SCOTUS Ponders Same-Sex Marriage, Administration in Full Pander Mode


 The Supreme Court has now put same-sex marriage on the agenda for its November 20 conference. The cases potentially up for review include eight petitions dealing with the Defense of Marriage Act, one dealing with California’s “Proposition 8,″ which defines marriage in the traditional way, and one dealing with an Arizona law similar to DOMA that restricts marital benefits for state workers to married heterosexual couples only.

The Court has not said which case, if any, it will review. But the Obama Administration is actively encouraging the Court to pick the case that is most favorable to the anti-DOMA forces. As ScotusBlog reports: “Solicitor General Donald B. Verrilli, Jr., in a new brief, said the Second Circuit Court case of Windsor v. United States is “the most appropriate vehicle” for review of DOMA’s ban on federal benefits for legally married same-sex couples.” Windsor just happens to be the Circuit Court decision that has applied the toughest scrutiny to DOMA and, unlike a competing First Circuit case, Elena Kagan need not recuse herself from this one.

It’s slightly odd for a president, who is charged to “take care that the laws be faithfully executed,” to devote so much of the Solicitor General’s energy to striking down a federal law; particularly since it is a law that embodies the very definition of marriage that Barack Obama espoused on the campaign trail in 2008. Are we to believe that the president’s “evolving” understanding of marriage has now rendered DOMA unconstitutional? So obviously unconstitutional that it trumps the president’s duty to faithfully execute the law?

I’ve posted earlier about Windsor. I have some concerns about DOMA from a federalism point of view, but Windsor is not a Tenth Amendment decision. If it were, the administration wouldn’t touch it. Rather, Windsor creates a rule of heightened scrutiny for any legislation that might affect gays, since they are a “politically powerless” class; a dubious proposition if ever there was one.

There are 7 comments.

  1. Member
    mask: Gay marriage – like any issue that progressives champion – is ultimately and primarily a vehicle to expand federal power and lock in client groups. 

    Amen. The two biggest obstacles to the leftist agenda (as Marx well knew)? The Church and the family, both of which tend to form the kind of persons who are free, self-standing, and not amenable to exploitation by the state.

    • #1
    • October 30, 2012 at 1:29 am
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  2. Inactive

    Unfortunately, I’d bet that Obama’s going to win this issue before SCOTUS, because the four liberals are a lock, and I just don’t see Roberts and Kennedy resisting them. I see Kennedy enthusiastically jumping on their train.

    • #2
    • October 30, 2012 at 1:36 am
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  3. Inactive

    Roberts will declare DOMA a tax and uphold it.

    • #3
    • October 30, 2012 at 2:03 am
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  4. Member

    As I understand the position DOMA could be repealed with the involvement of the Legislative branch, thereby conferring democratic legitimacy that a joint effort between the Executive and Judicial branches never could.I presume the fear is that the “homophobic” electorate and their representatives would stand in the way of “progress”. 

    In Ireland we have a Constitutional protection and definition of marriage which is broadly, but not always, recognised as requiring a referendum to allow for same-sex marriage. and while opinion polls seem to show strong support for change there is no great push for a vote, although the (very effective) campaigners for SSM have significant support in Government, including a declaration by the Deputy Leader of the Government that ” gay marriage is the civil rights issue of this generation”.

    Different systems, similar politics, I think.

    • #4
    • October 30, 2012 at 2:59 am
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  5. Member

    The existence of a box does not preclude the existence of other boxes

    • #5
    • October 30, 2012 at 4:51 am
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  6. Inactive

    Is the phrase “politically powerless class” a term of art that has a particular legal definition? It only seems reasonable to call homosexuals a “politically powerless class” if the term is just another way of saying “minority”. No minority can ever win anything in the political arena, unless they have help from others. But if they have that help, then why not simply define the class more broadly, in which case the wider class is clearly not politically powerless? In this case, “same sex marriage” isn’t something homosexuals want, it’s something that liberals want. And liberals are certainly not a “politically powerless class”.

    • #6
    • October 30, 2012 at 7:03 am
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  7. Inactive

    Gay marriage – like any issue that progressives champion – is ultimately and primarily a vehicle to expand federal power and lock in client groups.

    • #7
    • October 30, 2012 at 12:59 pm
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