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View Diary: House GOP dealt another blow: 2nd Circuit refuses to halt oral argument in Edith Windsor's DOMA case (21 comments)

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  •  The anxiety this produces in me! (1+ / 0-)
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    Scottie Thomaston

    Oy!  And I am not an anxious person. My husband and daughter are, to their great misfortune!

    While I have no doubt that the Second Circuit court will agree with the challenge to DOMA, I get palpitations when I think of the Supreme Court's ruling, such as it is currently constituted.

    Any theories to soothe my anxious bones? (I'm explicitly asking for the good news. Please put the pessimistic theories in a different thread. Okay?  It's been a bad week for me vis-a-vis "legitimate rape" and all.)

    "A pride of lions" "A murder of crows" "A wunch of bankers"

    by Glinda on Thu Aug 23, 2012 at 05:57:06 PM PDT

    •  Having read pretty much (4+ / 0-)
      Recommended by:
      Glinda, GrumpyOldGeek, sfbob, craigkg

      every filing in all these cases (not even kidding) I can honestly say it will be incredibly difficult for BLAG/House GOP to prevail, whether it's at this circuit or at the Supreme Court in the upcoming year.

      Their arguments really are very bad. And I know I'm gay and an activist, so I'm biased, but I just can't see how they work. They have to show a rational relationship between the reasons they offer for enacting the law and the actual text/purpose of the law. But they're saying like, "it protects childrearing." Well, how? The law simply says that for purposes of federal law marriage is between a man and a woman. It doesn't offer any benefits to opposite sex married people aside from the designation of marriage and it doesn't even acknowledge children, and in fact it disadvantages married same sex couples with kids. So how does that help in childrearing?

      It's just reasoning like that. It makes no sense. Their ONLY hope is if courts review it under the most lenient form of rational basis review, because using that standard, judges can offer "rational speculation" over what motives Congress may have had, whether or not they ever suggested the motives. But most courts aren't relying on that form of rational basis review (which is used mostly for economic legislation) though BLAG is pushing strongly for it. And the courts that have used rational basis review (Windsor) still struck it down anyway.

      So I really fail to see it surviving review. And certainly at the Supreme Court I can't see how Justice Kennedy would uphold it. He has authored all the recent pro-gay decisions, and plus DOMA touches on federalism aspects he is concerned about. My honest assessment is BLAG has a rough road ahead.

      I am proud to be a Contributor at Courage Campaign Institute's Prop8TrialTracker.com
      @indiemcemopants on Twitter

      by Scottie Thomaston on Thu Aug 23, 2012 at 06:20:13 PM PDT

      [ Parent ]

      •  Okay ... (2+ / 0-)
        Recommended by:
        Scottie Thomaston, sfbob

        So we have Scalia, Thomas, Alito, and Roberts upholding the view of same sex marriage that the Founders held in 1787 / revealing their deep-seated insecurities about their masculinity.   Sotomayor, Kagan, Ginsburg, Breyer and Kennedy(?) on the side of human rights, common sense, and the tide of history.  

        Okay, how would this calculus change if Romney is, by some fluke or violation of voting rights, elected in Novemeber and a justice retires in the first 6 months of his term.

        I am now sounding like my pessimistic husband. Apologies!  But the stakes are so high for this.

        At some point I should write a diary about how my feminism was fortified by all of the struggles of my gay and lesbian friends.  It is not merely synchronicity for me. The rights of men, women and children to define themselves as individuals in the contemporary world are tied intrinsically to the LGBT movement.  

        "A pride of lions" "A murder of crows" "A wunch of bankers"

        by Glinda on Thu Aug 23, 2012 at 07:01:29 PM PDT

        [ Parent ]

        •  I think it could (3+ / 0-)
          Recommended by:
          sfbob, Glinda, craigkg

          be either 5-4 or 6-3 striking down DOMA. Though 6-3 is less likely. I'm just not 100% sure that in ten years Roberts will want to be known as the Chief Justice who ruled that the federal government doesn't have to recognize already legal marriages.

          That's one important aspect of the DOMA challenges: as much as the right wing would love for it to be about marriage equality, absolutely zero DOMA cases are alleging there is a federal right to marry. None of them have to because all the plaintiffs are already legally married anyway. They're just saying it's an equal protection violation for the federal government to recognize opposite-sex legal marriages but not same-sex legal marriages.

          And I really would be completely shocked if somehow Romney won and a Justice retired and a new one was confirmed before oral arguments sometime around February (when the president is sworn in at the end of January.) I cannot see that happening. I am almost certain that these cases will be decided by the current court.

          (This isn't to say that Romney isn't terribly dangerous - these are not the only important upcoming cases, and we can't afford anymore Republican-picked Justices.)

          I don't think a retirement would be fast enough to affect anything.

          I am proud to be a Contributor at Courage Campaign Institute's Prop8TrialTracker.com
          @indiemcemopants on Twitter

          by Scottie Thomaston on Thu Aug 23, 2012 at 07:09:37 PM PDT

          [ Parent ]

      •  I wish I had your optimism (1+ / 0-)
        Recommended by:
        Scottie Thomaston

        On many issues the SCOTUS requires very little to satisfy a "rational relationship" test. Five years ago I would have thought upholding DOMA would be practically automatic. Now I'm not sure -- but certainly would be pleasantly surprised if they strike it down.

        I do wonder whether SCOTUS may either just deny cert and let lower court decisions stand, or ask BLAG to brief its standing.

        •  I very much doubt (1+ / 0-)
          Recommended by:
          craigkg

          they'd let the First Circuit decision stand and have a federal law inoperable in a single circuit. But you never know with this Court. Seems unlikely though.

          I think I would be more worried if Kennedy weren't on the Court. His opinions in Romer and federalism cases pretty much make it difficult for him to uphold DOMA without voiding a bunch of his past reasoning. And since he is probably in his last several years on the Court (turning 80 soon) I am not so sure why he'd want to screw up his "legacy."

          I think the Prop 8 case is probably the more questionable one out of the current challenges.

          I am proud to be a Contributor at Courage Campaign Institute's Prop8TrialTracker.com
          @indiemcemopants on Twitter

          by Scottie Thomaston on Thu Aug 23, 2012 at 07:20:55 PM PDT

          [ Parent ]

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