Wednesday, June 26, 2013

DOMA Open Thread

I didn't do this yesterday for VRA, but I did it for the ACA case, so why not: here's an open thread for discussing the Supreme Court's marriage decisions. If you want to also talk about the Texas abortion law filibuster, be my guest! I know I'll be writing about filibusters, and I'll probably write about the SCOTUS stuff too, but for now, I'll just leave this one.


  1. Reading some opinion from around the blogosphere it sounds like liberal criticism of the VRA decision and Scalia's problems with the DOMA decision are similar: the majority hasn't made clear what part of the constitution is violated. I'm not a lawyer and I haven't actually read any of the opinions. Thoughts?

  2. One of the better critiques I've read is from Paul Campos at Salon who saw the VRA decision as being irrational AND "a travesty as a matter of basic legal reasoning." or " Sure enough, four of the Roberts Five cast dissenting votes in the DOMA case that are completely impossible to reconcile with the legal principles they asserted in Shelby County."

    Personally I also think we should stop calling Kennedy a "Swing Vote" on the Court. I think he's more properly though of as a conservative vote with some fluky tendencies around a few issues like gay rights and prison reform.

  3. @ Nathan, the majority in Windsor make it very clear what part of the Constitution DOMA violates - 5th amendment and to some extent the 10th Amendment.

    There's less clarity in the majority's opinion in the VRA case. See the Scott Lemieux piece Jonathan suggested earlier today -

  4. The combination of views was sometimes unpersuasive. For example: Breyer, Ginsburg, Kagan and Thomas each signed on to one opinion for standing, and one opinion against standing, without bothering to explain the difference. Given the similarities in the standing issues, this suggests other factors at play.

  5. I do NOT have animus towards homosexuals!!, Scalia angrily wrote, in the process breaking off the tip of his pencil.


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