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A New Hope

What an interesting day.

It started, in the wee hours of the night, with an amazing scene in the Texas legislature over a bill that would have closed almost all the abortion clinics in Texas. A thirteen hour filibuster by State Senator Wendy Davis (where she not allowed to eat or even go to the bathroom) is halted with minutes to go. The Republicans force a vote, but in the ensuing chaos can’t get it done until after the deadline (with reports that they tried to change the date to make it legal).

Next, the Supreme Court in a 5-4 vote, declares the main part of the Defense of Marriage Act (DOMA) unconstitutional. This one seemed like a no-brainer to me. The constitution does not give the federal government any right to regulate marriage, and yet DOMA required that the feds ignore marriages between same sex couples, even if they were performed in a state where they are legal (same sex marriage is legal in twelve states plus DC). The court ruled that this violated the right to equal protection under the law. I’m really curious how four conservative justices, who claim to be strict constructionists, justified voting against this obvious conclusion.

And finally, the Supreme Court struck down an appeal in support of California’s Prop 8, which means that gay marriage will again be legal there. This one was done on a technicality, with the Supreme Court ruling that the private sponsors of the appeal did not have legal standing. Interestingly, even though this was another 5-4 decision, it was not along the usual lines, with conservatives Roberts and Scalia voting with the majority, while Kennedy (who wrote the majority opinion that overturned DOMA) and liberal Sotomayor dissenting.



  1. Michael wrote:

    “I’m really curious how four conservative justices, who claim to be strict constructionists, justified voting against this obvious conclusion.”

    First, there are issues of standing. Scalia and Thomas: “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.” The lower courts had all ruled in Windsor’s favor, so the case should never have been brought before SCOTUS. (Interestingly, this was the opinion of the majority in Hollingsworth v. Perry, which let the appeals decision overturning Prop. 8 stand.) Basically, Scalia and Thomas are all about judicial restraint and deference to Congress when they know they won’t like the outcome.

    Second, they perceive no malice in the passage of DOMA, as its definition of marriage was consistent with societal norms at the time. Furthermore, despite whether or not the effects of DOMA do harm, it served a legitimate purpose by providing uniformity across the federal government. Roberts: “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.” Scalia and Thomas: “DOMA avoids difficult choice-of-law issues that will now arise absent a uniform definition of marriage… Imagine a pair of women who marry in Albany and then move to Alabama, which does not ‘recognize as valid any marriage of parties of the same sex.’ When the couple files their next federal tax return, may it be a joint one? Which State’s law controls, for federal-law purposes: their State of celebration (which recognizes the marriage) or their State of domicile (which does not)?”

    In short, the dissenters are arguing that poor choices in writing legislation does not automatically make a statute unconstitutional. By defining marriage in a uniform manner, DOMA create a single standard to apply, and they’re right. They are basically saying that changing the definition should have been Congress’s responsibility.

    While I disagree with their conclusions, Roberts, Scalia, and Thomas make cogent arguments, and I find the choice-of-law issues mentioned to be problematic. Basically, I think Kennedy and the others tried to play it safe and avoid a sweeping Loving v. Virginia type of decision (I don’t think Kennedy would have signed on to such a decision). But in doing so, they’ve created an unworkable mess.

    I can’t say the same about Alito’s dissent. He just blathers and pontificates about competing visions of marriage without substantially addressing the issue.

    Wednesday, June 26, 2013 at 2:22 pm | Permalink
  2. PatriotSGT wrote:

    I like the Irony or hypocrisy of the President who signed DOMA into law, now celebrating that its been overturned.

    Wednesday, June 26, 2013 at 2:36 pm | Permalink
  3. Michael wrote:

    I was always under the impression that Clinton only signed DOMA as a political maneuver. As I recall, the right pushed for DOMA at the time to corner him by forcing him to veto it. They were trying for a culture war piece of red meat for the election (this was September of 1996).

    Wednesday, June 26, 2013 at 2:59 pm | Permalink
  4. Iron Knee wrote:

    Not only that, but he stated many times after he left office his support for same-sex marriage. It is definitely annoying that he signed DOMA, but I understand the reasons. And, no state allowed gay marriage, so it didn’t matter (at the time).

    Wednesday, June 26, 2013 at 4:02 pm | Permalink
  5. Duckman wrote:

    Everyone bashes republicans for using bullshit tactics during the vote, democrat does it and they are hero? I dont think so, throw her out of office

    Wednesday, June 26, 2013 at 4:53 pm | Permalink
  6. Iron Knee wrote:

    Bullshit tactics? Did you even read the rules for a filibuster in the Texas Senate? I wish the US Senate had rules that were half as onerous!

    Cannot leave to go to the bathroom. Cannot eat. Has to stay precisely on the topic of the bill in question. Cannot even lean on the podium, or anything else.

    Wednesday, June 26, 2013 at 5:56 pm | Permalink
  7. Peter wrote:

    Everyone bashes republicans for using bullshit tactics during the vote, democrat does it and they are hero?

    I’ll admit that part of the reason she is a heroine is the cause for which she is aiding. But I’ll throw out a few differences.

    First is the actual effort. Unlike Republicans in the Senate, who can basically block a bill and go on their merry way, this actually required a certain amount of intestinal fortitude. You try speaking on topic for 13 hours straight. That shows dedication to a cause–yes, one I happen to agree with. But even if I didn’t, I’d have to respect the dedication of someone who would put themselves through that.

    Second, this was done once concerning a particular bill. Senate Republicans have filibustered over 360 times since 2008. And, again, it’s not necessarily about a particular issue–it’s more political (we can’t let the Democrats have a victory).

    Wednesday, June 26, 2013 at 7:20 pm | Permalink
  8. Iron Knee wrote:

    Michael says: “In short, the dissenters are arguing that poor choices in writing legislation does not automatically make a statute unconstitutional.”

    And yet, just yesterday those same dissenting justices overturned key parts of the voting rights act — a 50-year-old act that was reauthorized less than a decade ago with almost unanimous support — because of similar poor choices. See

    Not to mention the Citizen’s United decision, which overturned a 63-year-old ban on corporate political spending based on an argument that was not even raised by the litigants. See

    Wednesday, June 26, 2013 at 7:27 pm | Permalink
  9. Michael wrote:

    Of course they overturned that one. They are only strong proponents of judicial restraint when it serves their purpose.

    Wednesday, June 26, 2013 at 9:56 pm | Permalink
  10. Don in Huaco wrote:

    Its been a really really long time since I’ve actually been proud of a Texas politician who’s done something worthy of national attention. The filibuster was only available as a blocking tool due to the poor clock management of Dewhurst and the R’s. Yes, this is the same Dewhurst who lost a huge lead to eventually lose to Cruz. That election, ironically, was delayed due to the Texas Lege unconstitutional new voting districts (well, formerly unconstitutional after this week’s Supreme’s action). One of the unconstitutional redistricting victims would have been….Wendy Davis. We’re having so much fun, at least for a little while.

    Saturday, June 29, 2013 at 4:09 pm | Permalink