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Scales of Justice
The Supreme Court of the United States has declared unconstitutional Section 3 of the Defense of Marriage Act, which barred the federal government from recognizing or granting equal benefits to same-sex couples lawfully wed in their home states.

For couples in those twelve states which recognize marriage equality, it is a glorious and long-awaited day. At the same time (and as expected), however, the Court did not address the constitutionality of Section 2 of the Defense of Marriage Act, thus leaving for another day the question of whether the other thirty-eight states can refuse to recognize same-sex marriages, nor did it adopt (or reject) a heightened scrutiny standard so as to allow any strong prediction as to whether the Court will some day recognize a fifty-state right to marriage equality.

The opinion of the Court was written by Justice Kennedy, who also authored the Court's overturning of anti-sodomy laws exactly ten years ago today, and it holds that DOMA is invalid because "no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity." His opinion is joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan; dissents were authored by the Chief Justice, Justice Scalia, and Justice Alito, and below the gnocchi we'll hit all the pertinent details.

But first, please join us and call on Congress to finish the job that the Supreme Court started today. Sign the petition to pass The Respect For Marriage Act and support full marriage equality.

The preliminary question was whether the Court had standing to hear the appeal, given that the United States had (a) lost below but (b) stated its agreement with the Second Circuit's decision finding DOMA unconstitutional. I don't want to spend too much time on this issue, given the stronger interest on the merits, but it bears noting that the Court found that the fact that Edie Windsor had yet to be paid her tax refund by the Treasury was sufficient to create a "case or controversy":

In this case the United States retains a stake sufficient to support Article III jurisdiction on appeal and in proceedings before this Court. The judgment in question orders the United States to pay Windsor the refund she seeks. An order directing the Treasury to pay money is “a real and immediate economic injury,” indeed as real and immediate as an order directing an individual to pay a tax. That the Executive may welcome this order to pay the refund if it is accompanied by the constitutional ruling it wants does not eliminate the injury to the national Treasury if payment is made, or to the taxpayer if it is not. The judgment orders the United States to pay money that it would not disburse but for the court’s order. The Government of the United States has a valid legal argument that it is injured even if the Executive disagrees with §3 of DOMA, which results in Windsor’s liability for the tax. Windsor’s ongoing claim for funds that the United States refuses to pay thus establishes a controversy sufficient for Article III jurisdiction. It would be a different case if the Executive had taken the further step of paying Windsor the refund to which she was entitled under the District Court’s ruling.
The Court declines to decide whether BLAG, representing the interests of the House of Representatives, would have its own standing to appeal, but finds that its "sharp adversarial presentation of the issues satisfies the prudential concerns that otherwise might counsel against hearing an appeal from a decision with which the principal parties agree," especially given the lack of clarity which might follow in the law if the Court didn't rule on this.  As to this point, Justice Scalia pens the principal dissent, from which this is what you mostly need to know:
Our authority begins and ends with the need to adjudge the rights of an injured party who stands before us seeking redress. That is completely absent here. Windsor’s injury was cured by the judgment in her favor. And while, in ordinary circumstances, the United States is injured by a directive to pay a tax refund, this suit is far from ordinary. Whatever injury the United States has suffered will surely not be redressed by the action that it, as a litigant, asks us to take. The final sentence of the Solicitor General’s brief on the merits reads: “For the foregoing reasons, the judgment of the court of appeals should be affirmed.” That will not cure the Government’s injury, but carve it into stone. One could spend many fruitless afternoons ransacking our library for any other petitioner’s brief seeking an affirmance of the judgment against it. What the petitioner United States asks us to do in the case before us is exactly what the respondent Windsor asks us to do: not to provide relief from the judgment below but to say that that judgment was correct. And the same was true in the Court of Appeals: Neither party sought to undo the judgment for Windsor, and so that court should have dismissed the appeal (just as we should dismiss) for lack of jurisdiction. Since both parties agreed with the judgment of the District Court for the Southern District of New York, the suit should have ended there. The further proceedings have been a contrivance, having no object in mind except to elevate a District Court judgment that has no precedential effect in other courts, to one that has precedential effect throughout the Second Circuit, and then (in this Court) precedential effect throughout the United States.
Onto the merits. Section III of the opinion of the court highlights the traditional deference to the states in defining and recognizing marriages, concluding:
The States’ interest in defining and regulating the marital relation, subject to constitutional guarantees, stems from the understanding that marriage is more than a routine classification for purposes of certain statutory benefits. Private, consensual sexual intimacy between two adult persons of the same sex may not be punished by the State, and it can form “but one element in a personal bond that is more enduring.” Lawrence v. Texas, 539 U. S. 558, 567 (2003). By its recognition of the validity of same-sex marriages performed in other jurisdictions and then by authorizing same-sex unions and same-sex marriages, New York sought to give further protection and dignity to that bond. For same-sex couples who wished to be married, the State acted to give their lawful conduct a lawful status. This status is a far-reaching legal acknowledgment of the intimate relationship between two people, a relationship deemed by the State worthy of dignity in the community equal with all other marriages. It reflects both the community’s considered perspective on the historical roots of the institution of marriage and its evolving understanding of the meaning of equality.
With that in mind, Justice Kennedy sets forth your thesis paragraph, which seems to employ the rational-plus-animus test for reviewing this law:
DOMA seeks to injure the very class New York seeks to protect. By doing so it violates basic due process and equal protection principles applicable to the Federal Government. See U. S. Const., Amdt. 5; Bolling v. Sharpe, 347 U. S. 497 (1954). The Constitution’s guarantee of equality “must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot” justify disparate treatment of that group. Department of Agriculture v. Moreno, 413 U. S. 528–535 (1973). In determining whether a law is motived by an improper animus or purpose, “ ‘[d]iscriminations of an unusual character’ ” especially require careful consideration. DOMA cannot survive under these principles. The responsibility of the States for the regulation of domestic relations is an important indicator of the substantial societal impact the State’s classifications have in the daily lives and customs of its people. DOMA’s unusual deviation from the usual tradition of recognizing and accepting state definitions of marriage here operates to deprive same-sex couples of the benefits and responsibilities that come with the federal recognition of their marriages. This is strong evidence of a law having the purpose and effect of disapproval of that class. The avowed purpose and practical effect of the law here in question are to impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages made lawful by the unquestioned authority of the States.
Consider what DOMA did:
DOMA’s principal effect is to identify a subset of state-sanctioned marriages and make them unequal. The principal purpose is to impose inequality, not for other reasons like governmental efficiency. Responsibilities, as well as rights, enhance the dignity and integrity of the person. And DOMA contrives to deprive some couples married under the laws of their State, but not other couples, of both rights and responsibilities. By creating two contradictory marriage regimes within the same State, DOMA forces same-sex couples to live as married for the purpose of state law but unmarried for the purpose of federal law, thus diminishing the stability and predictability of basic personal relations the State has found it proper to acknowledge and protect. By this dynamic DOMA undermines both the public and private significance of state-sanctioned same-sex marriages; for it tells those couples, and all the world, that their otherwise valid marriages are unworthy of federal recognition. This places same-sex couples in an unstable position of being in a second-tier marriage. The differentiation demeans the couple, whose moral and sexual choices the Constitution protects, see Lawrence, 539 U. S. 558, and whose relationship the State has sought to dignify. And it humiliates tens of thousands of children now being raised by same-sex couples. The law in question makes it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives.
The Court spends several paragraphs cataloging many of these federal rights, leading to what would ordinarily be a Big And Important Finish from Justice Kennedy, but is actually kinda restrained for him:
The class to which DOMA directs its restrictions and restraints are those persons who are joined in same-sex marriages made lawful by the State. DOMA singles out a class of persons deemed by a State entitled to recognition and protection to enhance their own liberty. It imposes a disability on the class by refusing to acknowledge a status the State finds to be dignified and proper. DOMA instructs all federal officials, and indeed all persons with whom same-sex couples interact, including their own children, that their marriage is less worthy than the marriages of others. The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity. By seeking to displace this protection and treating those persons as living in marriages less respected than others, the federal statute is in violation of the Fifth Amendment. This opinion and its holding are confined to those lawful marriages.
As for the dissents, while the Chief Justice's comes first in the opinion (seniority), it's Justice Scalia's (joined in full by Justice Thomas) which carries the broadest rhetorical weight. And there's nothing which gets him going quite like telling him he's a hater because he hates:
As I have observed before, the Constitution does not forbid the government to enforce traditional moral and sexual norms. See Lawrence v. Texas, 539 U. S. 558, 599 (2003) (Scalia, J., dissenting). I will not swell the U. S. Reports with restatements of that point. It is enough to say that the Constitution neither requires nor forbids our society to approve of same-sex marriage, much as it neither requires nor forbids us to approve of no-fault divorce, polygamy, or the consumption of alcohol.

However, even setting aside traditional moral disapproval of same-sex marriage (or indeed same-sex sex), there are many perfectly valid—indeed, downright boring—justifying rationales for this legislation. Their existence ought to be the end of this case. For they give the lie to the Court’s conclusion that only those with hateful hearts could have voted “aye” on this Act. And more importantly, they serve to make the contents of the legislators’ hearts quite irrelevant: “It is a familiar principle of constitutional law that this Court will not strike down an otherwise constitutional statute on the basis of an alleged illicit legislative motive.” Or at least it was a familiar principle. By holding to the contrary, the majority has declared open season on any law that (in the opinion of the law’s opponents and any panel of like-minded federal judges) can be characterized as mean-spirited.

The majority concludes that the only motive for this Act was the “bare . . . desire to harm a politically unpopular group.” Bear in mind that the object of this condemnation is not the legislature of some once-Confederate Southern state, but our respected coordinate branches, the Congress and Presidency of the United States. Laying such a charge against them should require the most extraordinary evidence, and I would have thought that every attempt would be made to indulge a more anodyne explanation for the statute. The majority does the opposite—affirmatively concealing from the reader the arguments that exist in justification. It makes only a passing mention of the “arguments put forward” by the Act’s defenders, and does not even trouble to paraphrase or describe them. I imagine that this is because it is harder to maintain the illusion of the Act’s supporters as unhinged members of a wild-eyed lynch mob when one first describes their views as they see them.

So please stop picking on me for opposing marriage equality!
[T]he majority says that the supporters of this Act acted with malice—with the “purpose”  “to disparage and to injure” same-sex couples. It says that the motivation for DOMA was to “demean,” to “impose inequality,” to “impose . . . a stigma,” to deny people “equal dignity,” to brand gay people as “unworthy,” and to “humiliat[e]” their children,

I am sure these accusations are quite untrue. To be sure (as the majority points out), the legislation is called the Defense of Marriage Act. But to defend traditional marriage is not to condemn, demean, or humiliate those who would prefer other arrangements, any more than to defend the Constitution of the United States is to condemn, demean, or humiliate other constitutions. To hurl such accusations so casually demeans this institution. In the majority’s judgment, any resistance to its holding is beyond the pale of reasoned disagreement. To question its high-handed invalidation of a presumptively valid statute is to act (the majority is sure) with the purpose to “disparage,” ”injure,” “degrade,” ”demean,” and “humiliate” our fellow human beings, our fellow citizens, who are homosexual. All that, simply for supporting an Act that did no more than codify an aspect of marriage that had been unquestioned in our society for most of its existence—indeed, had been unquestioned in virtually all societies for virtually all of human history. It is one thing for a society to elect change; it is another for a court of law to impose change by adjudging those who oppose it hostes humani generis, enemies of the human race.

And what Justice Scalia sees coming is the looming menace of fifty-state equality. Grab your pitchforks!
The penultimate sentence of the majority’s opinion is a naked declaration that “[t]his opinion and its holding are confined” to those couples “joined in same-sex marriages made lawful by the State.” I have heard such “bald, unreasoned disclaimer[s]” before. When the Court declared a constitutional right to homosexual sodomy, we were assured that the case had nothing, nothing at all to do with “whether the government must give formal recognition to any relationship that homosexual persons seek to enter.” Now we are told that DOMA is invalid because it “demeans the couple, whose moral and sexual choices the Constitution protects,” with an accompanying citation of Lawrence. It takes real cheek for today’s majority to assure us, as it is going out the door, that a constitutional requirement to give formal recognition to same-sex marriage is not at issue here—when what has preceded that assurance is a lecture on how superior the majority’s moral judgment in favor of same-sex marriage is to the Congress’s hateful moral judgment against it. I promise you this: The only thing that will “confine” the Court’s holding is its sense of what it can get away with.
(I knew you were angry, Nino, but that's no excuse for ending a sentence with a preposition. Anyway:)
I do not mean to suggest disagreement with The Chief Justice’s view that lower federal courts and state courts can distinguish today’s case when the issue before them is state denial of marital status to same-sex couples—or even that this Court could theoretically do so. Lord, an opinion with such scatter-shot rationales as this one (federalism noises among them) can be distinguished in many ways. And deserves to be. State and lower federal courts should take the Court at its word and distinguish away.

In my opinion, however, the view that this Court will take of state prohibition of same-sex marriage is indicated beyond mistaking by today’s opinion. As I have said, the real rationale of today’s opinion, whatever disappearing trail of its legalistic argle-bargle one chooses to follow, is that DOMA is motivated by “ ‘bare . . . desire to harm’ ” couples in same-sex marriages. How easy it is, indeed how inevitable, to reach the same conclusion with regard to state laws denying same-sex couples marital status.

And he'd rather let Us, The People decide. After rattling of the varying results in marriage equality referenda, he writes:
In the majority’s telling, this story is black-and-white: Hate your neighbor or come along with us. The truth is more complicated. It is hard to admit that one’s political opponents are not monsters, especially in a struggle like this one, and the challenge in the end proves more than today’s Court can handle. Too bad. A reminder that disagreement over something so fundamental as marriage can still be politically legitimate would have been a fit task for what in earlier times was called the judicial temperament. We might have covered ourselves with honor today, by promising all sides of this debate that it was theirs to settle and that we would respect their resolution. We might have let the People decide.

But that the majority will not do. Some will rejoice in today’s decision, and some will despair at it; that is the nature of a controversy that matters so much to so many. But the Court has cheated both sides, robbing the winners of an honest victory, and the losers of the peace that comes from a fair defeat. We owed both of them better. I dissent.

The Chief Justice, on the other hand, is a bit milder in his separate dissent. While he notes that "interests in uniformity and stability amply justified Congress’s decision to retain the definition of marriage that, at that point, had been adopted by every State in our Nation, and every nation in the world," he'd rather focus on the limits of the majority decision than go full-tilt bonkers; indeed, he didn't sign onto any part of the Scalia dissent except for its holding on standing:
The Court does not have before it, and the logic of its opinion does not decide, the distinct question whether the States, in the exercise of their “historic and essential authority to define the marital relation,” may continue to utilize the traditional definition of marriage.

The majority goes out of its way to make this explicit in the penultimate sentence of its opinion. It states that “[t]his opinion and its holding are confined to those lawful marriages,”—referring to same-sex marriages that a State has already recognized as a result of the local “community’s considered perspective on the historical roots of the institution of marriage and its evolving understanding of the meaning of equality.” Justice Scalia believes this is a “ ‘bald, unreasoned disclaime[r].’” In my view, though, the disclaimer is a logical and necessary consequence of the argument the majority has chosen to adopt. The dominant theme of the majority opinion is that the Federal Government’s intrusion into an area “central to state domestic relations law applicable to its residents and citizens” is sufficiently “unusual” to set off alarm bells. I think the majority goes off course, as I have said, but it is undeniable that its judgment is based on federalism....

We may in the future have to resolve challenges to state marriage definitions affecting same-sex couples. That issue, however, is not before us in this case, and we hold today that we lack jurisdiction to consider it in the particular context of Hollingsworth v. Perry. I write only to highlight the limits of the majority’s holding and reasoning today, lest its opinion be taken to resolve not only a question that I believe is not properly before us—DOMA’s constitutionality—but also a question that all agree, and the Court explicitly acknowledges, is not at issue.

Justice Alito, in a dissent also joined by Justice Thomas, has his on theory of standing I'm not going to get into. Instead, he wants to write about what he thinks marriage equality might change, and how that unknown makes him humble:
What Windsor and the United States seek, therefore, is not the protection of a deeply rooted right but the recognition of a very new right, and they seek this innovation not from a legislative body elected by the people, but from unelected judges. Faced with such a request, judges have cause for both caution and humility.

The family is an ancient and universal human institution. Family structure reflects the characteristics of a civilization, and changes in family structure and in the popular understanding of marriage and the family can have profound effects. Past changes in the understanding of marriage—for example, the gradual ascendance of the idea that romantic love is a prerequisite to marriage—have had far-reaching consequences. But the process by which such consequences come about is complex, involving the interaction of numerous factors, and tends to occur over an extended period of time.

We can expect something similar to take place if same-sex marriage becomes widely accepted. The long-term consequences of this change are not now known and are unlikely to be ascertainable for some time to come. There are those who think that allowing same-sex marriage will seriously undermine the institution of marriage. See, e.g., S. Girgis, R. Anderson, & R. George, What is Marriage? Man and Woman: A Defense 53–58 (2012); Finnis, Marriage: A Basic and Exigent Good, 91 The Monist 388, 398 (2008). Others think that recognition of same-sex marriage will fortify a now-shaky institution. See, e.g., A. Sullivan, Virtually Normal: An Argument About Homosexuality 202–203 (1996); J. Rauch, Gay Marriage: Why It Is Good for Gays, Good for Straights, and Good for America 94 (2004).

At present, no one—including social scientists, philosophers, and historians—can predict with any certainty what the long-term ramifications of widespread acceptance of same-sex marriage will be. And judges are certainly not equipped to make such an assessment. The Members of this Court have the authority and the responsibility to interpret and apply the Constitution. Thus, if the Constitution contained a provision guaranteeing the right to marry a person of the same sex, it would be our duty to enforce that right. But the Constitution simply does not speak to the issue of same-sex marriage. In our system of government, ultimate sovereignty rests with the people, and the people have the right to control their own destiny. Any change on a question so fundamental should be made by the people through their elected officials.

He doesn't want the court to determine whether "consent" marriage has supplanted "traditional"/"conjugal" marriage in the culture, and would rather leave it to the states. As for DOMA's purpose?
Congress used marital status as a way of defining this class—in part, I assume, because it viewed marriage as a valuable institution to be fostered and in part because it viewed married couples as comprising a unique type of economic unit that merits special regulatory treatment. Assuming that Congress has the power under the Constitution to enact the laws affected by §3, Congress has the power to define the category of persons to whom those laws apply.
Bottom line: the federal government can no longer deny benefits to legally married couples who happen to be same-sex. Such bigotry is no longer enshrined in the United States Code. Twelve states down, thirty-eight to go.

Originally posted to Adam B on Wed Jun 26, 2013 at 09:02 AM PDT.

Also republished by Daily Kos.

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Comment Preferences

  •  Thanks Adam! (15+ / 0-)

    Always love your ability to synthesize the rulings into plain language.

  •  Rational basis or strict scrutiny? (4+ / 0-)

    Adam, I haven't had a chance to read the entire decision yet...what does Kennedy say abut the standard that should be applied with regards to sexual orientation?

    Black Holes Suck.

    by Pi Li on Wed Jun 26, 2013 at 09:13:40 AM PDT

    •  He really doesn't say. (8+ / 0-)

      It comes out sounding like rational-plus-animus knocks down DOMA, but says nothing about laws which affect gays generally.

      •  There is no more real "scrutiny" test. (4+ / 0-)

        I don't think that, going forward, there is anything other than a vague standard of Constitutional scrutiny. Yesterday, the Court signaled that in things normally reserved for strict scrutiny they were going to wear rose-colored glasses (I know that wasn't exactly what was at stake in the VRA case, but in general the issue of race was) and in cases where legislative deference was supposed, they will still search.

        In other words, I think the whole series of tests for level of scrutiny is more or less dead in favor of an ad hoc approach.

        Anyway, can I get an up-swag for "a lot of people owe Ted Olson an apology'?

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

        by Attorney at Arms on Wed Jun 26, 2013 at 09:29:54 AM PDT

        [ Parent ]

        •  not me (6+ / 0-)

          Called it on day one.

          If what you're claiming is that the Court is a political body making political conclusions, dressing up its political decisions with the rhetoric of law and principle, well ... yeah, I can see that point.

        •  I agree with you: (3+ / 0-)
          Recommended by:
          Adam B, BenjaminDisraeli, milton333

          Two caveats:  I am no judge, just a well educated, former practicing attorney/professor and two  - I defer to NO ONE in my defense of sexual equality, I am very happy with the result.

          But, this was an astonishingly bad piece of legal gymnastics - IMHO. First,  despite every fiber of my being wanting to find marriage laws to be violative of equal protection, I am not sure that I would have voted to have the standing issue with the majority. The basic fact is that the DOJ  and the Plaintiff were in agreement as to the law, the case had been settled, there is simply no way there was a traditional case or controversy.

          Second, I don't see how this case can be analyzed, it doesn't rely on 14 Amendment due process/ equal protection, there is no "strict scrutiny" - - I just don't get it.

          Oh well, the case books are littered with shitty opinions that have screwed over the powerless, I'll take a win any way we can get it.

          Blessed are the peacemakers, the poor, the meek and the sick: The "party of Jesus" wouldn't invite him to their convention - fearing his "platform."

          by 4CasandChlo on Wed Jun 26, 2013 at 09:39:19 AM PDT

          [ Parent ]

      •  What I find interesting... (2+ / 0-)
        Recommended by:
        andalusi, erichiro that this decision is released on the last day of term, after the VRA decision. Doesn't the Chief Justice determine this?

        Roberts is pretty savvy about such things, and even though he was in the minority on DOMA, he may have wanted this to be the final word of this term to wash a bit of the bad taste out of people's mouth after yesterdays decision.

        At a minimum, it's changed the subject, albeit however briefly.

        Black Holes Suck.

        by Pi Li on Wed Jun 26, 2013 at 09:36:06 AM PDT

        [ Parent ]

      •  Saying nothing (0+ / 0-)

        probably means they aren't 5 votes for strict scrutiny - yet.  He may be waiting to extend Loving on a 6-3 - which means another justice.

          •  Didn't the District Court judge in Perry (1+ / 0-)
            Recommended by:

            devise a new standard for sexual orientation, somewhere between heightened and rational? I seem to recall that, but I can't locate the exact phrase. Maybe something like rational plus, and that is what the Supreme Court is saying in Windsor, but they just aren't referring to it that way in the majority opinion.

            The District Court judge, in her ruling, did reference the same animus against gay/lesbians as the motivation for proponents of Prop 8 as Kennedy has in his opinion.

            Together, could this be the current standard which should apply to laws governing the rights and actions of gays and lesbians -- rational plus animus -- somewhere between heightened applied to gender and rational, which is applied in deference to legislative authority?

            Dear Fundamentalist Christians, "The Flintstones" was not a reality show. Sincerely, The Rational World.

            by BlueMindState on Wed Jun 26, 2013 at 12:12:04 PM PDT

            [ Parent ]

            •  What Judge Walker said (0+ / 0-)
              As presently explained in detail, the Equal Protection Clause renders Proposition 8 unconstitutional under any standard of review. Accordingly, the court need not address the question whether laws classifying on the basis of sexual orientation should be subject to a heightened standard of review.

              Although Proposition 8 fails to possess even a rational basis, the evidence presented at trial shows that gays and lesbians are the type of minority strict scrutiny was designed to protect. Massachusetts Board of Retirement v Murgia, 427 US 307, 313 (1976) (noting that strict scrutiny may be appropriate where a group has experienced a “‘history of purposeful unequal treatment’ or been subjected to unique disabilities on the basis of stereotyped characteristics not truly indicative of their abilities.”)

              The trial record shows that strict scrutiny is the appropriate standard of review to apply to legislative classifications based on sexual orientation. All classifications based on sexual orientation appear suspect, as the evidence shows that California would rarely, if ever, have a reason to categorize individuals based on their sexual orientation.

              The problem with rational-plus-animus is that it affords no relief when it comes to old laws passed without regard to impact on gays at all.
          •  Equally likely (0+ / 0-)

            I am now really beginning to think Kennedy has a long term vision here - which I didn't before.

            It could be on hell of a legacy (if we forget the other votes).

  •  i believe this is the first time (7+ / 0-)

    the gnocchi has been called that on the front page. i guess that makes it official...

    a historic day in so many ways!

    The cold passion for truth hunts in no pack. -Robinson Jeffers

    by Laurence Lewis on Wed Jun 26, 2013 at 09:13:48 AM PDT

  •  Here's What Caught My Eye (5+ / 0-)
    Bear in mind that the object of this condemnation is not the legislature of some once-Confederate Southern state...
    Scalia added: "Though if it were, that would be totes cool, because like I said a couple days ago they are SO down with blacks these days you guys."

    Too Folk For You. - Schmidting in the Punch Bowl - verb - Committing an unexpected and underhanded political act intended to "spoil the party."

    by TooFolkGR on Wed Jun 26, 2013 at 09:18:19 AM PDT

  •  What does this ruling mean for .... (6+ / 0-)

    civil union states like CO?

    No snowflake in an avalanche ever feels responsible.

    by Magster on Wed Jun 26, 2013 at 09:20:07 AM PDT

    •  It means there will be serious pressure for (5+ / 0-)

      them to do away with civil unions in favor of marriage equality.

    •  That would depend (0+ / 0-)

      on other laws in those states.  Some have strict definition laws, stating that "marriage is one man and one woman".

      I am not religious, and did NOT say I enjoyed sects.

      by trumpeter on Wed Jun 26, 2013 at 10:07:59 AM PDT

      [ Parent ]

      •  We have data on what might be possible where (1+ / 0-)
        Recommended by:

        I Diaried some of it in April in

        Gay marriage: How are we doing?

        I did not use the preferred phrase "marriage equality" there, because I was following the language of the laws in question.

        Nate Silver built a model after the Iowa Supreme Court legalized "gay marriage"/marriage equality there which shows Mississippi as the last state to tip in public opinion, perhaps in 2024. Of course, it takes substantially longer to vote in new legislators and get laws and Constitutional amendments done or undone, as the case may be.

        Combining the polling data and the legal data gives a rough target list. For example, my Diary showed Rhode Island as one of the states with the greatest disparity between popular approval and the state of the law, and sure enough RI approved marriage equality in May. Delaware came in a bit sooner than this measure indicated it would.

        Nevada, Alaska, and Oregon would be the next targets by these crude measures, followed by Hawaii, New Jersey, and Colorado, but the people actually doing the heavy legal and political lifting on LGBT rights have a great deal more information about them, and about every other state. The legal and political landscape is significantly different in each case. I hope that we can get state-by-state diaries telling us both how it is going and how others can help.

        Ceterem censeo, gerrymandra delenda est

        by Mokurai on Wed Jun 26, 2013 at 01:09:04 PM PDT

        [ Parent ]

    •  Nothing in the short term. (0+ / 0-)

      Absent a grass-roots drive to change the Colorado Constitution, nothing will change in the short term.

      The next Federal case, which might even come from Colorado, will involve a same-sex couple from a marriage equality state whose marriage is not recognized by a state with a Constitutional ban on same-sex marriages. Kennedy basing today's ruling on Equal Protection makes it likely that even states that ban same sex marriages will be required to recognize valid out of state marriages, just as states with more restrictions are forced to recognize Nevada marriages, or states than ban marrying first cousins must recognize such marriages from other states.

      Workers of the world, unite! You have nothing to lose but your shackles. It is by the picket line and direct action that true freedom will be won, not by electing people who promise to screw us less than the other guy.

      by rhonan on Wed Jun 26, 2013 at 01:10:43 PM PDT

      [ Parent ]

  •  Could taking this off the table as a national (2+ / 0-)
    Recommended by:
    Bob Love, foresterbob

    issue weaken the turnout of religious fundamentalists for Republicans?  Maybe its just wishful thinking, but if one of their key "social" issues (homosexuality, the other usually being abortion, on which they are not doing too well these days - although we cannot let our guard down!) is off the table will it weaken religious fundamentalist turnout.  I know they have nowhere to go but the hatred partyGOP, but if even a few percentage stay home it can swing elections.

  •  Did Kennedy not have the votes for Prop 8? (8+ / 0-)

    Reading Kennedy's eloquent dissent in Perry and looking at the strange line-up, I wonder if he wrote a majority opinion that lost Breyer and Ginsburg and Sotomayor  or if they just weren't ready to do it.  His dissent in Perry is based on the importance of the initiative process in California (his home state) and it is absolutely correct.  Roberts was dishonest in his majority opinion.  Alito and Thomas joined Kennedy because they clearly wanted to address the merits and uphold Prop 8.  Kagan presumably wanted to join with Kennedy and overturn it.  Scalia would have joined them on standing, but then they wouldn't have a majority for any position, or might have lost 5-4.  Scalia had to join Roberts and do it on standing or he would have lost it all.  Really interesting.   Or maybe Breyer does agree on cutting back on standing and Ginsburg joined in, although I find that puzzling.

    Kennedy's dissent is really eloquent, especially in the last paragraph where he reminds Roberts that government comes from the people up not from the government down.  To bad he doesn't have the same empathy for racial minorities.  

    Don't bet your future on 97% of climate scientists being wrong. Take action on climate now!

    by Mimikatz on Wed Jun 26, 2013 at 09:23:15 AM PDT

  •  Kennedy wanted to decide Prop 8 case on merits? (3+ / 0-)

    Based on this opinion and on his dissent in Perry, it certainly looks that way.

    That surprises me, I thought Kennedy would have been first in the line of justices eager to punt on that case.  Instead, given Perry, Windsor, and Fisher, the Chief Justice has established himself as the Chief Punter.  (Except, of course, for Roberts' lifelong crusade to eviscerate the Voting Rights Act; he went out of his way to make sure that happened.)

    I agree with Roberts' view of standing as expressed in Perry, because I agree that the state governor and AG have the authority to make decisions on how to proceed with litigation to which the state is a party, whether or not it involves voter-passed initiatives.  But that's a topic for another thread, I suppose.

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

    by MJB on Wed Jun 26, 2013 at 09:23:16 AM PDT

    •  Well (0+ / 0-)

      Take my input fwiw, because I disagree with the position on standing. They should lean towards deciding cases when they can, because it takes so much effort and resources to get these cases before them and on issues of national importance where we've come to take the Court as the last forum, punting just creates delays, and, well, justice delayed is justice denied.

      I'm glad for the result, of course. I sure hope that when it comes to a Republican California governor or AG that we have a statute in place for a Special Solicitor to defend laws we like. (Of course, I hate ballot initiatives, but it's unclear that this standing issue is limited just to those. I could imagine them refusing to enforce California's global warming laws, for example.)

      Anyway, it does look like Kennedy wanted to decide the case on the merits and strike Prop 8. I think that basically means that as long as this Court is constituted thusly, people should understand that it is likely to uphold marriage equality and hopefully that will dampen legal challenges from the other side and make some legislatures get real.

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

      by Attorney at Arms on Wed Jun 26, 2013 at 09:34:48 AM PDT

      [ Parent ]

      •  It applies to enforcement of any state law (3+ / 0-)
        Recommended by:
        Adam B, sfbob, bythesea

        ... and, IMO, that's how it should be.

        The governor and attorney general are elected officials, they have authority, and they are accountable to the voters for their litigation-related decisions just as for their other decisions.  For other laws, they might enforce but you or I might not approve -- e.g., they might let a willful polluter of the ocean off the hook with a mild fine whereas you or I might have insisted on a crippling fine and/or requiring the polluter to pay every last penny of the cleanup costs.

        Voters who disapprove of an AG's refusal to enforce a voter-passed initiative, or any other state law, or who disapprove of how the laws are enforced, can vote the AG out of office.  If you think the AG isn't doing his/her job correctly, vote 'em out.  That's why we have elections.

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

        by MJB on Wed Jun 26, 2013 at 09:47:10 AM PDT

        [ Parent ]

    •  California law is specifically to the contrary (2+ / 0-)
      Recommended by:
      MJB, Adam B

      It does allow proponents of an initiative to join in, and the CA Supreme Court specifically said the proponents had standing.  That was Kennedy's point.  Granted the federal courts are the final arbiter of standing in federal court, the Supremes have cut back way too far on standing in recent years.

      So the fact that Breyer, Ginsburg and Sotomayor joined Roberts still puzzles me.

      Don't bet your future on 97% of climate scientists being wrong. Take action on climate now!

      by Mimikatz on Wed Jun 26, 2013 at 09:42:57 AM PDT

      [ Parent ]

      •  The CA Supreme Court (3+ / 0-)
        Recommended by:
        KingBolete, sfbob, bythesea

        Cannot really rule on federal standing to sue. That's the heart of the issue.

      •  "Standing in federal court" (4+ / 0-)
        Recommended by:
        Adam B, wadingo, sfbob, bythesea

        That's the key.  The majority says, correctly, that states can't change the federal rules as to who has standing in federal court.

        I suppose that means that initiative proponents can participate in state court in California, but not federal court.  I disagree with the state rule, but the state is free to make it, limited to state-court venues.

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

        by MJB on Wed Jun 26, 2013 at 09:51:23 AM PDT

        [ Parent ]

        •  I agree, but the Supremes have cut back too far (0+ / 0-)

          i have disagreed with them since Lujan.  My question is whether Breyer and especially Ginsburg and Sotomayor really take the narrow view of standing or whether it was something more.

          Don't bet your future on 97% of climate scientists being wrong. Take action on climate now!

          by Mimikatz on Wed Jun 26, 2013 at 10:14:39 AM PDT

          [ Parent ]

  •  Fox News coverage of this ruling... (14+ / 0-)

    They are going on and on about Benghazi.

    John Roberts? Melville Fuller?? WTF is the difference???.

    by Walt starr on Wed Jun 26, 2013 at 09:24:00 AM PDT

  •  Scalia (6+ / 0-)

    is a long-winded son of a bitch. He is a law student's nightmare.

    He's also a bastard whose poor health will catch up with him soon.

    "We forward in this generation, triumphantly."

    by Grizzard on Wed Jun 26, 2013 at 09:24:08 AM PDT

    •  I really hate to wish ill upon anyone (3+ / 0-)
      Recommended by:
      kbroers, mconvente, trumpeter

      however, he has done enough damage that if he died today I would think it was not a moment too soon. and maybe a little late.

      That passed by; this can, too. - Deor

      by stevie avebury on Wed Jun 26, 2013 at 09:46:10 AM PDT

      [ Parent ]

      •  Not much choice (1+ / 0-)
        Recommended by:
        stevie avebury

        The problem with life-time appointments is you have to root either for retirement or nature to end their tenure; of course that seems to also be the de facto situation for many of our Congressional officeholders as well.

        My country, right or wrong; if right, to be kept right; and if wrong, to be set right.—Carl Schurz
        "Shared sacrifice!" said the spider to the fly.—Me

        by KingBolete on Wed Jun 26, 2013 at 10:53:17 AM PDT

        [ Parent ]

  •  The right outcome (7+ / 0-)

    IMO, the way rights for GLBT are developing is most healthy and sustainable for long term change.  In this case society is leading, not the courts or legislature, in moving forward on its own towards expanding freedom and liberty. It's really quite extraordinary what's going on, and in 5 years same sex marriage will be legal in all 50 states, and the idea that it was any different will be baffling to future generations.

    It hasn't really been any action by the executive, legislative, or judicial branch that has accomplished this, though they play their parts. It's people coming out, and their friends and neighbours realising that there's nothing ominous or scary about being gay. The positive way the media has portrayed GLBT individuals that has helped the societal shift as well.

    The more GLBT individuals feel a part of society, and not ostracised, or somehow abnormal, the more will come out, and the more that happens the attitudes of their friends and family will change.

    Yeah, today was a BFD.

    Black Holes Suck.

    by Pi Li on Wed Jun 26, 2013 at 09:24:32 AM PDT

    •  Plus the environment since we reached the (0+ / 0-)

      tipping point in public opinion has been encouraging for straight supporters to come out of the political closet and say with steadily increasing assurance that they are supporters.

      Ceterem censeo, gerrymandra delenda est

      by Mokurai on Wed Jun 26, 2013 at 01:15:56 PM PDT

      [ Parent ]

  •  Hey Scalia you dipshit! (22+ / 0-)
    We have no power under the Constitution to invalidate this democratically adopted legislation.
    You just did that yesterday with your ruling on the Voting Rights Act.

    Do you even fucking hear yourself?

    Also, I can kill you with my brain.

    by Puffin on Wed Jun 26, 2013 at 09:26:31 AM PDT

    •  It's only unfair if the other side uses it, in (9+ / 0-)

      other words - "the end justifies the means." That is Scalia in a nut-shell.

      Kinda sweet that this came 10 years (to the day) of Lawrence v. Texas - in which Scalia predicted that the decision would lead to gay marriage (as a horrible thing in his mind). We'll at least we know that Scalia was correct and prescient about marriage equality.

    •  We Have No Power, etc. (1+ / 0-)
      Recommended by:

      Unfortunately, that is not exactly what he said:

      This case is about power in several respects. It is about the power of our people to govern themselves, and the power of this Court to pronounce the law. Today’s opinion aggrandizes the latter, with the predictable consequence of diminishing the former. We have no power to decide this case. And even if we did, we have no power under the Constitution to invalidate this democratically adopted legislation. The Court’s errors on both points spring forth from the same diseased root: an exalted conception of the role of this institution in America.
      But wait, the reader wonders—Windsor won below, and so cured her injury, and the President was glad to see it. True, says the majority, but judicial review must march on regardless, lest we “undermine the clear dictate of the separation-of-powers principle that when an Act of Congress is alleged to conflict with the Constitution, it is emphatically the province and duty of the judicial department to say what the law is.

      That is jaw-dropping. It is an assertion of judicial supremacy over the people’s Representatives in Congress and the Executive. It envisions a Supreme Court standing (or rather enthroned) at the apex of government, empowered to decide all constitutional questions, always and every- where “primary” in its role.

      In other words, declaring the compatibility of state or federal laws with the Constitution is not only not the “primary role” of this Court, it is not a separate, free-standing role at all. We perform that role incidentally—by accident, as it were—when that is necessary to resolve the dispute before us. Then, and only then, does it become “‘the province and duty of the judicial department to say what the law is.’”

      N.B. "Windsor won below" means in won in a lower court.

      So, his first objection is to hearing/deciding the case at all. Then he takes a deep breath and starts slinging verbal s$%# in a prose style totally inappropriate to his rank and station. He is a big-mouthed ass.

      "Facts are meaningless. You could use facts to prove anything even remotely true." -- H. Simpson

      by midnight lurker on Wed Jun 26, 2013 at 11:00:26 AM PDT

      [ Parent ]

  •  The next steps (6+ / 0-)

    Today's ruling was step one.  Step two, in a few years, will be to require full faith and credit so that states must recognize each other's marriages.  And then a few years later, gay marriage will be recognized as a national right--although it is possible that steps 2 and 3 will collapsed together because of the absurdity of having Oklahoma or any other such state recognize gay marriages from out of state but not allow their own citizens to into into same-sex marriages.

    •  That's probably not an absurdity (6+ / 0-)

      I believe the states recognize common-law marriages that were lawfully contracted in other states, but could not be contracted in that particular state.  I think it is the same case with marriage between first cousins.

      So, I think it could end up being the case that states don't recognize same-sex marriages performed within their borders, but are required to recognize such marriages performed elsewhere without being ridiculous.

      •  Also age restrictions (3+ / 0-)
        Recommended by:
        KingBolete, Adam B, jncca

        young couples can get married much younger in some states than in others, they are also always acknowledged by any state they travel too.

        Minority rights should never be subject to majority vote.

        by lostboyjim on Wed Jun 26, 2013 at 10:20:06 AM PDT

        [ Parent ]

        •  There is the public policy exception (1+ / 0-)
          Recommended by:
          Adam B

          to such recognition. I don't know how it's applied, or even if it's still applied at all in any specific cases. After all Section 2 of DOMA, which is not currently (emphasize that: currently) under challenge provides all the necessary ammunition a state would need in order to ignore a legally contracted same-sex marriage. I presume the public policy exception is a hold-over from the days of anti-miscegenation laws but in any case it's still around. I would further presume that its application would need to somehow be circumscribed or it would theoretically result in any state being able to deny recognition to any marriage it feels disinclined to recognize.

          Scalia is probably correct in his assertion that the current DOMA decision will create opportunities to challenge bans on same-sex marriage generally; the difference between him and me is that I welcome that fact while he abhors it.

          I do think that the next reasonable target will be Section 2 of DOMA. All it'll take will be for one gay or lesbian couple, legally married in one state, to relocate, perhaps because of a job transfer (this would be good in a way since the move would in some sense be less than entirely voluntary), to another state that refuses to recognize their marriage.

          There is another wrinkle as well: a gay or lesbian couple could marry in California and then one of the individuals involve could hop across the Colorado River and marry someone of the opposite sex in Arizona. Since Arizona does not solemnize same-sex marriages and does not recognize such marriages contracted elsewhere, what would be the legal impediment? As far as Arizona's concerned, either individual would be single.

          And once Section 2 is gone, what's left? Section 1 is merely the definition of the act itself.

        •  Not to mention marriage between related (0+ / 0-)

          persons, like first-cousins. That restriction exists in some states and not others.

          Dear Fundamentalist Christians, "The Flintstones" was not a reality show. Sincerely, The Rational World.

          by BlueMindState on Wed Jun 26, 2013 at 12:35:33 PM PDT

          [ Parent ]

  •  Now the fun begins... (2+ / 0-)
    Recommended by:
    Magster, CoyoteMarti

    What about states like Colorado where we have 'civil unions' that are 'equal except in name only'?  Does the federal government recognize those as marriage?  What about soldiers that are married in a 'equal marriage state' but are serving in another state?  I think SCOTUS tried to split the baby and all they left are two halves of a baby.

    'Where free unions and collective bargaining are forbidden, freedom is lost' - Ronald Reagan, Communist

    by RichM on Wed Jun 26, 2013 at 09:30:01 AM PDT

    •  Must act (4+ / 0-)
      Recommended by:
      Bob Love, Aunt Pat, sfbob, bythesea

      No, the Fed government will not recognize those as marriages, but now you have a much more powerful argument about why you need to have marriage equality in the state -- that you do face discrimination at the federal level with civil unions.

      •  It won't recognize civil unions, (2+ / 0-)
        Recommended by:
        sfbob, bythesea

        but it should recognize out-of-state marriages. Civil servants and military personnel can probably rejoice.

        "Let’s just move on, treat everybody with firmness, fairness, dignity, compassion and respect. Let’s be Marines." - Sgt. Maj Michael Barrett on DADT repeal

        by kyril on Wed Jun 26, 2013 at 10:16:15 AM PDT

        [ Parent ]

  •  Funny, Scalia didn't have the same respect or (11+ / 0-)

    deference for Congress when he struck down the Voting Rights Act.  Even though that was supported by a much greater majority of Congress and the people.  

  •  Kennedy' ruling relies in part on states rights... (1+ / 0-)
    Recommended by:
    Bob Love particular, that DOMA violated equal protection by creating invidious discriminatory treatment of a couple whom New York state law regarded as legally married.  Kennedy's reasoning discusses at length the constitutional problem with federal law discriminating against a class of persons that STATE law recognized as legally married, and spends much less time exploring the equal protection issue itself, though it does acknowledge the foundational status of Lawrence v Texas (state sodomy laws unconstitutional; Texas had applied them to prosecute gay sex).

    So, Kennedy clearly attempted to steer clear of extending today's decision in a way that inevitably requires overturning restrictions against gay marriage in states in which they exist.  In fact, Kennedy's approach to reaching the equal protection issue is through the effect DOMA had on discriminating against couples whose marriages were recognized under STATE law (New York).  Kennedy's opinion directly states that the decision does not involve section 2 of DOMA, which allows states refusing to recognize same-sex marriage to refuse to recognize such marriages formed in states allowing such.

    However, by also explicitly basing today's decision on a violation of equal protection, it's difficult to see how the court can avoid eventually upholding a challenge to section 2 of DOMA as unconstitutional.  IMHO where a bare majority of the court is eventually heading is a status where individual states retain the right to refuse to authorize formation of same-sex marriages within their borders, but cannot discriminate against such marriages which are legally formed in states recognizing such marriages, including issues involving the substantial range of benefits that collaterally accompany marital status.  Effectively, state prohibitions against same-sex marriage will be little more than a vastly shrunken remnant, easily overcome by those with means to travel to a "legal" state, but still inconveniencing some who do not.

    •  I would argue that distinction will not hold (2+ / 0-)
      Recommended by:
      lostboyjim, bythesea

      and all one has to do is look at how the Court decided that particular issue in Loving v Virginia in 1967.

      Soon enough you will have states with a majority of the population that supports marriage equality

      soon enough you will have federal officials - be they civilian or military - who are legally married who are denied marriage rights in some states - not just to taxes, but property, hospital visitation, medical decisions, children's custody issues, etc - which will force those states to recognize

      and given both the track record of the Court on discrimination and the issue of marriage as a fundamental right (which is what court said unanimously in Loving) requiring states to allow same sex marriage is probably within the next 5-10 years.

      "We didn't set out to save the world; we set out to wonder how other people are doing and to reflect on how our actions affect other people's hearts." - Pema Chodron

      by teacherken on Wed Jun 26, 2013 at 09:52:24 AM PDT

      [ Parent ]

      •  It will likely be a military case (3+ / 0-)
        Recommended by:
        cmoreNC, trumpeter, lostboyjim

        I can easily see a legally married, living off base, same sex couple suing to be permitted to file joint STATE taxes.

        I don't think it will take long for the military to allow legally married same sex couples full dependent benefits - that will be the first advantage of this ruling.

        And once that happens, you know it won't take long for a legally married same sex military couple to get stationed in some state that won't recognize their marriage, won't let them file joint taxes, won't let them be married.

        That's what will drive the full faith and credit argument. Because in that case, they didn't WILLINGLY move there. They were REQUIRED, by the govt itself, to move there.

        •  Agreed: equal protection will stress fault lines.. (2+ / 0-)
          Recommended by:
          lostboyjim, bythesea

          ...that Kennedy attempted to steer carefully around in today's ruling.  The equal protection basis of today's decision is incompatible with Kennedy's attempt to ground today's decision on the invidiously discriminatory effect under equal protection of federal law refusing to recognize a marriage legally formed under state law.  If equal protection applies as the reason federal law was improperly discriminatory, it's hard to see how state-law restrictions are sustainable.

          •  I agree. I don't see how states barring same-sex (0+ / 0-)

            marriage and its recognition will be allowed to continue this practice if a proper challenge is mounted based on the historic application of the 5th Amendment's equal protection clause to states, as deemed to exist in the 14th Amendment.

            Dear Fundamentalist Christians, "The Flintstones" was not a reality show. Sincerely, The Rational World.

            by BlueMindState on Wed Jun 26, 2013 at 12:47:12 PM PDT

            [ Parent ]

      •  A well-planned punt (0+ / 0-)

        The court will strike down Section 2, and make a Loving-style decision.  But as Ginsburg indicated, they want a few more years for the population to get used to the idea.  As long as the court holds stable, the next case (probably from Texas (where you have two different courts ruling differently on whether Texas courts can give divorces to SS Couples married in other states), probably in 3 years) will probably overturn Section 2, and all laws forbidding marriage in that state.

        Minority rights should never be subject to majority vote.

        by lostboyjim on Wed Jun 26, 2013 at 10:22:51 AM PDT

        [ Parent ]

  •  Question (4+ / 0-)

    And it's not about Scalia's hold on sanity. Although that is open to question.  

    We might have let the People decide.
    Through their representatives, didn't the people decide,  the Voting Rights Act?  

    Or is it the truth, Scalia thought the people decided wrong and he was sent to the Supreme Court to right that wrong?  

    We owed both of them better.
    We all deserve better than the 4 Political-Hack-ateers on the Supreme Court.  
  •  I really don't understand how Scalia (8+ / 0-)

    is looked upon as an "intellectual" on the court since almost all the snippets of opinions that I read from him indicate otherwise.

    By his logic, those who supported slavery didn't necessarily have any hate or malice in their hearts towards slaves.  Slavery was a long established tradition that they grew up with.   They loved their slaves - they had no malice or hate of them.   How dare you call those who supported slavery haters!

    What an idiot.

    •  Paula Deen would agree with that! (3+ / 0-)

      Don't bet your future on 97% of climate scientists being wrong. Take action on climate now!

      by Mimikatz on Wed Jun 26, 2013 at 09:46:00 AM PDT

      [ Parent ]

    •  He's the intellectual (5+ / 0-)

      When he stands next to Clarence Thomas.

    •  Among right-wingers (1+ / 0-)
      Recommended by:

      'Intellectual" is the same as "pontificating blowhard", and has been since the days of Bill Buckley.

      I am not religious, and did NOT say I enjoyed sects.

      by trumpeter on Wed Jun 26, 2013 at 10:12:33 AM PDT

      [ Parent ]

    •  The differences is that slavery was deemed (0+ / 0-)

      Unconstitutional because at east 3/4 of states, through their democratically elected representatives in state legislatures, determined that slavery was wrong, by their adoption of the 13th Amendment.

      In DOMA, he might argue, a democratically elected legislative body, the US Congress, deemed such a legal definition of marriage was necessary and proper, thus a legitimate use of Congressional power, and should be given deference and upheld.

      Of course, I'm still trying to square his vote on the VRA and his arguments against overruling Sec 3 of DOMA. That's why I call him Jekyll and Hyde, and the least intellectually honest member of the Court in at least half a century.

      Dear Fundamentalist Christians, "The Flintstones" was not a reality show. Sincerely, The Rational World.

      by BlueMindState on Wed Jun 26, 2013 at 01:09:30 PM PDT

      [ Parent ]

    •  Worse than that, slavery was justified as (0+ / 0-)

      good for the slaves by introducing them to civilization. And it isn't only Blacks.

      Captain, Road Prison 36: You gonna get used to wearin' them chains afer a while, Luke. Don't you never stop listenin' to them clinking. 'Cause they gonna remind you of what I been saying. For your own good.

      Luke: Wish you'd stop bein' so good to me, cap'n.

      Cool Hand Luke (Paul Newman) on a Florida chain gang

      Ceterem censeo, gerrymandra delenda est

      by Mokurai on Wed Jun 26, 2013 at 01:34:43 PM PDT

      [ Parent ]

  •  Scalia has the emotional maturity... (3+ / 0-)
    Recommended by:
    Bob Love, Aunt Pat, trumpeter

    ...of an 8 year old. His "dissent" is so immature.

  •  I think Kennedy nails the most important point (1+ / 0-)
    Recommended by:

    up front:

    We should always be suspicious of a law that is plainly treats "them" differently from "us", whoever them and us may be.  When "them" and "us" is defined by innate characteristics that we have little power to change, heightened scrutiny must surely be appropriate.

    That's what this is.

    I can invite a gay friend to dinner.
    I can have coffee with him or her.
    I can commiserate.
    I can chat.
    I can watch the dogs.
    I can watch the house.
    I can do a lot of things, but I can't be gay because that's not the way I'm wired.

    If I (as emperor of the world) were to issue a law that required gay people to do/not do anything, I would be issuing a law that could never affect me directly.

    That should always raise a flag.

    LG: You know what? You got spunk. MR: Well, Yes... LG: I hate spunk!

    by dinotrac on Wed Jun 26, 2013 at 09:36:12 AM PDT

  •  I just can't get over the Voting Rights Act (5+ / 0-)

    decision.  That one still burns.  I'm very happy about this win though. My state of California is dragging the entire country into the 21st century.  It's time for Scalia and his buddy Thomas to quit the court.  I know they'll never do it voluntarily, but there has never been a stronger case for judicial term limits than the examples of those 2 clowns, especially Scalia.  He wouldn't even pass a law school exam at this point in his career.

    Alternative rock with something to say. Check out Global Shakedown's latest album, "A Time to Recognize": Available on iTunes/Amazon, or stream it at

    by khyber900 on Wed Jun 26, 2013 at 09:36:51 AM PDT

    •  Thomas is the worst (1+ / 0-)
      Recommended by:

      and Scalia is bad but not as bad as Alito in my opinion.

    •  White Gay community owes it to minorities to fight (1+ / 0-)
      Recommended by:

      Tooth and nail to beat back and invalidate efforts to restrict voting.  Obama gave gay rights a big boost.  And it seems like Roberts and the others, knowing they were losing on gay marriage, went and kicked minorities especially hard to feel better.

      Minorities, whether racial, ethnic  or sexual orientation or whatever else need to stand together to beat the reactionary forces back.  We need that 2008 coalition to hold together for 2014 and 2016 if we are all to have a future, and restricting the franchise is their best hope for beating us back.

      Don't bet your future on 97% of climate scientists being wrong. Take action on climate now!

      by Mimikatz on Wed Jun 26, 2013 at 10:21:58 AM PDT

      [ Parent ]

  •  J. Scalia: "the court's going out the door"? (0+ / 0-)

    What, there are other decisions to announce this morning? You wanted this one held over for, what, re-arguing the issues you specified?

    Actually, I really like your statement of high principle, that "I will not swell the U. S. Reports with restatements of that point." It has such promise. Tell us, what will you swell reports of the court's decisions with? Oops - "with what will you swell ..."

    2014 IS COMING. Build up the Senate. Win back the House : 17 seats. Plus!

    by TRPChicago on Wed Jun 26, 2013 at 09:36:53 AM PDT

  •  Missing the future (2+ / 0-)
    Recommended by:
    chrississippi, CoyoteMarti

    I only wish I could live another 100 years to see how Scalia's reputation in legal history becomes so odious.  

  •  wow (0+ / 0-)

    there is no way the red states are going to abide by this.

    ever. it even looks like they are going to take one step further and arrest people for homosexual activity.

    I don't care what they say about me as long as it isn't true -katharine hepburn

    by Krush on Wed Jun 26, 2013 at 09:37:49 AM PDT

  •  Scalia didn't end a sentence with a preposition. (9+ / 0-)

    In "get away with," the last word isn't a preposition. It's a post-verbal particle.

    Some of you might have other things to worry about, but I don't.

  •  should same sex couples go to states that recogniz (0+ / 0-)

    Should same sex couples who live in states that DO NOT  recognize same sex marriage go to a nearby state that DOES recognize same sex marriage to marry?

    Seems to me that that would at least protect their rights under federal law - filing joint income taxes, social security survivor benefits, reversal of current taxation as regular income of medical benefits extended to a domestic partner, etc.

    It would not for now protect their rights under their resident state law - for example, under PA's inheritance tax (transfers after death to heterosexual spouse not taxable at all, but transfers to a same sex partner taxed at 15%).

    For example, a same sex couple who lives in PA or NJ (two states that do not recognize same sex marriage) could travel to nearby Delaware, Maryland or New York and get married under the laws of one of those states.  

    That would seem to be a prudent interim step to protect the couple's legal rights under federal law.

    Delaware's law takes effect on July 1 - 5 days from now.

    •  If the state where you live doesn't (1+ / 0-)
      Recommended by:

      recognize your marriage will the federal government?

      What about a bi-coastal married couple where one spouse is living in a state that supports marriage equality and the other is living in a state that doesn't?

      •  The question is not where you live, but under what (0+ / 0-)

        state's laws you were married. My straight California marriage is recognized here in Indiana without question, which would not be true for any of my LG friends from California if they moved here. But even in Indiana, they would continue to have all applicable Federal benefits.

        States have no power to constrain the relationship between another state and the Feds.

        Ceterem censeo, gerrymandra delenda est

        by Mokurai on Wed Jun 26, 2013 at 01:44:44 PM PDT

        [ Parent ]

    •  That's the next case. (0+ / 0-)

      I can wait to see that argued ... until after we replace one of the 4 scumbags in black.

      I am not religious, and did NOT say I enjoyed sects.

      by trumpeter on Wed Jun 26, 2013 at 10:18:42 AM PDT

      [ Parent ]

    •  Feds will recognize a validly performed marriage (1+ / 0-)
      Recommended by:

      So if it was valid where it was performed it should be valid for federal purposes even if you move.  But your new state will not recognize it for the moment.

      Don't bet your future on 97% of climate scientists being wrong. Take action on climate now!

      by Mimikatz on Wed Jun 26, 2013 at 10:24:59 AM PDT

      [ Parent ]

  •  I woke up feeling depressed this morning (0+ / 0-)

    Now I am feeling much better. Although typing while juggling both a cat and a rat is difficult. I just had to express my happiness at this ruling.

    That passed by; this can, too. - Deor

    by stevie avebury on Wed Jun 26, 2013 at 09:42:59 AM PDT

  •  "disappearing trail of its legalistic argle-bargle (5+ / 0-)

    What a colossal asshole Scalia is.

  •  RE: Scalia: Elections have consequences (2+ / 0-)
    Recommended by:
    foresterbob, TampaCPA

    but 30-40+ years after they happened? We shouldn't have to wait for someone to drop dead to bring the SCOTUS in line with what the current electorate wants. Lifetime terms for SCOTUS justices are outmoded. Back in the good ole days, the average life expectancy was probably 50 if you were lucky, maybe a little better for a Supreme court justice, who tend to be long lived. Now being on the bench for 40+ years is not unthinkable.They should be staggered, non-renewable 18 year terms, or something like that.

    •  Actually, the average age at death for justices (3+ / 0-)
      Recommended by:
      Adam B, bythesea, jncca

      appointed to the Court before 1900 is about 72, with a median of 73.

      The average age at death for justices appointed after 1900 is about 78, with a median of 80.

      I think some of the 18-year proposals out there have merit, but the "nobody could have predicted they'd live that long" isn't a particularly strong argument for them.

    •  This is the Constitution working as designed (1+ / 0-)
      Recommended by:
      Villanova Rhodes

      The Supreme Court's lifetime tenure and the six-year staggered terms in the Senate, and giving states with tiny populations two Senators each, were all meant to slow down radical social changes. You had to hold on to your issue long enough to prove that you really meant it, and that it wasn't just ginned up by special-interest money or temporary fear or insensate greed or something. Unless the money, or the fear, or the greed can sustain themselves that long, as in the Republican Southern Strategy, which appears to be finally coming to a well-deserved end, aka demographic apocalypse.

      Similarly for having Senators appointed by states, rather than elected by voters. We decided that that was too much and got rid of it. We can discuss changes to some other provisions.

      We could also discuss whether Scalia and some others have violated the Good Behavior standard in the Constitution, but few want to open that can of worms. Can you imagine Darrel Issa holding hearings on the scandal, Scandal I tell you! of the Liberal justices being on the Court at all?

      Ceterem censeo, gerrymandra delenda est

      by Mokurai on Wed Jun 26, 2013 at 01:57:39 PM PDT

      [ Parent ]

  •  So Scalia is saying (4+ / 0-)
    Recommended by:
    chrississippi, blueoregon, trumpeter, elmo

    that since the Congress and the President agreed on DOMA, it should count.  But when the Congress and the President agree on extending the Voting Rights Act, that shouldn't count.

    I'm not a lawyer, but the legal term for Scalia should be "douche!"

    In an insane society, the sane man would appear insane

    by TampaCPA on Wed Jun 26, 2013 at 09:56:39 AM PDT

    •  Douche is kinda Latin. (2+ / 0-)
      Recommended by:
      TampaCPA, chrississippi

      Douchius baggius.

      No snowflake in an avalanche ever feels responsible.

      by Magster on Wed Jun 26, 2013 at 09:58:47 AM PDT

      [ Parent ]

      •  Douche is French. Latin would be Ducius Baggus (3+ / 0-)
        Recommended by:
        Magster, trumpeter, jncca

        "Nothing in all the world is more dangerous than sincere ignorance and conscientious stupidity." --M. L. King "You can't fix stupid" --Ron White -6.00, -5.18

        by zenbassoon on Wed Jun 26, 2013 at 10:05:21 AM PDT

        [ Parent ]

      •  He's Italian (0+ / 0-)

        The Latin, following Life of Brian, should be the Imperial

        Biggus Douchus
        or even
        Douchus Maximus
        which would evolve into
        Il Douce Maggiore
        And yes, I do mean to imply just what you think I meant to imply. As bad as Berlusconi, though in a very different way. As bad as Mussolini. As bad as the Roman Inquisition, which was in many ways worse than the Spanish Inquisition in its flagrant ignoring of any rules of evidence or precedent.

        (If there are any Italian Grammar Fascisti about, it's a JOKE!! it isn't supposed to be correct.)

        Ceterem censeo, gerrymandra delenda est

        by Mokurai on Wed Jun 26, 2013 at 02:10:29 PM PDT

        [ Parent ]

  •  Will the Republican Party repay the $$ spent (1+ / 0-)
    Recommended by:

    defending DOMA after the Justice Department stopped doing so? I seem to recall Boner promising to do so, but I won't wait up for the check to arrive.

    Liberalism is trust of the people tempered by prudence. Conservatism is distrust of the people tempered by fear. ~William E. Gladstone, 1866

    by absdoggy on Wed Jun 26, 2013 at 10:03:43 AM PDT

  •  Couple of things: (1+ / 0-)
    Recommended by:

    1)  Did Edie Windsor get interest on the tax refund she had been denied?  If not, why not?  When we miss tax payments, we have to pay interest and fines.

    2)  Have you noticed how cowardly the court's decisions have been?  On this one, they failed to rule on Section 2.  On Prop 8, they just waited.... and then declined to act.  On the VRA, they did an end-run that crippled the act without having the balls to stand up for their own decisions.  And all of this blatant cowardice has been on the side of the far right.  Will no one call them on this?

    I am not religious, and did NOT say I enjoyed sects.

    by trumpeter on Wed Jun 26, 2013 at 10:04:42 AM PDT

    •  DOMA sec. 2 not at issue in the Windsor case. (1+ / 0-)
      Recommended by:
      Adam B

      It wasn't mentioned in the cert petitions, and it was not an issue on which the Supreme Court granted cert.

      OTOH, the same arguments Kennedy used against sec. 3 could, I think, also be used against sec. 2, so I doubt if sec. 2 would survive a challenge, when one does occur.

      The influence of the [executive] has increased, is increasing, and ought to be diminished.

      by lysias on Wed Jun 26, 2013 at 10:38:26 AM PDT

      [ Parent ]

  •  I saw a friend's comment that said (0+ / 0-)

    The state bans are gone because SCOTUS imposed a strict standard.  And Prop 8 means they're unlikely to survive appeal.  And that it's all over except for the lawyering.

    How correct is that?

    "Nothing in all the world is more dangerous than sincere ignorance and conscientious stupidity." --M. L. King "You can't fix stupid" --Ron White -6.00, -5.18

    by zenbassoon on Wed Jun 26, 2013 at 10:07:02 AM PDT

  •  Sexual minority good, racial minority bad! (0+ / 0-)

    Yep, that sounds like My America c.2013!

    You know, I sometimes think if I could see, I'd be kicking a lot of ass. -Stevie Wonder at the Glastonbury Festival, 2010

    by Rich in PA on Wed Jun 26, 2013 at 10:10:01 AM PDT

  •  Scalia's dissent reads like a hastily (0+ / 0-)

    written, emotionally-charged plot post.  

  •  One side sees a dike crumbling..... (1+ / 0-)
    Recommended by:

    .....the other a prison wall. Wonder what the former will do when it finally falls and there's no killing flood, only a lot of happy faces?

    "They smash your face in, and say you were always ugly." (Solzhenitsyn)

    by sagesource on Wed Jun 26, 2013 at 10:21:38 AM PDT

  •  Can DOMA sec. 2 survive? (0+ / 0-)

    Can't the very same arguments Kennedy used against DOMA sec. 3 also be used against DOMA sec. 2?

    The influence of the [executive] has increased, is increasing, and ought to be diminished.

    by lysias on Wed Jun 26, 2013 at 11:28:33 AM PDT

  •  Not understanding the impact for mobile marrieds (0+ / 0-)

    Court emphasized that New York both authorized equal marriage and recognized such marriages performed in other states.  So, setting aside "marriage tourism," what happens when you get married in NY, file joint taxes, etc., for some period of years, then move to South Carolina?  Now you have to file singly?  What if your NY spouse dies and your kids together get SS benefits in NY for a while, then you move to SC, are the kids' SS benefits cut off?  Can you not retire to FL without losing same-sex spouse SS benefits?  

    If your federal status is dependent on the state in which you live recognizing equal marriage, then can you lose your federal benefits when you move?

    Thought is only a flash in the middle of a long night, but the flash that means everything - Henri Poincaré

    by milton333 on Wed Jun 26, 2013 at 04:51:27 PM PDT

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