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Please begin with an informative title:

By “clean sweep for gay marriage” I mean that there is, IMHO, a strong likelihood that both state and federal laws against gay marriage may be invalidated entirely by the Supreme Court, and perhaps for reasons which may not ever be addressed in oral arguments or appear in the final opinion. Follow my arguments:

1) The two cases are a near perfect setup for the court to decide the issue once and for all time at both the State and Federal level since the two cases involve both state and federal law.  Combining both state and federal cases does not appear to be a random choice by the court.  This is a setup to wipe marriage discrimination off the books.

2) Public opinion on gay marriage is neither as divided nor as static as opinions were on abortion.  This thing is moving fast and in one direction:  favorable.  So I don't think Ginzberg will oppose us.

3) Because of the speed with which public opinion is moving, it is quite likely that the issue is going to have to be addressed AGAIN by the Supreme Court in very short order, perhaps as little as two years.  On that occasion, the pro-gay marriage side will unquestionably use arguments supplied by the final opinion used in the current case.  That puts the Court in an embarrassing position: reversing itself after only two to four years.  And in the process, accepting arguments it just provided but used for a different conclusion (a limited but positive opinion).  I promise you the justices do not want another Plessy, nor another Hardwick/Lawrence debacle.  And after Bush v Gore, the Court wants its stature back.

4) The Court may just follow the Constitution’s bars against discrimination, punishment without due process, and violation of privacy.  I know it sounds ludicrous for this court to rely on the Constitution, but stranger things have happened.

5) This issue was once gold for Republicans, but is not now, nor will it be in the future.  It is a detriment for Republicans.  Besides, it appeals to the Libertarian crowd in the GOP.  Republicans will benefit if this issue is taken completely off the table by the Supreme Court.

6) Of course, all of this flies completely in the face of the Mainstream Media’s Conventional Wisdom, which is, as we know, nearly always wrong.  Cheers.


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