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Some news came under the radar late last night courtesy of the WSJ. According to this article(link below) the DOJ and Soliciter General have already written a brief in reference to the Prop 8 case but are waiting for the higher ups(i.e. the President) to give the OK. But here's the twist, the brief isn't the swing for the fences opinion some gay advocates were hoping for:

The people familiar with the matter said that Justice Department lawyers are drafting a brief but that top officials have yet to make a final decision whether to submit it. The brief would be signed by Solicitor General Donald Verrilli, who is arguing a separate high-stakes case involving voting rights at the Supreme Court.

...According to a person familiar with the matter, the administration's draft brief takes one of those narrower options, rather than the full-throated endorsement of gay marriage advocated by the duo of prominent attorneys challenging Proposition 8, Republican former Solicitor General Ted Olson and prominent lawyer David Boies, a Democrat.

Now, before people get upset, it is worth remembering that less than a year ago, the prevailing wisdom from a huge chunk of the gay legal community was that pushing for a whole loaf could backfire. That seems to be the concern the administration has today"

But administration lawyers worry that taking such an expansive view in legal briefs could unnerve some justices in the Supreme Court's conservative wing, the people familiar with the matter said.
I still think they're being waaaay too cautious, something this administration is usually guilty of. With the legal brief submitted yesterday from 70 republicans supporting marriage equality, and the briefs being submitted by huge chunks of the Fortune 500 being submitted as well, the administration has the cover and space to push this rock without having it backfire with the conservative majority rejecting the whole enterprise.

I count myself as someone who was a skeptic of this conservative court ever entertaining a constitutional right to marry for gay couples this early, but its getting to be enough of a possibility(say 20%) that the DOJ weighing in on that side would be a worthy endeavor.  

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Comment Preferences

  •  The biggest thing the administration wants (1+ / 0-)
    Recommended by:

    to avoid is bad precedent, and rightly so.  Yes, it would be incredible to have SCOTUS decide that the 14th Amendment includes a right to same-sex marriage.  But I think most people recognize that that's probably NOT going to happen, and its better to make some incremental progress and have the case decided on some narrower ground, then to have SCOTUS come back and emphatically decide that there's no right to same-sex marriage.  

    Better to make a little progress and come back in five years (when perhaps Scalia or Thomas has been replaced) and get the right result, then to have the issue blow up and not be revisited for twenty years.  

    •  There is no "increment" to be had... (0+ / 1-)
      Recommended by:
      Hidden by:

      It is not possible to allow two consenting adult heterosexuals to marry, and forbid two consenting adult homosexuals to marry.

      It is not even possible, in any way shape or form. It is an utter violation of the equal protection clause to arbitrarily allow one and not the other.

      I don't want stupid people to be allowed to marry, so an IQ test is now mandatory for a marriage license, right? No?

      I don't want fat people to marry, so a weight limit is required for a marriage license, right? No?

      And to the extent that "some people" don't like it or aren't ready for it.... FUCK THEM. I have a whole list of shit I'd like to put an end to that I don't like. If we are going to decide what's what based on what "some people" like or not....


      So, I can have that, right?

      •  What the fuck? (1+ / 0-)
        Recommended by:

        HR's because I think you just wished for my grandparents to be killed.

        In general, this rant is long on hope but short on fact.  It is indeed possible for the SCOTUS to "allow two consenting adult heterosexuals to marry, and forbid two consenting adult homosexuals to marry."  It is very possible, even probable.

        So by pretending that doesn't exist you ignore the reasoning of the incremental argument.

        Gay marraige is new before the courts, and before the population.  It takes time for equality to take hold; it is an incremental process, Sir.

        Minority rights should never be subject to majority vote.

        by lostboyjim on Wed Feb 27, 2013 at 01:48:04 PM PST

        [ Parent ]

  •  this court is probably not going to use (3+ / 0-)
    Recommended by:
    sfbob, Dave in Northridge, Eddie L

    Prop 8 to expand it nationwide.

    It really seems likely that the decision will be limited to California (and I really think they took the case because of the Standing issue.)

    but who knows?

    •  Interesting Strategy (1+ / 0-)
      Recommended by:

      When you have two good arguments, and one gives you half a loaf and the other gives you the whole thing, it's tricky to know how much to push the "half a loaf" argument.  You don't want to cut the knees out from under the home run argument by suggesting that you don't really believe it yourself, but at the same time you don't want to lose outright when you could have come away with half of what you wanted.

      Having some advocates push for the whole thing while others provide the "backstop" support for the half a loaf option might be a pretty good coordinated strategy.  I don't know whether there is a fifth vote willing to establish marriage equality in Mississippi or not, but I'd hate to miss out on marriage equality in California by relying solely on a "Mississippi or nothing" strategy.

  •  It's is either a violation of the Equal Protection (0+ / 0-)

    clause, or not. There is no middle ground, no partial solution, no "California only" solution.

    This is a test, a test of whether this SCOTUS is real, or a bunch of cowards and hacks.

    It is a PASS/FAIL test.

    Either something is a RIGHT .... and rights are not granted, rights are something you always had... or it is not a right.

    The answer is both obvious and crystal clear. The question is whether the justices are worthless fucking scumbags that will be flushed down the toilet of history, or are actual intellectually honest dutiful public servants.

    It does not take COURAGE to do the right thing, it just takes cowardice to do the wrong thing.

    •  You are wrong. (0+ / 0-)

      Sorry, but you are.

      A lot of people on the left are a fan of the incremental approach.   You are calling a LOT of careful, considerate, Democrats to be worthless fucks.  Back off.

      Minority rights should never be subject to majority vote.

      by lostboyjim on Wed Feb 27, 2013 at 01:50:20 PM PST

      [ Parent ]

      •  Wrong? No the "alot of people" are fucked (0+ / 0-)

        in the head and  literally have no concept of what the definition of a RIGHT is.

        So, by your, and the "a lot of people", way of thinking we can incrementally end slavery. No need to just declare it illegal, period. No, we can have them first be granted freedom on the weekends. Yeah, that's the ticket, the weekends.

        This way the Republican masters can get their crops in, yet the slaves can get SOME of their freedom, and down the road, when we are "ready" we can go for a full end to slavery.

        Do you have any idea how utterly FUCKED IN THE HEAD that thought process is? Tell it to Spartacus, tell it to Dr King, tell it to Jesus, but I know it's bullshit.

        Doesn't your own "motto" say... Minority RIGHTS should never be subject to majority vote?

        Yeah, I'm telling all 100% of "the Democrats" do grow the hell up. Grow a ball, and do the right thing.

        •  Slavery WAS ended incrementally (0+ / 0-)

          First in the North, then moving slowing South.   As more states were added it was incrementally removed from some (but not others).  Eventually it hit a wall, and resulted in war.  But there was an incremental movement, and at least in the North it was sucessful.

          It may not be right.  It definitely is not what should happen, not is it what you or I believe should happen.  But neither should you just attack those who support that option (including, apparently, the Obama DOJ) "fucked in the head".  

          Minority rights should never be subject to majority vote.

          by lostboyjim on Thu Feb 28, 2013 at 05:59:13 AM PST

          [ Parent ]

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