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When the Obama administration stopped defending the one-man-one-woman-only Defense of Marriage Act in court, Republicans on the House Bipartisan Legal Advisory Group decided to spend taxpayer money to take over that task. By mid-October, as Democrats in the group made known, BLAG had maxed out the $1.5 million cap Speaker John Boehner had placed on such spending. The money had paid for attorney Paul Clement to lose five DOMA cases in a row.

But now that the Supreme Court has decided to review DOMA and California's anti-marriage equality Proposition 8, the House Republican leadership is oddly silent:

The timing is most uncomfortable for House Republicans, who are playing a key role in one of the cases the court agreed to hear.

In June, the House of Representatives told the Supreme Court that the constitutionality of the Defense of Marriage Act “is an issue of great national importance” that urgently requires the justices’ attention. The 1996 law denies federal benefits to same-sex married couples.

But when the court agreed on Friday to hear one of the DOMA cases early next year, the Republican leadership had nothing to say about it.

Anti-equality advocates in the National Organization for Marriage and Family Research Council expressed disappointment when interviewed by Josh Gerstein about the silence. His effort to get the leadership or rank-and-file members of Congress to comment on the Supreme Court's decision to take on DOMA by reviewing Windsor v. United States turned up just one representative willing to say anything on the record. That someone was not exactly high on the national recognition charts: Kansan Tim Huelskamp, an ultraconservative who is just finishing his first term in Congress. Boehner recently purged him from his Budget and Agriculture committee assignments.

Perhaps we're hearing the crickets on the Supreme Court's decision to review because the GOP leadership isn't keen on honing the reputation the party has for extremism after the drubbing it just got from key cohorts of the population, like, for instance, voters aged 18-29, a demographic cohort that favors marriage equality by a 2-1 margin. Perhaps they also don't want to remind youthful and other voters that among the justices on the Supreme Court who will be ruling in the DOMA case is Antonin Scalia, a Republican appointee who has made invidious comparisons between laws banning sodomy and banning murder. Kind of hard to convince people you're not extremists when you've got that besmirchment on your record.

 

Originally posted to Meteor Blades on Tue Dec 11, 2012 at 11:20 AM PST.

Also republished by Daily Kos.

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Comment Preferences

  •  Republi-Jesus knows they're pure of heart (13+ / 0-)

    So I guess that counts for something in the megachurches and with the gun-show crowd.  

    After losing five cases, doesn't Paul Clement owe them a freebie?  I'd love to see him take his crappy arguments to the SCOTUS.  Somebody on that side needs to piss off Anthony Kennedy.

    Citizens United defeated by citizens, united.

    by Dallasdoc on Tue Dec 11, 2012 at 11:47:19 AM PST

  •  $1.5 million (14+ / 0-)

    Isn't that about the same amount of money the House GOP screams & yells about when congress funds public broadcasting?

    It's not easy being a Floridian: PS I'm a lawYER now; no longer a lawSTUDENT.

    by lawstudent922 on Tue Dec 11, 2012 at 11:56:07 AM PST

  •  But...but didn't the GOP ask ring up the judge to (6+ / 0-)

    state their case. Just don't want any of those photos or sound bites ("Nassty uncomfortable things Preciouss. Yess, they makes you late for supper." :(

    "A young man who wishes to remain a sound Atheist cannot be too careful of his reading. There are traps everywhere ". C. S. Lewis

    by TofG on Tue Dec 11, 2012 at 11:57:53 AM PST

  •  what if no one shows up to defend DOMA (9+ / 0-)

    at the Supreme Court hearing?

    I confess I hadn't considered the possibility. I mean, it seems beyond unlikely that Boehner and his cohort won't re-up the BLAG budget. Clement needs his wingnut welfare, you know.

    But what if no more money gets appropriated? Will Clement show up at the Supreme Court pro bono? If no one representing BLAG shows up who will be able to claim standing to argue the pro-DOMA side?

    Fun questions! I had no idea I'd have the tiniest opportunity to ask them.

  •  George Will said the opposition to Same Sex (5+ / 0-)

    marriage was literally dying out...not fast enough on the Supreme Court I fear.

    Per usual, there are four solid votes in favor of overturning DOMA. What are the suggestions for swing votes here? Will Roberts shock the Right again? Is there any  compassion that can be aroused in the remainder?

  •  Boehner wants POTUS to name spending cuts? (11+ / 0-)

    done! Bipartisan Legal Advisory Group

  •  so what happens if they have no money (2+ / 0-)
    Recommended by:
    commonmass, MidwestTreeHugger


    don't they have to file appearances with SCOTUS when it gets put on the court calendar?

    "Kossacks are held to a higher standard. Like Hebrew National hot dogs." - blueaardvark

    by louisev on Tue Dec 11, 2012 at 12:37:51 PM PST

    •  sadly, I'm sure (1+ / 0-)
      Recommended by:
      JeffW

      they could find somebody who be willing to work pro-bono (pro-Boehner?). If we're lucky, it would be Orly Taitz.

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

      by HugoDog on Tue Dec 11, 2012 at 12:46:16 PM PST

      [ Parent ]

      •  Unlikely... (1+ / 0-)
        Recommended by:
        HugoDog

        While the popcorn companies would love that, there are quite a few Lawyers would would jump at the chance to argue in front of the court, even on a case like this.

        •  Agreed. They would, no doubt, (0+ / 0-)

          find someone who could describe the difference between their ass and a hole in the ground.

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

          by HugoDog on Tue Dec 11, 2012 at 01:37:47 PM PST

          [ Parent ]

        •  Good... then let them waste their time on this (0+ / 0-)

          so they can't be up to other no good stuff.

          The modern conservative is engaged in one of man's oldest exercises in moral philosophy;the search for a superior moral justification for selfishness

          by CTMET on Tue Dec 11, 2012 at 02:58:01 PM PST

          [ Parent ]

  •  Well, when Republicans lose, (3+ / 0-)
    Recommended by:
    MidwestTreeHugger, JeffW, LuvSet

    LGBT folks win.

    I'm still pissed at Big Dog though, for DADT which, gladly, is history.

    I am gay, and I'm getting married in the Episcopal Church, just like my great-grandmother did.

    by commonmass on Tue Dec 11, 2012 at 12:39:23 PM PST

    •  still angry about DADT and DOMA (1+ / 0-)
      Recommended by:
      commonmass

      haven't yet forgiven Mr Clinton.

      But he's never asked for my forgiveness.

      Bill Clinton did record a robocall against Prop 8. When I picked up the phone and heard him urging me to vote NO on Prop 8 four years ago I have to say I did feel a softening of my anger towards him.

  •  Whats so interesting in this DOMA thing is the how (0+ / 0-)

    the Court is planning to review it. Basically the first question asked is does the Republican led team have any standing at all to challenge it.

    Basically that could nullify the law without even asking the question of marriage.

    I suspect this is the route the court will take, and then punt the CA decision to the lower court so they can avoid the issue really all together.

    --Enlighten the people, generally, and tyranny and oppressions of body and mind will vanish like spirits at the dawn of day. - Thomas Jefferson--

    by idbecrazyif on Tue Dec 11, 2012 at 12:42:12 PM PST

    •  I don't think ruling against standing would (0+ / 0-)

      nullify the law.  It would just kick the can down the road.

      •  No it would, its all in how the question is done (0+ / 0-)
        The petition for a writ of certiorari is granted. In addition to the question presented by the petition, the parties are directed to brief and argue the following questions: Whether the Executive Branch’s agreement with the court below that DOMA is unconstitutional deprives this Court of jurisdiction to decide this case; and whether the Bipartisan Legal Advisory Group of the United States House of Representatives has Article III standing in this case.
        Essentially what would happen is if the court rules that there is no standing, then there is no disagreement with the lower courts, ergo the law is nullified on face and the ruling of the 1st circuit stands. DOMA falls and the administration can now recognize marriages for benefits.

        Now the question becomes how would such a ruling affect people in say states with constitutional amendments banning same sex marriage.

        How does the federal government know when benefits are there? I mean, the state won't marry them or issue a marriage certificate.

        I suspect this will be outcome so that the above sets up the real Equal Protection under the law battle that same sex proponents should have.

        --Enlighten the people, generally, and tyranny and oppressions of body and mind will vanish like spirits at the dawn of day. - Thomas Jefferson--

        by idbecrazyif on Tue Dec 11, 2012 at 12:56:41 PM PST

        [ Parent ]

      •  It would probably nullify it for narrow (3+ / 0-)
        Recommended by:
        idbecrazyif, craigkg, Miggles

        application. The district findings of Constitutionality would probably stand. Whether they'd just apply to NY state or MA, or just the individual plaintiffs is unclear, even to some very great legal minds I've seen look at it.

        But, it was struck down in district court, and that is likely to stand in some form, which will present it's own interesting legal arguments about the scope of it. (It's probably not in doubt it won't affect other circuits though.)

        And the interesting question is if BLAG has no standing, and DOJ won't defend it, or has no standing, how do we rid our country of it, if no one has standing to take it to the SCOTUS?

        Obviously, legislatively but, that will be a while.

        "The marriage fight is over when we say it's over, and it's over when we win."—Dan Savage

        by Scott Wooledge on Tue Dec 11, 2012 at 01:00:23 PM PST

        [ Parent ]

        •  You should read some of the discussions at (3+ / 0-)
          Recommended by:
          craigkg, Scott Wooledge, LuvSet

          scotusblog over that very thing. Some really smart people literally scratching there heads.

          I find it interesting also that SCOTUS is the one actually bringing up the standing issue. The DOJ didn't even ask for it.

          And that leaves many more scratching their heads wondering, what SCOTUS's angle on requesting this argument?

          --Enlighten the people, generally, and tyranny and oppressions of body and mind will vanish like spirits at the dawn of day. - Thomas Jefferson--

          by idbecrazyif on Tue Dec 11, 2012 at 01:05:43 PM PST

          [ Parent ]

          •  The conservatives on this court... (4+ / 0-)

            ...have been obsessed for years with trying to limit standing as a means of immunizing powerful corporations, their executives and politically powerful politicians from any sort of lawsuit, thereby preventing any means of relief, no matter how proper and legally factual the lawsuit against such persons and "persons" (you know, "Corporations are people, my friend") are.

            "Lesbian and gay people are a permanent part of the American workforce, who currently have no protection from the arbitrary abuse of their rights on the job." --Coretta Scott King

            by craigkg on Tue Dec 11, 2012 at 01:13:50 PM PST

            [ Parent ]

            •  But the scope of a standing decision wouldn't (1+ / 0-)
              Recommended by:
              Scott Wooledge

              change that, well unless they went insane

              ..which is a scary thought

              --Enlighten the people, generally, and tyranny and oppressions of body and mind will vanish like spirits at the dawn of day. - Thomas Jefferson--

              by idbecrazyif on Tue Dec 11, 2012 at 01:19:48 PM PST

              [ Parent ]

            •  Hilarious... (5+ / 0-)

              So they may nullify BLAG and Prop 8 intervener's standing, handing a marriage equality victory to the gays, in service of the corporate overlords?

              So sad... but an outcome I'll accept.

              Really, most American's understanding will be limited to "the Gays won at the Supreme Court."

              "The marriage fight is over when we say it's over, and it's over when we win."—Dan Savage

              by Scott Wooledge on Tue Dec 11, 2012 at 01:20:41 PM PST

              [ Parent ]

            •  Still fighting the ghost of William O. Douglas (4+ / 0-)
              Recommended by:
              LuvSet, Cassandra Waites, craigkg, madhaus

              who famously (and unsuccessfully) argued in  Sierra Club v. Morton that trees should have standing to sue for their own protection:

              The critical question of "standing" would be simplified and also put neatly in focus if we fashioned a federal rule that allowed environmental issues to be litigated before federal agencies or federal courts in the name of the inanimate object about to be despoiled, defaced, or invaded by roads and bulldozers and where injury is the subject of public outrage. Contemporary public concern for protecting nature's ecological equilibrium should lead to the conferral of standing upon environmental objects to sue for their own preservation.
              I'm sure when Roberts was in law school he probably smirked at that idea.

              But in all seriousness I can see that they may be wanting to use these cases to narrow the availability of the courts for regular people (as opposed to corporate people).

              Resist much, obey little. ~~Edward Abbey, via Walt Whitman

              by willyr on Tue Dec 11, 2012 at 02:29:28 PM PST

              [ Parent ]

      •  Windsor won at the district court (2+ / 0-)
        Recommended by:
        willyr, skrekk

        If SCOTUS ruled BLAG does not have standing to appeal the District Court ruling, the Windsor district court case holds and DOMA would be unconstitutional in that court district and presumably in the other districts of the cases already decided that are being defended by BLAG. It seems unlikely that this will happen as it complicates matters of law enormously. You wouldn't have states where DOMA was unconstitutional, but in many cases fractions of states.

        One of the DOJ's arguments regarding DOMA is that it must be unconstitutional everywhere if it is unconstitutional anywhere because it would make enforcement an impossibility. If they negate BLAG's standing, for example, Edie Windsor's marriage to Thea Spyer would be Federally recognized in the Southern District of New York and she would get the $386,000 in estate taxes back, but a married same sex couple living in the Northern or Western District of New York wouldn't have a Federally recognized marriage and would be subject to estate taxes should on of those in the couple die.

        And things get even more complicated when you start talking about a married same sex couple or a person in the couple traveling into a court district where the marriage isn't Federally recognized. In that scenario, if some case arises out of that travel, would the marriage still be valid for Federal purposes? Would such same sex couples literally be virtual prisoners confined to the U.S. District Court district and such districts contiguous to it?

        "Lesbian and gay people are a permanent part of the American workforce, who currently have no protection from the arbitrary abuse of their rights on the job." --Coretta Scott King

        by craigkg on Tue Dec 11, 2012 at 01:07:42 PM PST

        [ Parent ]

    •  No if neither party (2+ / 0-)
      Recommended by:
      gizmo59, idbecrazyif

      has standing the Court can't reach the merits at all.

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

      by Scottie Thomaston on Tue Dec 11, 2012 at 12:59:01 PM PST

      [ Parent ]

      •  Not really, its the 1st decision that sets it up (0+ / 0-)

        Every single person I've talked to over at scotusblog has said that if there ruled no standing, the issue will be the scope of the results.

        It would bring up interesting scenarios and create a true battle with equal protection under the law.

        I suspect scotus doing this because they want to rule on the larger question, not this narrowly defined scope.

        --Enlighten the people, generally, and tyranny and oppressions of body and mind will vanish like spirits at the dawn of day. - Thomas Jefferson--

        by idbecrazyif on Tue Dec 11, 2012 at 01:03:09 PM PST

        [ Parent ]

        •  Huh? (3+ / 0-)

          The Court can't hear a case if no party has standing to be there. It would be dismissed. I'm not sure what you're saying. If they can't hear the Second Circuit case and it gets dismissed then Section 3 of DOMA would be invalid in that circuit or possibly just the district court. But only a decision on the merits would invalidate the law in the United States.

          So there would be a situation where if no one has standing to appear it would just be unconstitutional in one place.

          There is no way for the Court to say there is no standing and still invalidate the law in its entirety.

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

          by Scottie Thomaston on Tue Dec 11, 2012 at 01:10:35 PM PST

          [ Parent ]

          •  The 1st's decision would stand (0+ / 0-)

            Go read their decision, all that would matter would be the scope

            --Enlighten the people, generally, and tyranny and oppressions of body and mind will vanish like spirits at the dawn of day. - Thomas Jefferson--

            by idbecrazyif on Tue Dec 11, 2012 at 01:20:41 PM PST

            [ Parent ]

            •  The Court is holding (1+ / 0-)
              Recommended by:
              idbecrazyif

              the First Circuit case. If they dismiss the Second Circuit case you're saying that the First Circuit decision would stand automatically?

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

              by Scottie Thomaston on Tue Dec 11, 2012 at 01:25:37 PM PST

              [ Parent ]

              •  Thats the held view by most now yes (0+ / 0-)

                The standing issue is interesting because technically speaking this standing issue one could argue that Windsor also has no standing.

                Lyle Denniston has some great write ups about it over at scotusblog

                --Enlighten the people, generally, and tyranny and oppressions of body and mind will vanish like spirits at the dawn of day. - Thomas Jefferson--

                by idbecrazyif on Tue Dec 11, 2012 at 01:35:01 PM PST

                [ Parent ]

                •  But Windsor's standing (2+ / 0-)
                  Recommended by:
                  idbecrazyif, librarisingnsf

                  doesn't come up because the Court granted the Justice Department's petition and not Windsor's. I agree that it would have been an issue - she won her case and then petitioned for cert - but they didn't grant her petition.

                  And I'm not sure how the First Circuit case would be affected by a dismissal of the Second Circuit's. After all if they are still holding it they can just as easily grant it after they dismiss the Second Circuit's case and decide the merits of the First Circuit decision. In other words the First Circuit decision is still in limbo as long as the Court is holding on to it.

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

                  by Scottie Thomaston on Tue Dec 11, 2012 at 01:39:12 PM PST

                  [ Parent ]

                  •  Well thats part of the debate as well, seriously (1+ / 0-)
                    Recommended by:
                    willyr

                    there are some really smart people scratching their heads on how this might play out should it be ruled on standing.

                    Perhaps the court just wants to try and reach back and shrink who qualifies for standing so that they can then in future cases throw out more stuff?

                    Who knows really, I really would love to ask someone like Scalia or Kagan "Just what are you guys thinking here?"

                    --Enlighten the people, generally, and tyranny and oppressions of body and mind will vanish like spirits at the dawn of day. - Thomas Jefferson--

                    by idbecrazyif on Tue Dec 11, 2012 at 01:42:15 PM PST

                    [ Parent ]

                    •  This is very plausible: (4+ / 0-)
                      Perhaps the court just wants to try and reach back and shrink who qualifies for standing so that they can then in future cases throw out more stuff?
                      The Roberts Court has tried to limit who is able to get into court dramatically over the years. They've made the filing of a complaint more difficult and made standing requirements more stringent.

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

                      by Scottie Thomaston on Tue Dec 11, 2012 at 01:45:37 PM PST

                      [ Parent ]

                      •  You should go to law school, Scottie (2+ / 0-)
                        Recommended by:
                        Scottie Thomaston, idbecrazyif

                        I think I suggested that back when you were first posting as Indie.

                        From personal experience I can tell you that there's a lot about being a law student ---and a lawyer---not to like, but there's a lot of interesting work to be done in the civil rights field, and your writing and interests seem like you're a natural.

                        Just my opinion.

                        Cheers.

                        Resist much, obey little. ~~Edward Abbey, via Walt Whitman

                        by willyr on Tue Dec 11, 2012 at 03:21:15 PM PST

                        [ Parent ]

                        •  I've wanted to (3+ / 0-)
                          Recommended by:
                          LuvSet, willyr, idbecrazyif

                          pretty much every waking moment since I was a teenager. Lack of opportunity and money. (Haven't even gone to college.) But I've been teaching myself a lot of this stuff just out of sheer interest (and probably badly.)

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

                          by Scottie Thomaston on Tue Dec 11, 2012 at 05:05:28 PM PST

                          [ Parent ]

                          •  There are lots of was to be an advocate (2+ / 0-)
                            Recommended by:
                            Scottie Thomaston, idbecrazyif

                            and being a lawyer is only one.

                            It can be a long (and expensive) slog, but there are alternative ways to get the requisite degrees/credentials. In some states you used to be able to "clerk" for a lawyer instead of going to law school. Not sure if any jurisdictions still do that.

                            In any case, I encourage you to look into it, and most certainly to keep working in civil rights. We need more like you.

                            Resist much, obey little. ~~Edward Abbey, via Walt Whitman

                            by willyr on Tue Dec 11, 2012 at 06:23:03 PM PST

                            [ Parent ]

                          •  Very few anymore (1+ / 0-)
                            Recommended by:
                            willyr

                            California, Vermont, Virginia, and Washington

                            Maine I think allows 'apprenticeship' while New York requires at least one year of law school at an accredited institution.

                            Which is a shame, because I've known clerks who know more about the law than the actual lawyer they are working for.

                            --Enlighten the people, generally, and tyranny and oppressions of body and mind will vanish like spirits at the dawn of day. - Thomas Jefferson--

                            by idbecrazyif on Wed Dec 12, 2012 at 05:38:39 AM PST

                            [ Parent ]

                      •  Thats what scares me about this case (0+ / 0-)

                        That we'll get what we want now, with sacrifice for later.

                        --Enlighten the people, generally, and tyranny and oppressions of body and mind will vanish like spirits at the dawn of day. - Thomas Jefferson--

                        by idbecrazyif on Wed Dec 12, 2012 at 05:35:24 AM PST

                        [ Parent ]

  •  And here I thought, (2+ / 0-)
    Recommended by:
    librarisingnsf, Meteor Blades

    in their post-election soul-searching, that they decided that the problem wasn't their politics, just their messaging.  If their politics are A-okay, then I would assume they still believe, as they did in June, that challenges to DOMA are "of great national importance."  So maybe they're still working on how to say this without looking like crazy old hate-filled white guys?

    Good luck with that.

    -5.13,-5.64; If you gave [Jerry Falwell] an enema, you could bury him in a matchbox. -- Christopher Hitchens

    by gizmo59 on Tue Dec 11, 2012 at 12:44:12 PM PST

  •  Think you mean (2+ / 0-)
    Recommended by:
    gizmo59, Meteor Blades

    "kind of hard to convince people you're not extremists". Just a small quibble though.

    I think that most of the Republicans who still have a shred of sanity left (and I'd toss Boehner into that mix) recognize that the tide has turned against them on the marriage equality issue. With three states voting to approve marriage equality and a fourth refusing to enshrine discrimination in their state Constitution, voters are showing that they don't really care what people do in their private lives as long as consenting adults are involved.

    While I agree with those that think SCOTUS may punt on the Prop. 8 issue by merely ruling that the anti-equality forces did not have standing to appeal (in which case Judge Walker's original ruling stands), I think a more interesting question would be whether the voters can take away rights granted by a court. Would voters in Kansas, for example, been able to continue segregation regardless of the SCOTUS decision in Brown v. Board, for example?

    "If we ever needed to vote we sure do need to vote now" -- Rev. William Barber, NAACP

    by Cali Scribe on Tue Dec 11, 2012 at 12:49:03 PM PST

  •  Interesting development today on DOMA (6+ / 0-)

    The Supreme Court hired an independent lawyer to argue whether BLAG has standing to defend DOMA.

    Many have speculated that the Standing issues were instrumental to the Court's decision to take the cases.

    This is a data point to support their argument.

    "The marriage fight is over when we say it's over, and it's over when we win."—Dan Savage

    by Scott Wooledge on Tue Dec 11, 2012 at 12:56:31 PM PST

  •  Hmmm, he may be the best player on OUR team. (2+ / 0-)
    Recommended by:
    LuvSet, zekeaz
    The money had paid for attorney Paul Clement to lose five DOMA cases in a row.

    "Push the button, Max!" Jack Lemmon as Professor Fate, The Great Race

    by bartcopfan on Tue Dec 11, 2012 at 03:05:26 PM PST

  •  Scalia didn't get the memo (3+ / 0-)
    Recommended by:
    zekeaz, Cassandra Waites, madhaus

    He's going around defending his opposition to gay marriage at a most inopportune time -- when GOPers are trying to rebrand themselves as less extreme. Scalia is so full of himself he'll never stop sharing his views but, like Akin and Mourdock, he's hurting Republicans.

    The civil rights, gay rights and women's movements, designed to allow others to reach for power previously grasped only by white men, have made a real difference, and the outlines of 21st century America have emerged. -- Paul West of LA Times

    by LiberalLady on Tue Dec 11, 2012 at 05:41:59 PM PST

  •  The marriage equality train has left the station. (1+ / 0-)
    Recommended by:
    Cassandra Waites

    The question now is whether it is the express train or a local.  

    Illinois, Oregon, Rhode Island, and possibly even New Jersey are likely to join the marriage equality community fairly soon, and California will likely repeal Prop 8 at the ballot box if it is not struck down by the Supreme Court first.  

    Soon more than half the population of the country will live in states with same sex marriage.  The endless number of legal issues arising from this inevitable fact will clog the courts for years. Eventually, the Supreme Court will be forced to clean-up the the mess.  The question is whether they will do it piece-meal or all at once.

    All the attention seems to revolve around Kennedy. As senior (oldest) Justice he would have the privilege of writing the majority opinion on what is nothing less than one of the greatest civil rights issues of our time.  Would you turn down an opportunity to make history? Not me.

    But what about Roberts?  It is his court after all, and he is only 57 years old. Unlike Kennedy, he's going to be around a while.  With Obama safely guarding entrance to the court for the next four years, and Hillary Clinton well positioned for an additional eight, the court is very likely to wander away from him ideologically.... and far away at that.  If he decides to get in bed with the conservative wing-nuts on this issue now, he will most likely live to see himself and his opinion reversed by his own court, and his reputation relegated to the darker corners of legal history.  Not a very enticing scenario.

     

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