>>Years ago when the Supreme COurt decided to strike down the sodomy laws, SCALIA went on a rant much like he did today.
>>Much of what he feared would happen did happen.
>>And Gerstein explores his decision in light of Scalia's powers of prediction.
>>
The DOMA decision ripple effect
http://www.politico.com/story/2013/06/d ... ml?hp=t1_3
By JOSH GERSTEIN | 6/26/13 8:49 PM EDT
Read more:
http://www.politico.com/story/2013/06/d ... z2XNmnDu48
The Supreme Courts same-sex marriage decisions managed to do the impossible: get gay rights advocates and conservative Justice Antonin Scalia to agree.
Writing for the majority striking down the Defense of Marriage Act, Justice Anthony Kennedy was unsparing, declaring that the laws purpose and effect [is] to disparage and to injure those in same-sex marriages, subjecting them to a stigma that humiliates tens of thousands of children now being raised by same-sex couples.
Kennedy insisted this kind of language wasnt meant to support marriage equality litigation in future state-by-state fights, but the justice often seen as the intellectual leader of the courts conservative wing wasnt convinced.
By formally declaring anyone opposed to same-sex marriage an enemy of human decency, the majority arms well every challenger to a state law restricting marriage to its traditional definition, Scalia warned.
Precisely, say the prospective challengers.
Scalias dissent is absolutely on the money, American Civil Liberties Union executive director Anthony Romero told POLITICO. Its going to open the floodgates for litigation applying equal protection standards to laws discriminating against LGBT people.
It gives me great joy to find agreement with Scalia, gay rights activist and Clinton White House adviser Richard Socarides said. He said Kennedys withering condemnation of the motivations of same-sex marriage opponents and his lamentations about the impact of discrimination on the children of same-sex couples will be a major boon for the gay rights cause.
I think the language is going to be extremely useful because its very powerful and it makes clear the court takes a very dim view of laws targeting gay people, Socarides said.
Several gay rights advocates noted that a decade ago Scalia predicted in his dissent in Lawrence v. Texas that the courts ruling overturning anti-sodomy laws would lead inexorably to the legalization of same-sex marriage.
Lets hope hes right about this, too, Socarides quipped.
Its always a sobering proposition to think that Im in agreement with Justice Scalia, said Susan Sommer of Lambda Legal. I certainly think its true when the Supreme Court pronounces on equality and liberty of gay and lesbian Americans, of course its a building block for equality nationwide
We look to our precedents and the deeper principles they enunciate and this opinion will give ammunition for the future.
Of course, the two sides are in agreement only up to a point: the cascade of pro-same-sex-marriage court rulings gay rights activists view fondly hope for seems to represent one of Scalias greatest fears.
The celebration Wednesday among gay rights advocates can certainly be justified solely on what was accomplished in the DOMA case: obliterating the federal governments bans on tax, health, immigration and other marriage-related benefits for same-sex couples.
However, Kennedys majority opinion in the DOMA case falls short of something both gay groups and the Obama Administration asked the court to do: explicitly declare that government classifications based on sexual orientation are subject to heightened scrutiny by the court.
Kennedys majority opinion mentions that standard in passing, noting that President Barack Obama and a federal appeals court had concluded that heightened scrutiny applied to DOMAs discrimination against same-sex couples. However, while such levels of scrutiny are a central aspect of Supreme Court equal protection rulings on race or gender, Kennedy never returns to that point.
Instead, the majority borrows a more amorphous careful consideration standard from the courts 1996 ruling against a Colorado ballot measure that banned anti-discrimination protections for gays and lesbians.
Anthony Kennedy suggested that the language in the decision wasn't meant for future litigation.
Its not the race standard, not the gender standard, not strict scrutiny or even heightened scrutiny, Socarides said. I think Kennedy is carving out a new test for sexual orientation that blends his equal protection and due process approach.
Its a strange bird, said former Scalia clerk Kevin Walsh, now a professor at the University of Richmond. The doctrinal lens is a new amalgamation of federalism principles and some type of heightened scrutiny it seems like but it doesnt quite fit any preexisting category.
Kennedys vague standard about when laws based on sexual orientation would and would not be valid quickly drew the ire of same-sex marriage opponents.
He doesnt do any constitutional analysis or equal protection analysis, complained Mat Staver, chief of Liberty Counsel and dean of the Liberty University Law School. Theres no parameters, no objective analysis, no guidance as to how to apply this other than if you use enough horrible words about people who dont agree with same-sex marriage, you win
.He resorts to, essentially, name calling.
While those on all sides of the marriage debate seem certain that there will be a concerted effort to drag Kennedys opinion into future gay rights litigation, some experts said Kennedys opinion does draw lines that plausibly separate it from those fights.
University of Chicago Law Professor Geoffrey Stone said Kennedys opinion reinforces in significant rhetorical ways the drive to legalize same sex marriage. However, the professor said, the decision doesnt definitively resolve many of the key arguments opponents of same-sex marriage put forward. Instead, the frequent swing justice casts those arguments as inapplicable when asserted by the federal government.
Its not addressing the question of whether there are any interests a state could put forth that would be sufficient to sustain a ban on same-sex marriage, Stone said. It doesnt address claims that marriage has historically been limited to a man and a woman
..It doesnt address the argument that [same-sex] marriages are unstable. It doesnt address the argument that same-sex marriages are bad for children
.He goes out of his way not to address them.
Stone, who said he doesnt personally find those arguments persuasive, also noted that Kennedys opinion appeared to be confined to the issue of marriage and doesnt directly address other types of legislation that could hurt gays and lesbians.
Romero called the ruling huge and a tipping point, but said the ACLU will be hedging its bets on the legal impact of the decision. The civil liberties groups is pressing on with litigation in some states but also mounting a significant legislative effort to legalize gay marriage in many of the 37 states where it is not legal, and in many cases, banned.
The ACLU has hired Republican strategist Steve Schmidt, a top adviser to Sen. John McCains 2008 campaign, to build GOP support in the states for legislation to make gay marriage legal. Theres support for marriage equality among Republicans ranging from moderates to the Tea Party, Romero said, offering a pitch that casts the issue as one of limited government.
Romero noted that the DOMA case the court decided Wednesday left intact a portion of the 1996 law that says states cant be forced to recognize same-sex marriages performed in other states. He said that means marriage rights in every state remain critical even if same-sex couples have more and more places they can tie the knot.
After todays decisions were going to have marriage equality for 94 million Americans, almost one third of the American population, but two third still do not have the right to marry in their respective states, Romero said. You can go get married someplace else, but that doesnt mean you have those rights when you go home.
now that we are 6 days beyond the Solstice