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First Circuit strikes down DOMA as unconstitutional

DOMA trials Gill/Massachusetts

By Scottie Thomaston

Updates to follow at bottom, scroll down…

Gill v. OPM was recently heard at the First Circuit Court of Appeals, and today the decision came down that the three-judge panel has struck down the law as unconstitutional.

The unanimous decision striking down DOMA in Gill v. OPM is here. It is the first time DOMA was considered unconstitutional by a circuit court.

The Huffington Post has more:

The law was passed in 1996 at a time when it appeared Hawaii would legalize gay marriage. Since then, many states have instituted their own bans on gay marriage, while eight states have approved it, led by Massachusetts in 2004.

The appeals court agreed with a lower court judge who ruled in 2010 that the law is unconstitutional because it interferes with the right of a state to define marriage and denies married gay couples federal benefits given to heterosexual married couples, including the ability to file joint tax returns.

The decision will be stayed given the probability that the losing party will ask for a grant of certiorari at the Supreme Court.

From the decision:

Although our decision discusses equal protection and federalism concerns separately, it concludes that governing precedents under both heads combine–not to create some new category of “heightened scrutiny” for DOMA under a prescribed algorithm, but rather to require a closer than usual review based in part on discrepant impact among married couples and in part on the importance of state interests in regulating marriage. Our decision then tests the rationales offered for DOMA, taking account of Supreme Court precedent limiting which rationales can be counted and of the force of certain rationales.

It appears that they found they couldn’t apply heightened scrutiny to gays and lesbians, ruling that it wasn’t open to them (Cook v. Gates is binding precedent), and the Supreme Court “conspicuously failed to [apply heightened scrutiny] in Romer–a case that could readily have been disposed by such a demarche.”

Cook v. Gates is a binding First Circuit decision that ultimately decided not to rule that gays and lesbians are a “suspect classification” instead leaving it up to the Supreme Court to decide. The judges said that Cook ties their hands in deciding the issue of heightened scrutiny and whether gays and lesbians are a suspect classification.

The court also held that another case, Baker v. Nelson which summarily dismissed an equal protection claim that gay people have the right to marry under the Constitution applies in this case, but only to the extent that it limits the arguments to ones that don’t “presume a constitutional right to same-sex marriage.”

The court said that the line of cases from Moreno to Romer (holding that animus is not a rational basis for a law) applies to this case:

All three of the cited cases–Moreno, City of Cleburne and Romer–stressed the historic patterns of disadvantage suffered by the group adversely affected by the statute. As with the women, the poor and the mentally impaired, gays and lesbians have long been the subject of discrimination. Lawrence, 539 U.S. at 571.

Those cases used a stronger form of rational basis to strike down those laws. Lawrence did as well, and it’s cited in the opinion.

And Chris Geidner notes that:

In these cases, the appeal of which were heard together on April 4, the lawyer for Gay & Lesbian Advocates & Defenders, Mary Bonauto, was joined in opposing the law by two government lawyers: Massachusetts Attorney General’s Office Civil Rights section chief Maura Healey and Department of Justice Civil Division Chief Stuart Delery.

Delery is gay and argued successfully against the odious Defense of Marriage Act.

Attorney Adam Bonin, writing at Daily Kos, notes that the judges say that DOMA does have a rational basis, but that under the Romer/Moreno stronger rational basis review, it is unconstitutional.

UPDATE: The panel was comprised of two Republican-appointed judges and one Democrat-appointed judge, and was unanimous, so two more Republican-appointed judges have now joined in opposition to DOMA. The opinion was written by Judge Michael Boudin, a judge appointed by President George H.W. Bush.

UPDATE 2: It’s important to note that ultimately it was the Federal Government’s position that prevailed: the court rejected Massachusetts’ Tenth Amendment claims but still invalidated DOMA.

UPDATE 3: On a press call with GLAD and the Gill plaintiffs, and they note that the First Circuit is a six-member court, and three of the judges just ruled unanimously to overturn DOMA. This would suggest that en banc review is unlikely.

UPDATE 4: GLAD suggests the Supreme Court would likely grant certiorari. Chris Geidner asks them to explain why the Supreme Court should hear the case. Bounato says “same-sex couples are singled out for sweeping disrespect by the federal government.” “We think this is a good case for Supreme Court review… it’s like Romer (v. Evans.)” She says “this law is a real outlier.”

UPDATE 5: Asked about the time frame for possible Supreme Court review, she says, “They have 90 days to file cert petition.” August cert filing, October conference would be likely.

UPDATE 6: The GLAD conference call is over, and they’ve issued a press release:

Today, the U.S. Court of Appeals for the First Circuit ruled unanimously that Section 3 of the Defense of Marriage Act (DOMA) is unconstitutional with respect to claims brought by seven married same-sex couples and three widowers from Massachusetts. The ruling has been stayed pending a likely appeal to the U.S. Supreme Court.

“If we are right in thinking that disparate impact on minority interests and federalism concerns both require somewhat more in this case than almost automatic deference to Congress’ will, this statute fails that test,” the court stated in its opinion.

“This is a strong opinion that affirms that DOMA is an outlier for two reasons. First, because it targets a historically disadvantaged and unpopular group. Second, DOMA intrudes broadly into domestic relations, an area of traditional state regulation,” said Mary Bonauto, GLAD’s Civil Rights Project Director, who argued the case. “Congress does not get to put its ‘thumb on the scales,’ as the court put it, simply because it does not agree with Massachusetts’ decision to allow loving and committed same-sex couples to marry.”

Represented by Gay & Lesbian Advocates & Defenders (GLAD), the plaintiffs in Gill et al. v. Office of Personnel Management have each been harmed because the federal government, under DOMA, has refused to recognize their marriages for all purposes, including Social Security protections, access to family health insurance policies, and joint income tax filings. On July 8, 2010, U.S. District Court Judge Joseph L. Tauro ruled that Section 3 of the Defense of Marriage Act (DOMA) is unconstitutional. The U.S. Department of Justice appealed the ruling, which resulted in today’s decision.

The next step most likely in the case is for the federal defendants and BLAG to decide whether they will seek review in the Supreme Court. That request should come within the next 90 days.

UPDATE 7: Lambda Legal is up with comments on the decision:

We are thrilled that another court—this time, the Court of Appeals for the First Circuit—has ruled that it is unconstitutional to deny respect to the marriages of lesbian and gay couples.

The so-called Defense of Marriage Act is being challenged in multiple cases, and it won’t be long before that bad law is gone for good.

We congratulate our colleagues at Gay and Lesbian Advocates and Defenders (GLAD) and the State of Massachusetts for achieving this wonderful victory.

UPDATE 8: The Wall Street Journal‘s Law Blog has several excerpts from the opinion, emphasizing the judges’ decision to invalidate DOMA based on precedent related to a stronger rational basis review, instead of the Tenth Amendment federalism claims raised by Massachusetts:

In our view, neither the Tenth Amendment nor the Spending Clause invalidates DOMA; but Supreme Court precedent relating to federalism-based challenges to federal laws reinforce the need for closer than usual scrutiny of DOMA’s justifications and diminish somewhat the deference ordinarily accorded.

It is true that DOMA intrudes extensively into a realm that has from the start of the nation been primarily confided to state regulation–domestic relations and the definition and incidents of lawful marriage–which is a leading instance of the states’ exercise of their broad police-power authority over morality and culture.

UPDATE 9: Washington Blade‘s Chris Johnson says House Speaker John Boehner (tasked with defending DOMA) will have a statement soon on the next steps BLAG will take:

UPDATE 10: Geidner at Metro Weekly notes (in a post linked above) that the White House is weighing in on the decision:

White House press secretary Jay Carney said today of the decision, “There’s no question that this is in concert with the president’s views.” He went on to note that the Department of Justice participated in the oral arguments defending its view that Section 3 is unconstitutional.

UPDATE 11: Pam Spaulding has a post featuring a lot of reactions from Congresspeople, and from LGBT organizations.

UPDATE 12: Alliance Defense Fund, the group who is defending Proposition 8 in court, has issued a statement on the Gill DOMA ruling, comparing same-sex marriage to polygamy.

114 Comments Leave a Comment

  • 1. Gabriel  |  May 31, 2012 at 7:53 am

    I can't wait to hear the ridiculous statements from NOM. It is so funny to hear their framing of hate losing as "heros are falling." Funny… and pathetic.

  • 2. Roque  |  May 31, 2012 at 7:54 am

    The best way to start this day. Celebrate!!!

  • 3. Menergy  |  May 31, 2012 at 7:59 am

    and it wasn't even the "radical, activist judges legislating from the bench of the 9th Circuit Court!" this time.

  • 4. bJason  |  May 31, 2012 at 8:01 am

    http://www.scribd.com/doc/95433699

  • 5. Gabriel  |  May 31, 2012 at 8:02 am

    They will always be "radical, activist judges legislating from the bench" to the NOMbies, Donahue brand morons and Perkins disciples. Them acknowledging that we are right is all it takes for those people to throw that label at them.

  • 6. MFargo  |  May 31, 2012 at 8:03 am

    Unanimous!

  • 7. Todd  |  May 31, 2012 at 8:05 am

    does unanimous mean en banc appeal unlikely, and thus a direct appeal to SCOTUS?

  • 8. Scottie Thomaston  |  May 31, 2012 at 8:09 am

    Two are GOP-appointed!

  • 9. Sagesse  |  May 31, 2012 at 8:09 am

    @

  • 10. Scottie Thomaston  |  May 31, 2012 at 8:17 am

    Not at all. En banc review could still be sought.

    And this is a big case anyway, so it's even more likely they'd go that route.

  • 11. Larry  |  May 31, 2012 at 8:20 am

    En banc would give the full 1st circuit a chance to revisit Cook v Gates, the case that says rational basis applies. For what it's worth, 3 judges voted to hear an initial en banc hearing (but they needed 4 which is why it went to a normal panel first). I don't know what, if any, bearing that has on a new en banc request.

  • 12. Steve  |  May 31, 2012 at 8:22 am

    I find it pretty silly that they still feel bound by Baker. Baker was rejected for lack of a federal question. 1972 that was true, but the very existence of DOMA means this is no longer the case

  • 13. Gregory in SLC  |  May 31, 2012 at 8:28 am

    Excellent! Further evidence this is a CIVIL RIGHTS issue. Majority voting against minority repeatedly defeat us, yet in court we win, even with conservative judges.

  • 14. Tyler  |  May 31, 2012 at 8:29 am

    En banc would be futile because there are only five full members of the court, three of which signed this opinion. So a majority of the full court already agrees with this decision. Given what they wrote, I find it highly unlikely they'd want to overrule Cook, which brings me to my take on this opinion. As I wrote elsewhere,

    While this is an awesome result, and we should all be very excited, this ruling is not stirring. If you read it, the first word that comes to mind is reluctant. It praises people who voted for DOMA because of tradition, it says that Baker v. Nelson–a 40 year old summary order from the Supreme Court–dooms marriage litigation like the Prop 8 one, it says that DOMA passes rational basis scrutiny (though it applies a slightly different level), it endorses states banning gay marriage, and it says it won't even consider whether gays are a suspect class deserving equal protection because that would result in us getting marriage rights in other states (it says this even though it doesn't have to reach the issue because of Cook).

    Don't get me wrong, there are good lines in the decision, and we should be ecstatic at the bottom line, which is DOMA is unconstitutional. This guarantees that the Supreme Court will decide the question (which would not be certain if it had upheld DOMA). However, this precedent is bad for other gay rights cases. If SCOTUS were to write this same decision, we would never have nationwide marriage equality and it would doom the Prop 8 case.

    So while we celebrate today, we should hope and pray that the Supreme Court strikes DOMA down in a "better" way, if you will.

  • 15. Lymis  |  May 31, 2012 at 8:31 am

    Glad they found in favor, but that has to be one of the lamest and most wishy-washy rulings I've seen. It read like "Well, I guess we have to rule this way, sorry to inconvenience anyone, but we want you to know we really won't be upset if we get overruled."

    Anyone know if this is how their rulings usually read?

  • 16. Steve  |  May 31, 2012 at 8:34 am

    I find it crazy that they still feel bound by Baker. Baker was dismissed for lack of a federal question. That was true in 1972, but the very existence of DOMA shows that this no longer applies.

    I agree with you. The ruling is good, but very cautious. However, I disagree about Prop 8. The reasoning in Prop 8 has changed completely. It's no longer about a fundamental right to marry, but about the ability to take away existing rights – and is very strongly based on Romer

  • 17. DonG90806  |  May 31, 2012 at 8:36 am

    It's even more amazing than you realize. At the trial court level, Judge Tauro declared DOMA unconstitutional in both cases. Judge Tauro was appointed by Pres. Nixon (yes,he's that old and that conservative) i 1972.

    At the appellate level, Judge Juan Torruella was appointed by Reagan in 1984. He is a devout Roman Catholic; a Hispanic from Puerto Rico, and quite old.

    So, all the old stereotypes are rapidly falling.

    If these conservative judges have all held DOMA unconstitutional, what can Scalia, Alito, Thomas and Roberts do?

  • 18. DonG90806  |  May 31, 2012 at 8:40 am

    I just noticed that the opinion was written by Judge Boudin, a GWH Bush appointee. But even more interesting, to me at least, is that Judge Boudin is the brother of one of the leaders of the Weather Underground and the Days of Rage in Chicago in 1968. She wanted to overthrow the government because of our involvement in the Viet Nam war.

    His sister wanted to overthrow the government in the 60s and 70s, and he writes the opinion declaring DOMA unconstitutional.

  • 19. MightyAcorn  |  May 31, 2012 at 8:43 am

    I'm with you, Tyler. This decision is hardly a resounding rebuke of DOMA, and still doesn't address the Full Faith and Credit Clause issue (not the direct cause of action here, but still.) Looks like the Fed courts are willing to grant *some* marriage equality to *some* people, as long as they live in a liberal state. *sigh*

  • 20. DonG90806  |  May 31, 2012 at 8:43 am

    I'm not sure I agree with you Scottie. The rules for getting an en banc hearing are really quite strict. I do agree with you that this is THE big case, so it's more likely that they would APPLY for an en banc hearing, but I'm not sure it would be granted.

    In addition, Chief Justice Lynch, who signed on to this opinion, would be on the en banc panel, so I'm not sure what difference it would make.

    To me, BLAG would apply for an en banc hearing simply to delay the whole process since the 1st Circuit stayed their opinion.

  • 21. Richard Lyon  |  May 31, 2012 at 8:47 am

    A very well written analysis.

  • 22. phoenix  |  May 31, 2012 at 8:48 am

    Could the losing side still request en banc review just as a delaying tactic?

  • 23. Tyler  |  May 31, 2012 at 8:53 am

    Boudin does stuff like this all the time. If you read it from a legal point of view, he's basically created his own form of scrutiny. Most of the opinion reads as almost a kind of rumination.

    He and Lynch are both very conservative. Torruella's pretty liberal. This is probably the most liberal thing that he or Lynch have done in a while, which is undoubtedly why it has so much hedging and reluctance. I have no doubt that Torruella would have gone along with a much better opinion, but he was stuck with this panel and there's not much point to issue a concurrence given the certainty of Supreme Court review (unconstitutional federal law = Supreme Court review).

  • 24. Steve  |  May 31, 2012 at 8:54 am

    So far no case has actually challenged Section 2. All of them have been about Section 3

  • 25. Steve  |  May 31, 2012 at 8:56 am

    They also given an inordinate amount of deference and credit to Congress. To say that they were motivated by anything other than hatred and fear is complete nonsense. For some it may have just been fear, but there still wasn't anything reasonable to it.

  • 26. fromdamoon  |  May 31, 2012 at 8:56 am

    I know the decision didn't read as a glowing endorsement for same-sex marriage as we would like to see. However, I think it's good that the decision reads as more legally conservative. No one who knows anything about the law can label these as "activist judges legislating from the bench"; they simply applied the law and came up with the only logical result. I also disagree that they "praised" people who voted for DOMA because of tradition. They only recognized that many people voted for DOMA out of tradition and familarity for heterosexual marriage rather than outright bigotry. This is similar to what Justice Kennedy said in Romer v. Evans: that prejudice is often not the result of animosity, but of an instinctive fear of something different than ourselves.

  • 27. Tyler  |  May 31, 2012 at 8:58 am

    Yes, but there's not much reason to do so, and it doesn't matter if they do. Given the fact that the Supreme Court is going on its summer recess, the earliest they could even accept a petition for certiorari is the last week of September. They have two weeks to ask for en banc, and I imagine the court would reject the motion relatively quickly. No matter what happens, the Supreme Court opinion in this case will almost certainly come in the last week of June 2013 (the most important cases always come down at the last week of the term).

  • 28. Str8Grandmother  |  May 31, 2012 at 9:00 am

    My take away is that they applied "Strict" Rational Basis Review :)
    And it failed.

    I particularly didn't like the discussion about heightened Scrutiny and I must go back and re-read for better comprehension.

    I liked this part –

    Although the House Report is filled with encomia to heterosexual marriage, DOMA does not increase benefits to opposite-sex couples–whose marriages may in any event be childless, unstable or both–or explain how denying benefits to same-sex couples will reinforce heterosexual marriage

    Certainly, the denial will not affect the gender choices of those seeking marriage. This is not merely a matter of poor fit of remedy to perceived problem, Lee Optical, 348 U.S. at
    487-88;City of Cleburne, 473 U.S. at 446-50, but a lack of any demonstrated connection between DOMA's treatment of same-sex couples and its asserted goal of strengthening the bonds and benefits to society of heterosexual marriage.

    Which every Judge has same the same exact thing. Denying Same Gender Civil Marriage does not HURT opposite gender marriages.

  • 29. Steve  |  May 31, 2012 at 9:11 am

    Some call it "rational basis plus"

  • 30. Str8Grandmother  |  May 31, 2012 at 9:11 am

    And I LOVE this part

    The opponents of section 3 point to selected comments from a few individual legislators; but the motives of a small group cannot taint a statute supported by large majorities in both Houses and signed by President Clinton. Traditions are the glue that holds society together, and many of our own traditions rest largely on belief and familiarity–not on benefits firmly provable in court. The desire to retain them is strong and can be honestly held. For 150 years, this desire to maintain tradition would alone have been justification enough for almost any statute. This judicial deference has a distinguished lineage, including such figures as Justice Holmes, the second Justice Harlan, and Judges Learned Hand and Henry Friendly. But Supreme Court decisions in the last fifty years call for closer scrutiny of government action touching upon minority group interests and of federal action in areas of traditional state concern

    That is RIGHT because as a country we Discriminated against disfavored minorities simply well, "Well that is our tradition" Especially important are the words I bolded "not on benefits firmly provable in court" This is exactly what Boies and Olson have been saying, you NEED to have EVIDENCE, and that is what the 1st Circuit is saying also. And we all know as per Charles Cooper "We don't need any evidence" doesn't cut it which is the exact words that Ted Olson used in Oral Arguments in the Appeals Hearing on Prop 8.

    Our opponents have been told numerous times by numerous judges that they really DO NEED evidence that "Oh this is the way we have always done it" doesn't cut it in Federal Court especially when you are Discriminating against a disfavored minority group. It doesn't cut it!

  • 31. Mackenzie  |  May 31, 2012 at 9:16 am

    Suck it NOM! Great day for AMERICA!

  • 32. Jamie  |  May 31, 2012 at 9:21 am

    I'm not sure that an en banc review would be a good idea for the losers. The en banc panel would have to declare DOMA unconstitutional on the same grounds as the 3 judge panel, or consider suspect classification of other forms of heightened scrutiny for gays and lesbians. The en banc panel would be able to overule Cook v. Gates and declare gays and lesbians a suspect class, something that is quite likely, and not going to help BLAG if they go to the Supreme Court. Frankly, the Supreme Court is either going to uphold this decision or make the same consideration. I honestly don't see a path to success here for these guys. Either DOMA goes away, or gays and lesbians are declared a suspect class, or both.

  • 33. Jamie  |  May 31, 2012 at 9:25 am

    Even more importantly, banning gay people from marriage doesn't help heterosexual marriage. It's such a simple concept, it's a shame that it has taken so long to take hold.

  • 34. Str8Grandmother  |  May 31, 2012 at 9:26 am

    Suck it NOM is RIGHT!!!
    Couldn't have said it better myself.

  • 35. fromdamoon  |  May 31, 2012 at 9:30 am

    I would say "conservative" rather than "wishy washy". It doesn't make for a fun read. However, it could really appeal to the conservative judges on the US Supreme Court in finding DOMA unconstitutional. The deference to Congress, the use of "rationale basis plus" without using actual heightened scrutiny, and the acknowledgement that DOMA was not passed entirely by bigots (though there certainly were many) will be legally beneficial to same-sex married couples in the long run.

  • 36. Andy  |  May 31, 2012 at 9:43 am

    They are Supremes. Unfortunately, they can do whatever they damn well please. Let's here it for Opus Deii . . .

  • 37. Steve  |  May 31, 2012 at 9:47 am

    Also not the repeated use of "sexual preference". Grrr

  • 38. JeffM  |  May 31, 2012 at 9:49 am

    I had a couple of questions.
    1) Could couples who married in 1 state (say NY) and later moved to a state where their marriage was not recognized still be eligible for benefits? Put another way, would a surviving spouse have to move to a state with marriage equality to obtain social security survivor benefits?

    2) I know that this case only applies to Section 3 of DOMA. Are there any cases in the Courts currently to contest Section 2 (states ignoring full faith and credit)? What type of case would that have to be? Married/live in one state, work in a state that doesn't recognize the relationship (like NY and DE or NJ) or married to a man in one state and a woman in another or ??

    Thanks!

  • 39. _BK_  |  May 31, 2012 at 9:54 am

    Lol. All the unintentional innuendo… It's being "shoved down their throats" and we're telling them to "suck it" haha. Nice.

  • 40. Mtn Bill  |  May 31, 2012 at 10:12 am

    Remember, that other cases are pending with decisions possibly out by the time the Supreme Court starts up in the fall. So there may be other cases that potentially may be on appeal in the fall.

  • 41. Scott Wooledge  |  May 31, 2012 at 10:44 am

    I also remember a significant number of people saying Tauro's ruling wouldn't hold up on appeal. And instead we got a unanimous agreement.

    Of course, Tauro's ruling seemed crazy progressive and forward leaning just two years ago. How far we've come in a short time.

  • 42. Scott Wooledge  |  May 31, 2012 at 10:47 am

    Yeah, given there are only 6 judges on that bench, it now looks unlikely BLAG will get an en banc request granted.

    They'll still probably ask, just to stall the process. But given the 6 panel en banc is at worst, going to return a 3-3 affirmation of the ruling, it seems unlikely the First would vote to waste their own time by granting the en banc request.

    GLAD said the same in the press briefing, which Update 3 acknowledges.

  • 43. Steve  |  May 31, 2012 at 10:48 am

    They disagreed about the Tenth Amendment part though

  • 44. DaveP  |  May 31, 2012 at 10:51 am

    Yeah! You GO Str8Grandmother! Well said!

  • 45. Scott Wooledge  |  May 31, 2012 at 10:53 am

    "this precedent is bad for other gay rights cases"

    INAL, but other opinions I have read suggest it's a milquetoasty opinion BECAUSE it doesn't create precedent. It doesn't award suspect class because it says they can't. It doesn't overturn Cook because it can't.

    It may not be exactly correct to say that an appeal court can never create precedent, and it must always defer that to the SCOTUS. But, it doesn't appear they created much precedent either way, to our advantage or our disadvantage.

    Seems consistent with much of our court rulings where we "win" but sort of run in place on the legal landscape (like Lawrence and Bowers going our way, but declining to name LGBTs as an actual suspect class).

  • 46. Scott Wooledge  |  May 31, 2012 at 10:58 am

    The fealty to Baker is hilariously awful. That an 11-word pronouncement is beyond reproach 40 years later. It's not like courts don't revisit issues as facts change, and so much has.

    How much precedent was tossed aside in Bush v. Gore or Citizen's United?

  • 47. Mighty Oak  |  May 31, 2012 at 10:59 am

    I know, I know, but Section 3 is the part that will make it possible for states to discriminate, so only same-sex couples living in a liberal state can benefit from this ruling. Not marriage equality at all until everyone has equal access to marriage and universal recognition. Still….we'll take it.

  • 48. Scott Wooledge  |  May 31, 2012 at 11:02 am

    This case didn't challenge Section 2 at all. Plaintiffs didn't ask it to.

    It would have undercut the self-determinative right of states (in this case Massachusetts) to define marriage as they see fit without interference from the Federal government.

    Philosophically, the argumentative strategy used to take down Section 3 is at odds with the arguments that would be used to take down Section 2.

    That will have to be another case. I am not aware of anyone filing a case challenging Section 2.

  • 49. Scott Wooledge  |  May 31, 2012 at 11:05 am

    Delay IS THE REASON to ask for en banc. The haters can see the writing on the wall. They know they are losing and can only hope to delay the inevitable.

    When the last baby-boomer dies, and the under 30 crowd (who support LGBT equality at 70%+ rates) take the reigns of this country they'll be unable to stop it.

    Until then, they can only hope to delay and they will.

  • 50. Ann_S  |  May 31, 2012 at 11:12 am

    I hate to say it, but I don't know that Section 2 changes anything. States are already free to disregard marriages from other states that are against the public policy of the first state. When I was a kid (sorry to repeat myself) my parents' marriage was legal in some states we lived in and illegal in others, right up until 1967 and Loving v. Virginia.

  • 51. Bill S.  |  May 31, 2012 at 11:14 am

    1. It probably could go either way, with the decision being made by the President via executive order. None of the current DOMA cases involve same-sex married couples living in states that do not recognize same-sex marriage.

    2. There are no current cases challenging Section 2. The Full Faith and Credit Clause is not as simple as you are making it out to be. Section 2 is actually superfluous. There are different levels of deference states must give to legislative acts rather than judicial acts, the latter requiring much more deference than the former. Franchise Tax Board v. Hyatt.

    As "the full faith and credit clause does not require one state to substitute for its own statute, applicable to persons and events within it, the conflicting statute of another state, even though that statute is of controlling force in the courts of the state of its enactment with respect to the same persons and events," Pacific Employers Insurance v. Industrial Accident, this provision will likely never be challenged separately but will be invalidated once the Supreme Court rules that same-sex couples have a constitutional right to marry.

  • 52. Scott Wooledge  |  May 31, 2012 at 11:17 am

    I'd say even if Section 3 weren't there, the state Attorney General of a red state would declare that same-sex marriages were not valid and refuse to recognize out of state marriages or issues state marriage licenses.

    And our community would STILL be forced to take the state to Federal Court to make them honor the Full Faith and Credit clause of the Constitution with regard to same-sex marriages. They'll argue they don't have to honor first cousin marriages, or the marriage of a minor where age of consent laws differ, and this is the same.

    Section 3 of DOMA is really superfluous.

    I mean, say Section 3 of DOMA did not exist. Can you really imagine notorious homophobe Ken Cuccinelli, Attorney General of Virginia not using his office to fight marriage equality with everything he's got?

    Of course he would. He's the law of the land in Virginia and if he says no gays get married, that's the status quo until the SCOTUS tells him otherwise.

  • 53. JeffM  |  May 31, 2012 at 11:17 am

    Thanks for the clarifications. Much appreciated.

  • 54. Str8Grandmother  |  May 31, 2012 at 11:31 am

    I'll give you a thumbs up on that one MJFargo :)
    ALL smiles today.

  • 55. Scott Wooledge  |  May 31, 2012 at 11:32 am

    Yeah, I just posted a similar thought above. The problem in red states isn't so much DOMA section 2, which is superfluous, it's the status quo. And the people who are empowered to change the status quo, the GOP Governors, Attorney Generals, GOP controlled legislatures won't change the current policy without a epic fight. And they'll gladly take that fight all the way to the Supreme Court.

    That's the next battle.

  • 56. Str8Grandmother  |  May 31, 2012 at 11:33 am

    Great analysis Jamie, thx.

  • 57. Steve  |  May 31, 2012 at 11:33 am

    Presumably, the federal government would have to accept marriages that were contracted outside one's state of residence. It would be the reverse of the current situation: government benefits, but no state benefits.

  • 58. Scottie Thomaston  |  May 31, 2012 at 11:35 am

    Apparently even Jack Balkin said that.

  • 59. Scott Wooledge  |  May 31, 2012 at 11:40 am

    I'd say, to 1, if SCOTUS affirms this any couple with a valid marriage license would have access to full Federal benefits regardless of where in the USA they lived. Under a friendly admin, like this one, you could expect the Executive branch to go easy on dispensing benefits. The Santorum presidency (shudder) would throw up every roadblock they could and make us litigate every benefit, probably.

    I'm not aware of any cases challenging Section 2. They would probably have to litigate the limits of the Full Faith & Credit clause in the same case. Right now, some states don't recognize other states marriages (say a 16 year old wed in the south, married to an adult). So it isn't entirely cut and dry that FF&C affirms our universal right to marriage in 50 states. DOMA Section 2 just declares the exception explicit.

  • 60. Str8Grandmother  |  May 31, 2012 at 11:41 am

    Damn I wish they would hurry up with that decision in the 9th Circuit on en banc review.

  • 61. Str8Grandmother  |  May 31, 2012 at 11:45 am

    To conclude, many Americans believe that marriage is the union of a man and a woman, and most Americans live in states where that is the law today. One virtue of federalism is that it permits this diversity of governance based on local choice, but this applies as well to the states that have chosen to legalize same-sex marriage. Under current Supreme Court authority, Congress' denial of federal benefits to same-sex couples lawfully married in Massachusetts has not been adequately supported by any permissible federal interest.

  • 62. Str8Grandmother  |  May 31, 2012 at 11:49 am

    The word GOD does not appear one single time in the Constitution. I am sick and tired of the religionists forcing their theology into our Civil Laws. This will smack them own one more time. One more time, until every American citizen IS treated EQUALLY under the law. It is a long road to travel, but in the end WE.WILL.WIN!

  • 63. Scott Wooledge  |  May 31, 2012 at 12:03 pm

    Which would grant red state gays Federal benefits but not state, yes, the reverse of the status quo in NH, NY, MA and elsewhere.

    Federal benefits for red state gays will be nice, but many family protections will still be out of reach.

    Let's not lose sight of the fact that many very important benefits are delivered by STATE laws, many of which fall in the family law category: the right to inherit property (or a rental lease), right to a chain of custody with shared children, right to alimony or child support, right to seek divorce in state court, etc, etc. And pocketbook issues like state taxes.

  • 64. Scott Wooledge  |  May 31, 2012 at 12:35 pm

    From Prop 8 to DADT to this, you read a lot in these rulings, "Well, we really don't KNOW that these laws were passed because gays are widely hated and people want to see them to suffer…"

    It's like they don't live in the same world as us.

    I guess coming to grips with the bigotry of the heterosexual (and heterosexist) majority seems to be a real stumbling block for some people.

  • 65. Gregory in SLC  |  May 31, 2012 at 12:38 pm

    I'm tired of the mis-use of the word FAMILY:

    “This Court has followed the same flawed logic as the Margaret Marshall-led Massachusetts Supreme Judicial Court in throwing out the historical definition that marriage is between a man and a woman, the essential institution for the procreation and nurturing of children. The ruling refutes every credible study on the importance of mother-father led families in promoting a healthy society.”

    “This Court has the audacity to hold the federal government hostage and force all Americans to recognize a radical social experiment from Massachusetts. This is a denigration of our federalist system and its time-tested reliability.’’
    — Kris Mineau, president of the Massachusetts Family Institute

  • 66. Kalbo  |  May 31, 2012 at 1:14 pm

    All that notwithstanding, FEDERAL law also has huge impact on things such as immigration. You won't be any worse off in red states (you'd still come out ahead with federal recognition), but finally we'd have full equality in this country*, something we've never had.

    I absolutely agree that all of DOMA should be swept away and Walker's ruling upheld to bring a Loving-style ruling on all the states. It's about time, and public opinion is much farther ahead for us than it was for interracial marriages at the time.

    *Applies only in blue states and DC. Light blues with CUs might get something on the federal level, but might not, and if not, I suspect many will upgrade to the Real Deal.

  • 67. Leo  |  May 31, 2012 at 1:23 pm

    Don't they have 45 days to ask for en banc since the case involves the federal government? FRAP seems to say so.

  • 68. Scottie Thomaston  |  May 31, 2012 at 1:31 pm

    On the media call, GLAD said 90 days.

  • 69. Str8Grandmother  |  May 31, 2012 at 1:35 pm

    FAMILY is a good one Gregory, the way they wave their flag around, up to everybody's noses claiming over and over again that the man woman way is the ONLY, and BEST way. Look at Zac Whals from Iowa, they cannot deny that his two lesbian mothers raised a fine human being.

    How about VALUES, another misappropriation by the Haters, as if gay people don't have good values. Nooooooo only they do. My arse!

  • 70. Leo  |  May 31, 2012 at 1:35 pm

    90 days is the time to file a petition for certiorari with SCOTUS. Are you sure it wasn't that instead? (Did they say both were 90 days?)

  • 71. AnonyGrl  |  May 31, 2012 at 1:42 pm

    Well, THIS baby boomer and many others don't NEED to die for the fight for equality to plow ahead… and I hope to win before we all die.
    :)

  • 72. Gregory in SLC  |  May 31, 2012 at 1:50 pm

    AGREE! @ VALUES …ugh.
    Thank you SG for fighting for your family…and mine ::tears:: (of frustration…and appreciation)

  • 73. Mike  |  May 31, 2012 at 2:13 pm

    "They'll argue they don't have to honor first cousin marriages, or the marriage of a minor where age of consent laws differ. . . ."

    Incorrect.

    In Maryland (and more than 20 other states), first cousins can legally marry. They can't in Pennsylvania. Maryland has many 'wedding chapels' along the MD/PA state line, and many of them have more people from Pennsylvania getting married in them than people from Maryland. Many or most of the Pennsylvania couples then go back to Pennsylvania, and Pennsylvania accepts the marriage as legal, as it was legal where it was performed.

    Same in Louisiana/Mississippi. Age of consent in Louisiana is 18, but it's 21 in Mississippi. A couple can get married in Louisiana at age 18 (legal), then immediately move to Mississippi. Mississippi, even though state law says a person must be 21 to get married without parent or guardian, or judge approval, will recognize that marriage, as it was legal where it occurred.

    The above applies to heterosexual marriages. But if a same sex couple gets legally married in Massachusetts and they move to just about any other Federal jurisdiction, the jurisdiction, under DOMA, can say "We don't recognize your marriage."

    Fair?

    No.

  • 74. Mike  |  May 31, 2012 at 2:20 pm

    You can add THIS baby boomer, and my (half-)sister (born in 1962) to the list. And my sister is straight.

    And add our soon to be 85 year old mother (my step-father died many years ago, or he'd also need to be added).

  • 75. Ann_S  |  May 31, 2012 at 2:25 pm

    Mike, I think even in your examples Mississippi or Pennsylvania could argue that they don't have to recognize the out-of-state marriages if they had a strong public policy against those marriages. This was the case with inter-racial marriages pre-Loving v. Virginia.

  • 76. Scottie Thomaston  |  May 31, 2012 at 2:28 pm

    You're right I think.

  • 77. Mike  |  May 31, 2012 at 2:35 pm

    I have a question (or two) someone may be able to answer:

    Let's say BLAG appeals to SCOTUS, and in October, SCOTUS accepts the appeal and schedules arguments for mid-January or later. Let's say that the Democrats win the majority in the House in November, and the new Speaker is a Democrat (presumably Nancy Pelosi, but a Democrat none the less). (I know, supposition [but clearly possible], but please bear with me)

    Since BLAG is the Speaker, and the majority and minority leaders of the House, I'm sure the 'new' BLAG would tell the attorneys supporting the 'old' BLAG to pack it in, and tell SCOTUS it was dropping the case.

    Is this even legal? How does anyone think SCOTUS would react? (would oral arguments still proceed?) And what would be the legal and practical impacts of BLAG dropping the case?

  • 78. fromdamoon  |  May 31, 2012 at 2:38 pm

    Kris Mineau of MFI obviously did not read the Court's opinion. As Article 2 of DOMA was not disturbed, the decision did not "force all Americans" to recognize anything. The Court also did not address the issue of "mother-father" led families at all!

    I also find it ironic that the name "Kris" is a unisex name :)

  • 79. devon  |  May 31, 2012 at 2:52 pm

    My concern is that Romney wins the election and issues an executive order for DOJ to begin to defend DOMA again. Could that happen? Romney vows to defend DOMA as president.

  • 80. Scott Wooledge  |  May 31, 2012 at 2:55 pm

    It's a good question. I'm not sure if anyone really knows what the answer is definitively. This is a pretty unique moment in US history.

    The broader question being, "If Democrats retake the House, can the newly Democratic controlled BLAG vote to drop the DOMA defense?" I am sure the answer is probably yes, as Constitutionally, no Congress is beholden to follow directives of a previous Congress. (Meaning, they can always re-vote and change any previous decision, or law.)

    Will they? Maybe.

    And would we WANT them to?

    Yes, we'd all be happy to see our tax-payer dollars no longer funding the defense of our own discrimination. And yes, it would be a significant setback for Clement and all the anti-equality crowd.

    But, it would likely throw all these cases into a state of chaos. We could look forward to lots of legal wrangling about what would become of the cases. Like with Prop 8, would there then be long drawn out arguments about who, if anyone has standing to defend them? Probably.

    Surely Alliance Defense Fund or some other far right Christian group would want to do it. Maybe they'd just fund Clement's continued work, and little would change.

    But, the answer is not likely to be as simple as, "Well, no one's defending DOMA, so it just goes away. The gays win!"

  • 81. Scott Wooledge  |  May 31, 2012 at 3:03 pm

    I certainly didn't mean to imply all baby boomers were a problem. Just using that generation as a demarcation. Apologies if it was taken that way.

    The Millennials will almost certainly be easier to work with in Congress than the BBs, as a generality, just based on natural selection and odds. And anti-gay bigotry has a shelf-life as a tool to GOTV.

    The 21st century politician won't have much luck using it to move the Millennials when they are the dominate voting block.

  • 82. Str8Grandmother  |  May 31, 2012 at 3:21 pm

    As we celebrate our DOMA win today, let's have some inspiration about the right to Civil Marriage for Sexual Minorities. Boies and Olson have burned this into my head, the Supreme Court has said 14 times that Civil Marriage is a Constitutional right.

    For some inspiration today let's just look at one of those times the Supreme Court said that.-

    Skinner v. Oklahoma, 1942 (US Supreme Court): "Marriage is thus something more than a civil contract subject to regulation by the state; it is a fundamental right of free men. There can be no prohibition of marriage except for an important social objective and by reasonable means. No law within the broad areas of state interest may be unreasonably discriminatory or arbitrary."

  • 83. Str8Grandmother  |  May 31, 2012 at 3:26 pm

    + Say Pelosi gets in power, she drops the appeal to the Supreme Court, she accepts the ruling of the 1st Circuit. That would mean that only those people within the First Circuit would get their marriage recognized by the Government. People in Iowa would have to start their DOMA Court Case. I hope that this cases gets tried in the Supreme Court, let's have a decision.

  • 84. Scott Wooledge  |  May 31, 2012 at 3:30 pm

    You don't need to convince me it's unfair. I agree.

    You need to convince Ken Cuccinelli, Republican Attorney General of Virginia it's unfair and unconstitutional for him to deny same-sex couples recognition of their marriage in the state of Virginia.

    You need to convince AG Ken Cuccinelli it's exactly the same as first cousin marriage or age of consent differences. You need to convince Ken Cuccinelli because he's the last word in Virginia on Virginia law.

    I am only arguing it won't be as easy as reading him the Full Faith and Credit Clause of the Constitution waiting for him see things your way, and order his state to acknowledge same-sex marriage.

    I don't get to decide what constitutes a valid marriage in Virginia, Republican Attorney General Ken Cuccinelli does. If gays don't like his decision (and I'm sure they won't), it's–once again–back to the courts to resolve the dispute.

  • 85. Matt  |  May 31, 2012 at 3:36 pm

    It's good to be 'reluctant', otherwise you give the Supreme Court motivation to disagree with you. It's exactly the same approach taken by Reinhardt (who is very pro-gay) in the Prop8 case. The only goal of this case is to overturn Section 3 of DOMA, and it so far has accomplished that 100%. Boudin wrote his ruling to appeal to Kennedy, who used this 'rational basis plus' for sexual orientation for the first time in Romer and Lawrence.

    Clearly, the Supreme Court isn't going to suddenly declare that sexual orientation deserves heightened scrutiny, or all state marriage bans would be wiped out immediately. They will take a gradual course, and the step of least resistance is to require that federal benefits be given to those who ARE in states that recognized their marriage.

    I think it's very likely that Kennedy will have no qualms with this ruling, and so I think we have a very good chance at the Supreme Court of this decision being affirmed.

  • 86. Ray in Sacramento  |  May 31, 2012 at 3:46 pm

    Romney has also said that if elected, he would seek to have a Constitutional amendment limiting marriage to one man and one woman. Correct me if I'm wrong, but I also remember reading that he would also include domestic partnerships in that amendment. I just hope and pray that Obama gets in again.

  • 87. MightyAcorn  |  May 31, 2012 at 4:26 pm

    But Millennials don't vote. If they did, we wouldn't have Tea Partiers in Congress right now.

    I'll wager a significant majority of those eligible to vote support equal rights for women–say, equal pay for equal work–but we don't have Constitutional protection for girls either (and we only got fair-pay protection, without teeth, with the Lily Ledbetter Act after Obama took office.) This is because more than half of eligible voters don't show up to the polls.

    So don't bank on Millennials making marriage equality happen anytime soon, or assume it's a done deal when they start taking office. It'll be a battle for whatever parity we can get, wherever we can get it, for a long, long time.

  • 88. MightyAcorn  |  May 31, 2012 at 4:38 pm

    I think what it boils down to is not wanting to get anywhere near a big-stinky legal implication that religious "disapproval" of homosexuality = discrimination. They want to stay as far away from that hot potato as possible, thus allowing people who say they condemn marriage equality for religious reasons to continue to do so without pegging them as bigots.

  • 89. Reformed  |  May 31, 2012 at 5:48 pm

    Wow! That is a lot of comments. I think everyone who has read them all should get an honorary law degree ;)

  • 90. Sam  |  May 31, 2012 at 5:50 pm

    Loved seeing this comment at Andrew Sullivan's place too, btw

  • 91. Scott Wooledge  |  May 31, 2012 at 6:31 pm

    Well, Pelosi and BLAG can pull the plug on the financing. I think that's pretty cut and dry.

    It's less clear they can pull the plug on the actual DEFENSE. Clement would probably want to stay on as counsel of defense, and be encouraged to by Boehner, the Christian Taliban to do so.

    It's rather frowned upon for attorneys to drop cases in the middle of an action.

    Would the court allow a defendant intervenor? Would the court allow Minority Leader Boehner to be the defendant of record representing the "government" or Congress? All strange questions, mostly uncharted legal territory.

  • 92. Scott Wooledge  |  May 31, 2012 at 6:52 pm

    Millenials WILL vote. 20-somethings never vote. I've been hearing people lament for 30 years that the 20-somethings don't vote. Like everyone else, they'll vote more as they get older.

    I'm certainly not tying all my hopes to the Millenials, but look up the thread, I just mentioned they are the reason the haters will EVENTUALLY lose. The 20-somethings won't grow to dislike gays the way their parents did.

  • 93. Steve  |  May 31, 2012 at 7:41 pm

    That would probably never happen. It takes 3/4 of the states to ratify such an amendment (ratification itself requires 75% of the votes). Which means that just 12 states have to say no. That's easily doable these days. Even in the Bush years, they never even got the votes in Congress

  • 94. SeattleRobin  |  June 1, 2012 at 2:33 am

    I feel the need to add in my two cents after just now reading the decision. It was really a come down to read it when compared with the other DOMA case decisions we've seen prior to this. It read as very grudging and even almost antagonistic.

    In one respect I guess that's good. It shows that even judges that would have probably liked to overturn the lower court's decision couldn't come up with a legit reason to do so, which adds strength to the argument that DOMA is not constitutional.

    But frankly, I detected unspoken animus in that decision. Heh.

  • 95. Sagesse  |  June 1, 2012 at 4:37 am

    This decision should reanimate the push for the Respect for Marriage Act, which would repeal DOMA. In addition to the court cases, there are the pervasive wrongs that DOMA causes to military families, and in immigration.

  • 96. Gregory in SLC  |  June 1, 2012 at 5:13 am

    I like that idea…I sure hope so. Perhaps President Obama can help rally support for R4MA too!

  • 97. Dr. Brent Zenobia  |  June 1, 2012 at 6:19 am

    Wrong generation. It's the Silent Generation (1925-1945) that still harbors the most opposition to LGBT. They were young adults during the 1950s and 1960s, when homophobic attitudes were at their peak just prior to Stonewall.

  • 98. Dr. Brent Zenobia  |  June 1, 2012 at 6:27 am

    It does seem like the district courts are the ones most likely to adopt our legal reasoning; then at the appelate level the reasoning gets watered down a bit, and we should expect that when the Supreme Court eventually rules in our favor the final opinion will be watered down still further. We will get the minimum we need for the case at hand, and no more. I think it quite unlikely that, for example, the Supreme Court will grant us Heightened Scrutiny if Rational Basis Plus will do.

    The way we will win is by piling up a whole series of cases that, taken together, achieve the results we want. I predict that SSM will become legal throughout the US not by a single SCOTUS ruling, but by a series of rulings each of which extend our rights a little bit further. And I predict that's still a good 10 years away, plus or minus 7 years.

    But, in the end we will win.

  • 99. Steve  |  June 1, 2012 at 6:31 am

    It's not his own form of scrutiny. Rational basis plus is nothing new. It was used in Romer and Lawrence, though the latter case went out of its way to not state what standard it used.

  • 100. Dr. Brent Zenobia  |  June 1, 2012 at 6:34 am

    If SCOTUS affirms this case, I would have to think that one of the next cases to be brought would occur in a state like Oregon that has approved "everything but marriage" CUs or DPs, and that allows same-sex couples to file joint tax returns. If it is truly the public policy of the state that same-sex couples should be given all the rights of marriage save for the name itself, then why shouldn't the federal government follow suit and allow those couples to also file jointly?

  • 101. New  |  June 1, 2012 at 7:31 am

    Me 3. With all the recent shift in public opinion + this decision + Obama support + the messy Republican Party, Now R4MA may have a better chance, I guess.

  • 102. Scott Wooledge  |  June 1, 2012 at 8:44 am

    I agree it will be a series of rulings. Many LGBT folks seem confused–or disappointed–that this ruling didn't affirm a fundamental right to marry in all 50 states.

    But it was never intended to. It was never conceived to achieve that end goal. It was an incremental step. And an excellent one.

    Once the State and Federal government begin offering equitable partner benefits to gays in MA, with no demonstrable harm to anyone, it becomes rather indefensible, from a purely philosophically viewpoint that gays in GA or TX should be compelled live under a different system of government simply by virtue of different result of majority rule, or their choice of geography.

  • 103. Scott Wooledge  |  June 1, 2012 at 8:54 am

    I would think the next step after DOMA is gone it to use the US Constitution to take a swing at one of the state amendments barring same-sex marriage.

    Finding a couple (or 10 or 20) who have been wed in say MA or NY and file a Prop 8 style challenge to force the state to recognize their marriage(s) under Full Faith and Credit. This would eventually force the SCOTUS to consider if same-sex marriage, like interracial marriage, is a fundmental right of all citizens under the US Constitution. (If and when such a case got to the SCOTUS.)

    It's probably good it hasn't been tried yet, it's early. Another handful of states would muddy the argument made at the SCOTUS against marriage equality. And DOMA and Prop 8 eventually being found definitively in our favor would help.

    The right state, in the right circuit would also be key. Finding a circuit that wouldn't dismiss such an action out of hand would be the challenge. But picking a "easy" circuit like the Ninth has PR problems. Better to try it in another circuit not as known for being "liberal." Maybe one that leans libertarian.

  • 104. Scott Wooledge  |  June 1, 2012 at 8:58 am

    A grudging decision may read awful to us, as LGBT activists who want a full endorsement of our equality.

    But to Kennedy, or some other on the fence Justice, it may be more persuasive to hear, "Well… we don't like it, but whaddya gonna do? It's the law…. We gotta treat 'em equally."

  • 105. Scott Wooledge  |  June 1, 2012 at 9:04 am

    R4MA ain't getting off the ground until the Democrats control the House again. Hopefully that will be the case in January. But if GOP holds it, or God forbid, Democrats lose the Senate, I really can't see the bill getting to the floor of either house under GOP leadership.

    Which is by no means to say it's a waste of time to lean on our individual representatives in both houses, and from both parties to endorse and sponsor the bill. That's very good and worthwhile work, and can make it much easier to get the bill through when eventually, Speaker Pelosi and Leader Reid call for the vote.

    I just think Boehner and McConnell are too frightened and to beholden to the Christian Taliban to even let the bill come to the floor. Perkins, Dobson, et al would call for their impeachment and stop the money train.

  • 106. Str8Grandmother  |  June 1, 2012 at 2:37 pm

    Respect for Marriage Act- Take BACK the HOUSE, get rid of the TeaParty, help Obama get reelected.

  • 107. Mike  |  June 1, 2012 at 4:06 pm

    If BLAG is withdrawn (or withdraws), who would have standing? Clement would still be able to be their attorney, but the question is who would pay him as a result of their having standing.

    Remember, they must have a demonstrable DIRECT interest in the issue, and we saw the mess the issue of standing caused in the 9th Circuit in the Prop 8 appeal. My understanding is that SCOTUS is even MORE strict on the issue of standing.

  • 108. Mike  |  June 2, 2012 at 5:03 pm

    Since BLAG is a 'creature' of the House, it could even kill the whole BLAG. Then what would Clement do?

    I KNOW the new House might not tell BLAG to do anything differently, but then again, do you KNOW with absolute certainty that the House will continue BLAG as a standing committee? (The answer is 'probably', but it is not a 100% certainly.)

    So go back to the original questions I asked. If the Democrats win the House and BLAG is continued, and told by Congress to NOT pursue the case, how would SCOTUS react? No need to respond it you don't know (and Scott Wooledge has already admitted he doesn't know).

    Oh, and I didn't ask who would pay Clement, so no need to go into that discussion.

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