Friday, December 7, 2012

Last Call

The US Supreme Court has decided to hear two massive same-sex marriage cases, first, a challenge to Section 3 of the federal Defense of Marriage Act at the national level:

The Court agreed to hear the Windsor v. United States case, which was brought by a lesbian widow. The Second Circuit Court of Appeals invalidated DOMA in a 2-1 decision finding that the federal government did not have a legitimate interest in treating same sex couples differently.

It’s another legacy-defining case for the Roberts Court and extraordinarily tricky one. The rapidly growing public support for same sex marriage in many parts of the country leaves little doubt that it will eventually be legalized in a substantial number of states. For gay marriage supporters, however, DOMA, signed by Bill Clinton, remains a political roadblock at least so long as Republicans control the House of Representatives. That leaves the federal courts as the best avenue for eliminating the law. The question is whether the justices will lead the way or leave the roadblock in place.

“I don’t think justices get in this position very often because everybody knows what the judgement of history is going to be,” Lucas Powe, a Supreme Court historian at the University of Texas-Austin School of Law, told TPM before the court’s announcement. “I don’t think think anybody doubts that gay marriage is coming — it’s only the issue of time. This is one of those times where no matter what you think you know you’re going to be wrong if you oppose it.”

Secondly, they will hear arguments on challenging California's Prop 8 banning same-sex marriage at the state level.

The Supreme Court announced on Friday that it will take up California’s Proposition 8, the 2008 ballot measure that amends the state’s Constitution to ban same sex marriage.

The Court will hear oral arguments in next spring and render a decision by the end of June. At issue is whether the U.S. Constitution prohibits a state from codifying a ban on recognizing same sex marriages.

Windsor is the big one, but the Prop 8 case also means that SCOTUS wants to decide the federal issues and the states' rights issues separately as Adam Serwer explains, and the stakes couldn't be higher.

The DOMA case asks the justices to strike down the federal law that dictates which marriages are valid. Even better for supporters of same-sex marriage: Of the several DOMA cases the court could have taken, it decided on Windsor v. United States, in which plaintiff Edith Windsor was unable to claim an estate-tax deduction after her female partner died. Between striking down part of a heavy-handed federal statute and helping someone get a tax cut, it's the kind of same-sex marriage case even a conservative justice could love. Most importantly, from the point of view of getting the requisite five votes, striking down DOMA would not prevent states from banning same-sex marriage.

The Prop. 8 case argues something much broader, however: It claims there is a fundamental right to same-sex marriage in the Constitution, and that any attempt to ban same-sex marriage violates the 14th Amendment. The Ninth Circuit's ruling was written so narrowly that if the Supreme Court had decided not to take the case, then the Ninth Circuit's decision would have affirmed the rights of same-sex couples in California alone. But if SCOTUS were to affirm the constitutionality of California's ban on same-sex marriage, the ruling could well apply to any such law nationwide.

Not only that, the American Prospect's Gabriel Arana wrote in 2009 that "defeat could legitimize such discrimination against LGBT Americans, making it far more difficult to sue for parental or housing rights." 

So the question is "Can discrimination against LGBT Americans be codified into law and still pass Constitutional muster?"  The courts have let stand such discrimination for ex-convicts for instance at the state level (denial of right to vote, sex offender registration), but not the national one. (Civil Rights Act, Voting Rights Act).

At least, so far.

It's in the hands of SCOTUS now, and this June should be rather exciting.  It's possible same-sex marriage could become a national right.  On the other hand, it could mean the annulment and end of current same-sex marriages across the country for generations.

If you had to ask me to hazard a guess, I'd say DOMA is struck down, but Prop 8 stays, meaning that states will have the right to ban same-sex marriage if they want to, but that the feds must agree to abide by treating those same-sex marriages in states that allow it as full marriage with all federal benefits.

In other words, punt to the states, go play golf.

We'll see.

"What Blue States?" He Said...

If Republicans can't win elections by getting people to vote for Republicans, change the rules so that Democratic votes count less.  MoJo's Nick Baumann:

In September, top Pennsylvania Republicans shocked the nation by proposing a change to the state's election rules that would have rigged the Electoral College in favor of Mitt Romney. Facing a nationwide backlash, the state's GOP backed down—but not before Wisconsin Republicans considered a similar plan. With the old rules still in place, President Barack Obama won a 332-206 electoral college victory over Romney.

But now that Romney has been defeated, prominent GOPers are once again mulling rule changes that could make it harder for Democrats to win the White House—and easier for Republicans to claim Electoral College votes in states where they lose the popular vote.

Remember, the presidential election isn't a nationwide contest, it's a state-by-state fight, with each state worth a certain number of electoral votes (the District of Columbia gets 3, too). There are 538 electoral votes total; if you win 270 or more, you're headed to the White House—even, as George W. Bush can assure you, if you don't win the popular vote. The Constitution allows each state to allocate electoral votes however it wants, but in every state except for Nebraska and Maine, the contest is winner-take-all. If you get the most votes in Pennsylvania, you get all of its electoral votes.

Republicans want to change that. On December 3, Dominic Pileggi, the powerful Republican majority leader of the Pennsylvania state Senate, announced that he plans to introduce legislation that would change how the state allocates its electoral votes. This shouldn't be a surprise: Pileggi was one of the Pennsylvania politicians behind the pre-election plan to change Electoral College rules.

Our old friend Ohio GOP Secretary of State Jon Husted wants in on this plan too, as does Scott Walker in Wisconsin...and notice that no Republicans in deep red states want to do this.  Could you imagine splitting Texas?  Of course not.  it's not about "fairness" it's about stealing 2016.

So of course the GOP wants to change the rules of voting.  Do that and you control the country.

It's the only way they can win now.

Go Filibuster Yourself, Mitch!

And my senator, GOP dipstick Mitch McConnell, only ended up outsmarting himself yesterday as he set out to embarrass Democrats and the President, and nearly ended the fiscal cliff and the debt ceiling drama by bringing both crashing down on his turtle shell.

Senate Minority Leader Mitch McConnell (R-KY) wanted to prove on Thursday that Democrats don’t have the votes to weaken Congress’ authority on the debt limit. Instead they called his bluff, and he ended up filibustering his own bill.

The legislation, modeled on a proposal McConnell offered last year as a “last-choice option” to avert a U.S. debt default, would permit the president to unilaterally lift the debt ceiling unless Congress mustered a two-thirds majority to stop him. President Obama has championed the idea.

McConnell brought up the legislation Thursday morning. Senate Majority Leader Harry Reid (D-NV) initially objected, seemingly proving the Republican leader’s point that it cannot pass the Senate. But then Reid ran it by his members and, in the afternoon, agreed to hold that same vote. This time it was McConnell who objected.

“The Republican leader objects to his own idea,” Reid declared on the floor. “So I guess we have a filibuster of his own bill.”

Yep, you got it.  In his zeal to "prove" that the Democrats would hypocritically shoot down a permanent solution to the debt ceiling crisis by making the default scenario automatic raising of the ceiling dependent on a Presidential veto to stop it, ol' Mitch ended up filibustering himself in order to hypocritically shoot down his own legislation.

If that isn't a microcosm of the repeated fail of the GOP on these debt ceiling maneuvers, I don't know what is.

[UPDATE 1:58 PM]  Kevin Drum asks:

This puzzled me when I first read it, but I didn't bother blogging about it. So now I will. My question is this: why did McConnell think this in the first place? I can't think of any reasons that Dems would have balked at this. They certainly don't want a debt ceiling fight while Obama is president, and they've never used the debt ceiling to hold a Republican president hostage. That's purely a GOP gambit.

Gosh I dunno Kev, maybe he thought enough "liberals" couldn't resist taking cheap shots at the President to make the plan work.  Imagine that.


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