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Scales of Justice
This just in:
The U.S. Supreme Court will take up the issue of gay marriage for the first time, agreeing to rule on a California ballot measure banning the practice and a federal law defining marriage as solely an opposite-sex union.

The cases, which the court will decide by June, loom as a potential turning point on one of the country’s most divisive issues. High court review comes as the gay-marriage movement is showing unprecedented momentum, winning victories at the polls in four states this year.

The California dispute will address whether gay marriage is legal in the most populous U.S. state, home to more than 37 million people. The case also gives the justices a chance to go much further and tackle the biggest issue: whether the Constitution guarantees same-sex marriage rights nationwide. [...]

In addition to the California case, the justices today said they will review the U.S. Defense of Marriage Act, a 1996 law that two federal appeals courts said impermissibly treats legally married gay couples differently than heterosexual couples. DOMA, as the measure is known, blocks gays from claiming the same federal tax breaks and other marriage benefits that opposite-sex spouses enjoy.

Stay tuned for a more in-depth look at these cases and potential outcomes for both.

12:43 PM PT: For more discussion, see jpmassar's diary here.

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Comment Preferences

    •  I'm with you on the optimism side (6+ / 0-)

      This could be 2012's version of Loving v. Virginia.

      To me progress is not so much a goal as it is a process and I believe it will not follow a straight course. Remember, the drops of water that form the river may not take the shortest path but they will still reach the ocean.

      by ontheleftcoast on Fri Dec 07, 2012 at 12:45:52 PM PST

      [ Parent ]

      •  I don't see how they could uphold DOMA (3+ / 0-)
        Recommended by:
        ontheleftcoast, DesertMac, skrekk

        without striking down Loving.

        •  I bet NOM is praying the Mayans were right (9+ / 0-)

          Can you imagine their world after DOMA and Prop 8 get shot down? They'll have no reason to exist as a group. And no, they won't have the legs the anti-abortion misogynists have against Roe. When was the last time you saw a national anti-miscegenation campaign? NOM knows that once the SCOTUS rules favorably on gay marriage it's over.

          To me progress is not so much a goal as it is a process and I believe it will not follow a straight course. Remember, the drops of water that form the river may not take the shortest path but they will still reach the ocean.

          by ontheleftcoast on Fri Dec 07, 2012 at 12:52:40 PM PST

          [ Parent ]

      •  I am not optimistic (1+ / 0-)
        Recommended by:

        Read the New York case.

        Because gay people aren't a protected class, there merely has to be a rational basis for the law, and these judges are going to consider rational the idea that it's good for kids to have one male parent and one female parent, all other things being equal.

        •  that's not the question at hand though (2+ / 0-)
          Recommended by:
          DesertMac, skrekk

          These are, really, cases that have more to do with equal protection than they do gay marriage, I think. It just so happens that they deal with gay marriage.

        •  Doesn't matter (3+ / 0-)
          Recommended by:
          apimomfan2, Jay C, skrekk

          Whether GLBT people are a protected class or not (Kennedy's opinion in Lawrence came very close to holding that they are outright and has been cited by lower courts as authority for ruling that they are), this case could still be decided on equal protection grounds and that is the more difficult hurdle for the H8ers to get over.  Unfortunately, in Kennedy's opinion in that case, he also wrote that he was not establishing justification for same-sex marriage; dicta, but he's still got to get around it.  Frankly, while I don't see how denying marriage rights to GLBT people is not a violation of Equal Protection, I can also see the Court punting on this one for a while.  They probably wouldn't say it in so many words, but a majority, including Kennedy, may be nervous about imposing this standard on a nation that has still overwhelmingly rejected ssm.  They could, however, reverse the 9th Circuit in the Prop 8 case and still overturn all of DOMA on full faith and credit grounds, leaving things pretty much where they are now.  Here in California, we'd have to go back to the polls to overturn Prop 8 (ideally, we'd run a better campaign and win this time), but a decision like that would leave the country roughly where it was on divorce 40-50 years ago.  States would have to recognize the married status of people legally married in other jurisdictions, but could still refuse to legalize ss marriage themselves.  That would leave us having to fight the battle state-by-state, but a majority of the Court may well think that's the way it ought to be for now.

          "The test of our progress is not whether we add to the abundance of those who have much. It is whether we provide enough to those who have little. " --Franklin D. Roosevelt

          by jg6544 on Fri Dec 07, 2012 at 02:06:49 PM PST

          [ Parent ]

      •  I would tend to doubt (3+ / 0-)
        Recommended by:
        DesertMac, Jay C, skrekk

        that SCOTUS will just legalize gay marriage. They don't really need to. But they COULD set up the basis by which it may or may not be legalized later.

        All they need to answer is:

        1) can you take away a right that you've already granted or is that a 14th amendment violation. That really, if you think about it, doesn't have to be a SSM issue at all, it just happens to come up in a SSM case.

        2) Can the federal government refuse to recognize a marriage performed in a state?

        Neither of those require ruling on whether gay marriage is required constitutionally. Additionally, neither even has to necessarily get to the question of what level of review gay marriage should fall under, since case #1 SHOULD fall under strict scrutiny just by being a 14th amendment case, and I think the 2nd one will fall even under rational basis.

        However, if they DO decide that question, that will go a long way toward deciding whether gay marriage must be recognized under the constitution. Personally I think the court will rule on as little as possible while still addressing the questions at hand.

      •  I wish I was (0+ / 0-)

        Ever since Obamacare passed, I've had this bad feeling that the next SC session was going to be sub-titled "Nino's Revenge." We've got the best chance w/ Prop 8, I think, because at no point in the appeals process has its proponents been able to show a valid basis for the law; DOMA, however, might get Alito and Scalia/Thomas up in arms because Obama's DOJ hasn't been fighting for it. ("Hey, you can't decide what laws to uphold! That's OUR job!")

        If the Court does strike down either or both cases, expect Scalia to do another soliloquy from the bench about how this country is going to hell in a speedboat, and "this court" just helped the process along.

        "If you're going to go down with the ship, make it a submarine." - Wayne Shorter

        by Oliver Tiger on Fri Dec 07, 2012 at 02:48:52 PM PST

        [ Parent ]

    •  I'd like to foolishly share your optimism (3+ / 0-)
      Recommended by:
      Aunt Pat, ontheleftcoast, apimomfan2

      but this is the supreme court of the United States we're talking about.

  •  It's time for Roberts & Kennedy (14+ / 0-)

    to come down on the right side of history and put these restrictions to rest once and for all.

    Filibuster reform now. No more Gentleman's agreements.

    by bear83 on Fri Dec 07, 2012 at 12:44:02 PM PST

  •  Historical decision regardless (6+ / 0-)

    Either the court will be on the wrong side of history as in Dred Scott or the right side of history as in Loving.

    Or they left themselves the option of punting on procedural grounds.

    •  But why would they accept such a case (2+ / 0-)
      Recommended by:
      apimomfan2, DesertMac

      only to punt it? If they need to resolve a difference between Circuits, there's no way to punt that.

      "All governments lie, but disaster lies in wait for countries whose officials smoke the same hashish they give out." --I.F. Stone

      by Alice in Florida on Fri Dec 07, 2012 at 12:52:04 PM PST

      [ Parent ]

      •  I believe (1+ / 0-)
        Recommended by:
        Scott Wooledge

        Only four justices are needed to accept, so the four liberals could have agreed to take it up

        •  ... or the conservatives (1+ / 0-)
          Recommended by:

          Either way,  one side is rolling the dice and betting that Kennedy is on their side.

          Please help to fight hunger with a donation to Feeding America.

          by MJB on Fri Dec 07, 2012 at 02:00:57 PM PST

          [ Parent ]

          •  Yeah, but remember ACA (1+ / 0-)
            Recommended by:
            Scott Wooledge

            Nobody expected Roberts to be on the right side. Admittedly, that was only one instance, but it just shows that the usual 5/4 split isn't a slam dunk any more.

            "If you're going to go down with the ship, make it a submarine." - Wayne Shorter

            by Oliver Tiger on Fri Dec 07, 2012 at 02:52:23 PM PST

            [ Parent ]

            •  It's still a risk... (2+ / 0-)
              Recommended by:
              Jay C, skrekk

              The obvious comparison which many have made is to the SCOTUS case Loving v. Virginia from 1967:

              This case presents a constitutional question never addressed by this Court: whether a statutory scheme adopted by the State of Virginia to prevent marriages between persons solely on the basis of racial classifications violates the Equal Protection and Due Process Clauses of the Fourteenth Amendment.  For reasons which seem to us to reflect the central meaning of those constitutional commands, we conclude that these statutes cannot stand consistently with the Fourteenth Amendment.
              That was a unanimous 9-0 ruling holding that states cannot prohibit interracial marriages.  But all nine of the justices on that Court (Warren, Black, Douglas, Clark, Harlan, Brennan, Stewart, White, Fortas) were to the left of five of the justices on the current Court.

              It's going to boil down to Roberts and/or Kennedy deciding whether they want to sign on to this generation's Loving, or to this generation's Dred Scott, or find some way to punt the issue a few years down the road.  It's up to them.

              Please help to fight hunger with a donation to Feeding America.

              by MJB on Fri Dec 07, 2012 at 10:02:09 PM PST

              [ Parent ]

  •  The tide is flowing in;will SCOTUS try to stop it? (4+ / 0-)

    Based on ACA---no way to know......

    •  They could just jump up on a platform (1+ / 0-)
      Recommended by:

      In both cases, they have the option of discharging them over procedural grounds.

    •  There's no clever way out (1+ / 0-)
      Recommended by:

      for this as there was regarding the ACA (and it should be noted that the ACA decision, while upholding the ACA and its mandate, did diminish Congressional authority pursuant to the Commerce Clause). This is a completely different matter--one normally left to the states, which would mean leaving California's law intact (though of course Prop 8 can be repealed via referendum, as it no doubt will, and soon). The absolute best we could hope for regarding DOMA would be a decision that Congress can't regulate marriage...but I don't see that happening. No way in hell will the current majority support the proposition that the Constitution requires marriage equality.

      "All governments lie, but disaster lies in wait for countries whose officials smoke the same hashish they give out." --I.F. Stone

      by Alice in Florida on Fri Dec 07, 2012 at 12:58:14 PM PST

      [ Parent ]

  •  here's hoping Scalia has a heart attack soon (1+ / 0-)
    Recommended by:

    I guess. Otherwise we're screwed.

    •  Remember what Roberts did on the ACA (6+ / 0-)

      I wouldn't put it past him or Kennedy to do the right thing on this. Hell, wouldn't a 6-3 be great?

      To me progress is not so much a goal as it is a process and I believe it will not follow a straight course. Remember, the drops of water that form the river may not take the shortest path but they will still reach the ocean.

      by ontheleftcoast on Fri Dec 07, 2012 at 12:47:28 PM PST

      [ Parent ]

      •  or to do the wrong thing to bolster their (0+ / 0-)

        conservative cred.

        Corporations are driven by the bottom line, not by concerns for health, safety or the environment. This is why we need government regulations.

        by the dogs sockpuppet on Fri Dec 07, 2012 at 01:04:02 PM PST

        [ Parent ]

      •  I'm guessing it will be (2+ / 0-)
        Recommended by:
        ontheleftcoast, bythesea

        6-3, just like Lawrence.  2 of the 3 were dissenting in Lawrence (Scalia & Thomas). I figure Alito will go along with them, but even he has sometimes surprised me.

        These capitalists generally act harmoniously and in concert, to fleece the people... -Abraham Lincoln

        by HugoDog on Fri Dec 07, 2012 at 01:05:22 PM PST

        [ Parent ]

      •  I don't think I would count on Roberts. (0+ / 0-)

        In the ACA decision he deferred to the Federal gov't and let a law stand. Ironically it was the other conservatives and Kennedy that were "activist".

        If Roberts is consistent then you might expect him to defer to the State of Calif and Prop 8 too. In fact, that would even be more likely for him because he can easily argue states rights and conservative/majoritarian philosophy.

        If Prop 8 goes down I think it'll be because of Kennedy. and it'll be 5 to 4. It could go either way though.

        •  However... (2+ / 0-)
          Recommended by:
          DesertMac, sarvanan17

          ...Chief Justice Roberts may be acutely aware of the unfolding legacy of the "Roberts Court", and not be willing to fall on his sword for a position fast withering on the vine in a decision certain to be reversed by a future court.

          And if there are five other Justices in favor of marriage equality, Roberts would gain absolutely nothing but another stain on his legacy by holding out.

    •  Hmm.. (9+ / 0-)

      I don't like the guy, but let's not hope death on our detractors.  Besides, it takes 5 to tango.

      •  yes, you're right, of course (0+ / 0-)

        just feeling mighty bad about this. It was a mistake to get these cases before this court in its present make up.

        •  Edie Windsor is 83 years old (2+ / 0-)
          Recommended by:
          craigkg, skrekk

          how many generations of LGBT should wait patiently doing nothing for equality before it becomes no longer a "mistake" to pursue it?

          •  and I've waited all my life too (0+ / 0-)

            51 and counting. So what's your point? The fact that I feel there is real risk here is because I feel very strongly about this. It's very, very possible the ruling will mean that neither I nor Edie Windsor will ever see justice, and nor will another generation of LGBT. This is a high stakes gamble, make no mistake about it. We are putting ourselves in the hands of Thomas, Scalia, Alito, Roberts and Kennedy. Even Sotomayor and Kagan aren't even proven quantities, unless you know something I don't, although I imagine it's not hard to assume they will vote favorably. It will all come down to Kennedy, and that is a huge gamble. So pardon me if I think this is a really bad idea. But yes, I will be crying tears of joy should the outcome be as it should.

            BTW, it's already cost me and my ex partner of 14 years much more than it has or will cost Edie when we split up for the very same reasons she has gone to court. She is a hero in my eyes. So, yes, I have literally paid the price.

            Believe me when I say my whole fucking life would have been transformed to not have lived in this society the way it was and the way it is every goddam day of my life, so don't preach to me.

    •  Scalia doesn't always get what he wants (1+ / 0-)
      Recommended by:

      he went down on Gitmo detention cases, ACA, Lawrence, Bowers.

  •  I am curious if (1+ / 0-)
    Recommended by:
    Walt starr

    the Supremes gave standing to the proProp 8 group to appeal this case, because the state itself is no interested in defending the Prop 8.

    This is a controversial move.

  •  This gives the punditocracy... (9+ / 0-)

    five full months to get it wrong.

    Please, George Will, Peggy Noonan, and all you other irrelevant has-beens, tell us what's in your gut (besides the seven martinis you had with lunch).

    How about I believe in the unlucky ones?

    by BenderRodriguez on Fri Dec 07, 2012 at 12:47:52 PM PST

  •  Roberts sided with ACA because (6+ / 0-)

    it's a pro-corporate legislation, giving insurance companies an even greater stranglehold on the health care industry. Unless he sees a similar money trail with DOMA and Prop 8, he will not be the swing vote.

    •  Time to get the Gay Marriage Industrial Complex (3+ / 0-)
      Recommended by:
      mayim, Caelian, growingMajorityMN

      writing letters to him then. Allowing gay marriage would be a huge boom in the wedding industry. There is a lot of pent up demand for gay marriage and allowing it nationally would trigger a tidal wave of bridal waves. ;D

      To me progress is not so much a goal as it is a process and I believe it will not follow a straight course. Remember, the drops of water that form the river may not take the shortest path but they will still reach the ocean.

      by ontheleftcoast on Fri Dec 07, 2012 at 01:01:16 PM PST

      [ Parent ]

    •  I'm just a (3+ / 0-)
      Recommended by:
      bythesea, Scott Wooledge, skrekk

      teeny tiny bit less cynical about him than you. I think he sided with ACA because he heard the tromp tromp tromp of history, and what it would say about his court. At least that's what I'm hoping happened. I wonder which justices decided to take on Prop 8 and DOMA? We'll probably never know.

      These capitalists generally act harmoniously and in concert, to fleece the people... -Abraham Lincoln

      by HugoDog on Fri Dec 07, 2012 at 01:09:29 PM PST

      [ Parent ]

      •  I think you're right on that. (2+ / 0-)
        Recommended by:
        DesertMac, skrekk

        He was worried about the Roberts court's legacy. Which is another reason to believe his vote may not be off the table.

        Mexican Supreme Court just declared marriage equality the law of the land. We're surrounded from Canada to the Rio Grand. UK, Scotland, and France, Uruguay, Illinois, Delaware, Hawaii and a good handful of other states may go that way.

        He can read writing on the wall.

        He's young enough to still be seated when Round 2 comes to his court again and he gets outvoted in 2020... That's bad for business.

    •  THe most likely swing is Kennedy (1+ / 0-)
      Recommended by:

      and not a bad bet. I'm not writing Roberts off, just because he's young and did do some work on gay case Bowers years ago. He knows gay people. If he has a soul, he'll be searching it.

  •  comparison (1+ / 0-)
    Recommended by:

    In 20 years, I expect gay marriage will be more accepted than is marriage between people of different color--racism is more virulent than homophobia.  Not what I expected--but many people have gay children--none  unexpectedly have children of a different race.

    Apres Bush, le deluge.

    by melvynny on Fri Dec 07, 2012 at 12:59:45 PM PST

  •  Prop 8 and DOMA - this could be one of those (0+ / 0-)

    confusing non-judgments where they try to rule Prop 8 unconstitutional and DOMA constitutional.  Both need to go away.

    Once in a while you get shown the light, in the strangest of places if you look at it right.

    by darthstar on Fri Dec 07, 2012 at 01:00:05 PM PST

    •  If anything, the opposite is more likely (2+ / 0-)
      Recommended by:
      bythesea, skrekk

      But I believe they will either uphold the lower court's decision regarding Prop 8 based on the merits or decide that while the state grants the ballot measure sponsors standing to defend it, federal law does not.

      I do believe they will strike down Section 3 of DOMA.

      •  Disagree. (0+ / 0-)

        I think there is a better chance of Prop 8 getting struck down than DOMA, but I am optimistic about both.

        GOP: The Party of Acid rain, Abortion of the American Dream, and Amnesty for Wall Street.

        by Attorney at Arms on Fri Dec 07, 2012 at 01:05:16 PM PST

        [ Parent ]

        •  Actually I don't think the two are related (2+ / 0-)
          Recommended by:
          bythesea, skrekk

          And I believe the chances are far better that they strike down Prop 8 by refusing to grant federal standing to the ballot measure proponents or by referencing Loving as a means to disallow the retraction of a fundamental right that has been granted, even though it would still apply only to California. And further that they will strike down Section 3 of DOMA on federalism and/or equal protection bases. They could also decide that BLAG does not have standing to defend DOMA and do away with the case that way, but if that were to happen, it might not affect the status of the other challenges to DOMA.

          •  Huh? (1+ / 0-)
            Recommended by:
            ...even though it would still apply only to California.
            No, it wouldn't!

            There are now ten states (not counting California) that have legalized gay marriage. If the Ninth Circuit decision on Prop 8 is upheld on its merits, but narrowly tailored to those merits, that means that gay marriage will have become permanent and irrevocable in those ten states. The right-wingers in, say, Iowa, who have been trying to torch marriage equality in that state by unseating the state supreme court justices who established it, might as well give up at that point.

            The Ninth Circuit's "once you've granted marriage equality, you can't take it away" holding protects gay married couples in Washington—and would, if upheld by the Supremes, protect ones in Maryland and New York—just as solidly as it does couples in California.

            •  If the court does not rule on the merits (2+ / 0-)
              Recommended by:
              Jay C, skrekk

              then the Ninth Circuit's previous decision will apply solely to California. It will provide support to future decisions in other states, and in other circuits and will become a very strong precedent, but the direct effect of the Supreme Court declining to overturn Prop 8 on the technical ground that the defendant-intervenors do not have standing to appeal the Ninth Circuit's ruling will have no direct bearing on marriage equality in any other state.

              If the Supreme Court rules on the merits of the case, the effect of their ruling could potentially have far broader effects, to the extent that it would prevent any state that currently has marriage equality from revoking it. However, depending  on how the ruling is crafted it could still be read so as to apply to circumstances specific to California.

              Ideally I would love for the Supreme Court to use Prop 8 in order to decide that all prohibitions against marriage equality are constitutionally invalid but I cannot foresee this court going that far. They are far too invested in the rights of states to define marriage; I doubt the current court would have signed on to Loving vs Virginia, had they been the ones to hear it.

  •  Well, I hope that this means (1+ / 0-)
    Recommended by:

    Utah will be dragged kicking and screaming into the 21st century.

    I just figured that I'd always be calling partner Sockpuppet "Partner", but if marriage equality comes to Utah, maybe I'd switch to "husband".

    Corporations are driven by the bottom line, not by concerns for health, safety or the environment. This is why we need government regulations.

    by the dogs sockpuppet on Fri Dec 07, 2012 at 01:03:34 PM PST

  •  nervous, but hopeful. (2+ / 0-)
    Recommended by:
    bythesea, skrekk

    I don't see how DOMA passes on constitutional grounds. It's such despicable legislation. So, I am hopeful that, just maybe, they will do the right thing and strike it down.

    My guess is they don't make a decision on Prop 8.

    who doesn't want to wear the ribbon?!?

    by redacted stew on Fri Dec 07, 2012 at 01:04:58 PM PST

  •  Equal Protection Under The Law. (1+ / 0-)
    Recommended by:

    Five simple words is all the SC needs to write on their decision.

    "Political ends as sad remains will die." - YES 'And You and I' ; -8.88, -9.54

    by US Blues on Fri Dec 07, 2012 at 01:10:37 PM PST

  •  A rendezvous with destiny, as FDR put it, (0+ / 0-)

    one way or another.

  •  the new Dred Scott Supreme Court? (4+ / 0-)
    Recommended by:
    bwren, Rieux, sarvanan17, Jay C

    Per my comment in another diary, these cases could result in Chief Justice Roberts becoming the new Chief Justice Roger Taney, and this Supreme Court, and its conservative Republican majority, becoming the modern day Dred Scott Supreme Court.  History has not been kind to the 1857 Supreme Court Justices who ruled 7 - 2 that people of African descent (both slave and free) were not protected by the Constitution and were not U.S. citizens, and that human slaves are personal property and the 5th Amendment to the Constitution protects property owners (the white owners of the human slaves) against deprivation of their property (the human slave) without due process of law.  Today, most people are in awe that the Dred Scott Supreme Court Justices could have been so legally and morally wrong and their ruling so at odds with the clear march of history.

    The Roberts Supreme Court now gets its chance to defy the clear march of history.  In countries across many continents, including our neighbors Canada and Mexico, and in several U.S. states, the fundamental and basic fairness of civil law marriage equality (this has nothing to do with requiring any religion or religious organization to recognize gay marriage) is being recognized.

    Do Justice Kennedy and Chief Justice Roberts see Dred Scott's Chief Justice Taney as someone to be emulated, or do they wish to avoid having their current Supreme Court seen, inevitably, years from now as woefully out of touch and willfully blind to the march of history and reason?

  •  July 9, 1868 (1+ / 0-)
    Recommended by:

    That's when the 14th amendment was adopted.  It was passed in accordance with the requirements for amending the constitution.  Seems to me that denying same sex couples the right to marry became illegal on that date.  Let's hope that SCOTUS has read the amendment.

    Picture a bright blue ball just spinnin' spinnin' free. It's dizzy with possibility.

    by lockewasright on Fri Dec 07, 2012 at 01:27:30 PM PST

  •  States' rights: the Repug's favorite defense (2+ / 0-)
    Recommended by:
    apimomfan2, DesertMac

    will be thrown out if they go against either, no?

  •  I wonder if CNN will mess up the ruling (1+ / 0-)
    Recommended by:

    on these cases as well?

  •  Can pack heat but not marry whom one wishes? (1+ / 0-)
    Recommended by:

    What a country.

    You have exactly 10 seconds to change that look of disgusting pity into one of enormous respect!

    by Cartoon Peril on Fri Dec 07, 2012 at 03:53:36 PM PST

  •  Yes, cases are supposed to be ruled on merits, (0+ / 0-)

    precedents, etc., but Roberts can't possibly be blind to the direction the nation is going on this issue (certainly not after November 6) and I can't believe he's not at all concerned with what his legacy will be.  Does he want to vote on a ruling that could someday be compared to "Dred Scott" and "Plessey" or one compared to "Brown" and "Loving"?

    Moreover, as Chief Justice, he would have the prerogative of choosing who to write the opinion (perhaps himself), allowing him to shape the ruling, possibly to a great degree, even if he didn't personally agree with it.  He wouldn't be the first Chief Justice to do so.

    I'm nervous about bringing anything before this particular court, but civil rights issues in this country have traditionally been determined by either the courts or legislation, rather than popular vote (as satisfying as Maryland, Maine, and Washington might have been in shutting up conservatives claiming "the people don't want it"), so I guess we'll just have to wait and see.

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