicans are (as they perceive them) homophobic, xenophobic, racist, etc. that they must be wrong on economic issues as well (and even though Republicans are nowhere near as pro-free market and pro-limited government as they are perceived to be, the perception is what matters). Others might still be sympathetic to the perceived Republican views on economic and fiscal issues, but can't bring themselves to vote for a party they perceive to be racist/homophobic/xenophobic/etc.

  • The vermin in the media||

    Why are democrats not defined in the minds of swing voters primarily as opponents of capitalism? We have a president who has just declared that he wants to wreck the economy in the name of "green" bullshit.

  • Ken Shultz||

    I wish they were.

    They aren't.

    Like I just posted a minute ago, in places like California, all politics is national.

    The reason so swing voters vote for people like Barack Obama is because they think they're sticking it to anti-gay marriage, anti-immigrant Republicans.

    Swing voters in places like California care about taxes and spending, etc., too. They just hate people who are thought of as gay bashing, immigrant haters even more. And Tip O'Neal had it completely backwards with them--for them all politics is national.

    They vote for people like Barack Obama because of stupid shit cultural conservatives in the South and places like Arizona do and say...

    I'm not saying that's the way it should be; I'm saying that's the way it is.

  • Bo Cara Esq.||

    "They vote for people like Barack Obama because of stupid shit cultural conservatives in the South and places like Arizona do and say..."

    To be honest I couldn't think of another reason...

  • Ken Shultz||

    Doesn't make any sense to me either.

  • Juice||

    Why are democrats not defined in the minds of swing voters primarily as opponents of capitalism?

    I thought they were, and that's why they get so many votes.

  • A Frayed Knot||

    Gay marriage is boring. Now gay divorce, especially between lesbians with kids, now that will be epic.

  • Brett L||

    If by "epic", you mean "physically violent", then yeah.

  • The Late P Brooks||

    Today's Morning Joke drive-by featured a lot of huffing and puffing about yesterday's SCOTUS decision legalizing slavery, or restricting the right to vote to the 1792 rules, something. The relief at having something "positive" to distract the rubes with was palpable.

    How can they demonize them now?

  • Ken Shultz||

    Benghazi
    IRS
    Spygate

    Their handwaving doesn't distract me.

    Hell, I'm still pissed off about them using my future paychecks to nationalize GM.

  • sloopyinca||

    Hell, I'm still pissed off about them using my future paychecks to nationalize GM.

    So I take it you don't have a "Bin Laden is Dead and GM is Alive" bumper sticker on your car? Why do you hate America, Ken?

  • Sudden||

    Remember when gay was the new black? Well, now black is the new gay.

  • ||

    Holy shit does Scalia rip them a new asshole. And all on Standing.

  • sloopyinca||

    Yeah, he's tearing into the activism of the court.

    I just can't believe Roberts joined his dissent on the same grounds. He's so squishy, I expected him to ride the wave of the majority.

  • Bo Cara Esq.||

    What's the problem with standing in the DOMA case supposed to be?

  • sloopyinca||

    I'm not sure. That's a good question.

    Anyone?

  • free2booze||

    There was no dispute, because both sides thought that DOMA was unconstitutional.

  • Juice||

    Therefore there can be no case and DOMA would stand as constitutional? Damn, the whole standing issue is twisted and fucked.

  • robc||

    Looks like Scalia, Roberts, Kennedy and Sotomayor were consistent across both cases.

    Scalia and Roberts denying standing on both, Kennedy and Sotomayor supporting standing on both.

  • Hugh Akston||

    So gay marriage is mandatory now? Tha...That's what we were worried about, right?

  • sloopyinca||

    Oh, and I can't wait to hear the cries of support for Scalia from the progressives. He was, after all, the reason Prop 8 didn't get ruled on, as the vote was 5-4 in the Perry case.

  • ||

    Scalia's dissent in the DOMA case is absolutely epic. FWIW I think he has it right with regard to section I, and the Court is clearly just thrashing around in order to (1) hear the case and (2) craft some sort of half-assed quasi-Federal quasi-Individual rights sort of thing. For god's sakes if you're going to ignore the standing thing you might as well go all the way and make a clear Equal Protection decision of it and be done.

  • Sudden||

    For god's sakes if you're going to ignore the standing thing you might as well go all the way and make a clear Equal ProtectionLochner decision of it and be done.

    FTFY

  • The Late P Brooks||

    So gay marriage is mandatory now?

    Gay robosexual marriage.

  • Sudden||

    In other news: it looks like Wes Welker won't be the only Patriot wearing orange this season.

  • Ken Shultz||

    Boston Weak.

    Chicago Strong.

  • Auric Demonocles||

    That's a pretty classless way to mock.

  • Ken Shultz||

    Too soon?

    Now I know how Gilbert Gottfried felt.

  • sloopyinca||

    The only issue I have with the Prop 8 ruling is the blatant disregard for the referendum system by the state of California.

    They have a system that lets the public vote on amendments. They should not be able to ignore the laws/amendments that were passed according to their own established procedures. The state judge who invalidated it and every subsequent reviewing judge, the state AG and the Governor should all be impeached.

  • Ken Shultz||

    It's become almost automatic.

    The courts struck down Prop 187, too.

    Just about every proposition that passes, a lawsuit is filed against it automatically.

    It may be wrong, but we're used to it.

  • Fatty Bolger||

    Yeah, as John points out above that's almost surely going to be abused, now that the principle is established. The governor can easily ignore and invalidate any amendment he doesn't like, simply by encouraging a litigant and then refusing to defend it. And could he do the same with a law passed by the legislature?

    I suppose they could pass an amendment that required the state to defend its laws when challenged, but they would just use the same trick to invalidate it.

  • sloopyinca||

    I suppose they could pass an amendment that required the state to defend its laws when challenged, but they would just use the same trick to invalidate it.

    Maybe it would cause them to get caught in a logic loop and all their heads would explode due to a power overload.

  • Eduard van Haalen||

    Scalia voted against standing in both cases for the sake, I suppose, of consistently limiting judicial power. His vote swung the Prop 8 decision.

    Kennedy, Thomas, Alito and Sotomayor support standing in the Prop 8 case based on what I consider the better argument - that California law designates the initiative sponsors as the representatives of the state if the AG and Governor refuse to defend the initiative.

    Scalia is so hung up on limiting federal courts and being consistent against standing that he ignores any differences between the Prop 8 and DOMA cases.

  • Eduard van Haalen||

    From the Prop 8 dissent:

    "In my view Article III does not require California, when deciding who may appear in court to defend an initiative on its behalf, to comply with the Restatement of Agency or with this Court’s view of how a State should make its laws or structure its government."

    Bazinga!

  • Eduard van Haalen||

    Scalia argues, correctly, I believe, that in the DOMA case the Court's concern-trolling about federalism is just a screen, a tactical evasion which will only last until the next case, when they can forget all about federalism and impose SSM on the whole country.

  • Derek Balling||

    Only section 3 of DOMA, no?

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