Tuesday, March 26, 2013

Last Call

Tom Goldstein at SCOTUSBlog covers today's Supreme Court oral arguments on Prop 8, and where things go from here.

The Justices seem divided on the constitutionality of Proposition 8 on ideological lines, four to four – i.e., all the members other than Justice Kennedy.  For the more liberal members of the Court, there was no clarity on how broadly they would rule.

But Justice Kennedy seemed very unlikely to provide either side with the fifth vote needed to prevail.  He was deeply concerned with the wisdom of acting now when in his view the social science of the effects of same-sex marriage is uncertain because it is so new.  He also noted the doubts about the petitioners’ standing.  So his suggestion was that the case should be dismissed.

If those features of the oral argument hold up – and I think they will – then the Court’s ruling will take one of two forms.  First, a majority (the Chief Justice plus the liberal members of the Court) could decide that the petitioners lack standing.  That would vacate the Ninth Circuit’s decision but leave in place the district court decision invalidating Proposition 8.  Another case with different petitioners (perhaps a government official who did not want to administer a same-sex marriage) could come to the Supreme Court within two to three years, if the Justices were willing to hear it.

Second, the Court may dismiss the case because of an inability to reach a majority.   Justice Kennedy takes that view, and Justice Sotomayor indicated that she might join him.  Others on the left may agree.  That ruling would leave in place the Ninth Circuit’s decision.

(The puzzle will be what judgment the Court will enter if there are, for example, three votes to dismiss as improvidently granted, two to find no standing, three to reverse, and one to affirm.)

The upshot of either scenario is a modest step forward for gay rights advocates, but not a dramatic one.  The Court would stay its hand for some time for society to develop its views further.  But combined with a potentially significant ruling in the DOMA case being argued tomorrow, the Term will likely nonetheless end up as very significant to gay rights.

In other words, the court really seems to want to punt.  Both liberal and conservative justices appear to be saying that a narrow ruling that would only affect California is not in the cards, so a tie or a punt would effectively be SCOTUS getting a ruling that would only affect California without having to actually make it.

But the ruling on DOMA won't be as easy to duck, it being a federal law and all.  Still, SCOTUS could conceivably punt there too and say that a call this big has to be made by the people through the legislative and executive branches.

My gut feeling says they're ducking Prop 8 because the big money decision is on DOMA.  We'll see what the Justices have to say tomorrow.

Shot In The Back

Once again, the GOP (and my senator in particular) believe they know better then the overwhelming will of the 91% of Americans who support reasonable background check legislation.  They instead serve a tiny percentage of the the leadership of the NRA, itself less than 2% of the population in total.  Senators Rand Paul, Ted Cruz, and Mike Lee don't care:  they will block all firearms regulations regardless because FREEDOM.

Sens. Rand Paul, Ted Cruz and Mike Lee are threatening to filibuster gun-control legislation, according to a letter they plan to hand-deliver to Senate Majority Leader Harry Reid’s office on Tuesday.

We will oppose the motion to proceed to any legislation that will serve as a vehicle for any additional gun restrictions,” the three conservatives wrote in a copy of the signed letter obtained by POLITICO.

In other words, they are confident they can block the measure, period.  They are confident you will let them, and that you will throw up your hands and say "It's Congress, what can you do?"

You can do a lot.

Sen. Ted Cruz's office is (202) 224-5922.
Sen. Rand Paul's office is (202) 224-4343.
Sen. Mike Lee's office is (202) 224-5444.

Especially if you live in Texas, Utah, or Kentucky (like myself) let them know just how many people support universal background checks for all gun sales.

Let then know.

Coming (Out) To America

Will Portman, son of Ohio GOP Sen. Rob Portman, explains his side of the story about coming out as gay through his father's change of heart on same-sex marriage.  Sure, it's political as hell and Democratic senators have politically convenient changes of heart too and appear to be coming out of the woodwork in Portman's wake, but the younger Portman lays out a good case.

I worried about how my friends back home would react when I told them I was gay. Would they stop hanging out with me? Would they tell me they were supportive, but then slowly distance themselves? And what about my friends at Yale, the “Gay Ivy”? Would they criticize me for not having come out earlier? Would they be able to understand my anxiety about all of this? I felt like I didn’t quite fit in with Yale or Cincinnati, or with gay or straight culture.

In February of freshman year, I decided to write a letter to my parents. I’d tried to come out to them in person over winter break but hadn’t been able to. So I found a cubicle in Bass Library one day and went to work. Once I had something I was satisfied with, I overnighted it to my parents and awaited a response.

They called as soon as they got the letter. They were surprised to learn I was gay, and full of questions, but absolutely rock-solid supportive. That was the beginning of the end of feeling ashamed about who I was.

I can't fault the guy.  It still take courage to come out, and the fact that Rob Portman, while a senator with many positions I vehemently disagree with, was and remains a supportive father for his gay son Will.  That's a point in his favor.

As Bon said last night, the pendulum is indeed swinging.  The question of same-sex marriage goes before the Supreme Court this week, with a ruling expected in both the California Prop 8 and federal DOMA cases in late June.

We'll see how fast and how far that arcing swing is in a matter on months.  More on the SCOTUS arguments later on tonight in Last Call.


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