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Supreme timing, part 3: Why it’s better for DOMA to be heard at the Supreme Court before the Prop 8 trial

Community/Meta DOMA trials Prop 8 trial

This post is Part 3 of a five-part series exploring the future of the DOMA and Prop 8 cases at the Supreme Court.  You can read Part 1Part 2Part 4 and Part 5 at Prop8TrialTracker.com.

By Jacob Combs

In yesterday’s post, Part 2 of this series, I made the argument that the conservative majority on the Supreme Court would likely feel more comfortable striking down DOMA for its perversion of hundreds of years of state supremacy in marriage laws than it would striking down Prop 8 because it took rights away from citizens who already enjoyed them.  In today’s post, I’ll extend these differences to look at the distinct constitutional implications of striking down DOMA, a federal statue that was passed by Congress, and Prop 8, a constitutional amendment enacted by a popular vote of the people of California.

DOMA and the upending of the status quo of American marital law

Because DOMA is a federal law, a Supreme Court decision striking it down would not be particularly momentous on a procedural level: it is the Court’s prerogative to have the final say on the constitutionality of federal statutes.  Congress is, of course, a representative body that is supposed to enact the will of the populace, and when Congress goes too far and runs afoul of the U.S. Constitution, it is the responsibility of the Supreme Court to rein in the legislative branch.

As I wrote in yesterday’s post, marital law in the United States has historically been an area of state law and not federal law: DOMA represented the first time that the federal government instated a definition of marriage that superseded state marriage definitions.  In reviewing DOMA, then, the Supreme Court’s conservative justices could very well see themselves as restoring a status quo to a matter which was, essentially, forcibly made a federal issue by Congress.

The status quo argument, in fact, is one which has been brought up at both the district and appellate court levels in the DOMA cases, albeit by the pro-DOMA Bipartisan Legal Advisory Group (BLAG), which is defending the law on behalf of the House of Representatives.  Essentially, BLAG has argued that DOMA (which was passed in a kind of panic by social conservatives after a Hawaii Supreme Court decision that could have paved the way to marriage equality in the state) maintained the ‘status quo’ of heterosexual marriage in the U.S. to allow the states to be ‘laboratories of democracy’ and explore providing marriage rights to gay couples.

Several district courts, as well as the First Circuit Court of Appeals, have rejected this argument when it has been made by BLAG, but the concept of the status quo is still significant for DOMA’s fate at the Supreme Court, albeit as an argument against the law, rather than for it.  DOMA radically changed the status quo for American marital law (at least for gay and lesbian couples), and the Supreme Court may very well look favorably upon restoring the traditional federalism of state marriage rights that existed before DOMA was enacted.

Because of this, a Supreme Court decision striking down DOMA would be, perhaps counter-intuitively, a conservative one, not in the sense that it fits into a conservative political agenda (it doesn’t), but in the sense that it expresses a world-view of maintaining the traditional separation of powers and responsibilities afforded to the states and to the federal government.

Consider a counter-factual.  A Supreme Court decision upholding DOMA (and thereby affirming Congress’s right to intrude federally into the realm of marriage law) would create precedent for a future, pro-equality Congress to enact a law similar to DOMA in its scope but with the opposite effect which would establish marriage equality federally, even in those states in which public opinion (and political demographics) would be opposed to providing such rights to gay couples. It seems hard to imagine the current Supreme Court handing down such a decision, and opening up the door to further federal intervention in the historically state-decided area of marital law.

On the other hand, given their views on states’ rights, the conservatives on the Court (and certainly Justice Kennedy) would be much more likely to look favorably upon the argument that striking down DOMA would truly allow the states to experiment in a way that they cannot fully do while DOMA is the law.  This argument could appeal not only to Justice Kennedy, but perhaps also to Justice Roberts, who has in the past professed a desire to avoid split-court decisions and who is clearly invested in the public’s opinion of the Court.  A 6-3 decision striking DOMA down would affirm that it is the states, and not the federal government, that has the final say on marriage law in the United States, and would return to states the power to provide full equality to couples regardless of their sexual orientation.

Prop 8: why the best course of action for the Supreme Court is declining to review the case

A Supreme Court ruling upholding the Ninth Circuit’s invalidation of Prop 8 would certainly have national implications that would take American marital law away from its current status quo.  As I wrote yesterday in Part 2, the Ninth Circuit declined to make the same broad argument that district court Judge Walker did in his ruling that Prop 8 violated gay and lesbian couples’ fundamental right to marry under the U.S. Constitution.  The Ninth Circuit left that issue untouched, while ruling only that Prop 8 was unconstitutional because a state’s citizens cannot use a popular vote to take away rights that have already been bestowed upon a class of citizens.  In its ruling, the court specifically limited it analysis to California only.

If the Supreme Court were to maintain the Ninth Circuit’s narrow opinion, even if it were to specifically limit its decision to California, such a decision could be cited in marriage equality cases across the country, and even though it would not be a controlling precedent, it would still stand as the opinion of the highest court in the country.  If the Supremes declined to reconsider the Prop 8 case, on the other hand, the Ninth Circuit’s decision would stand, the direct impact of the ruling would affect California only, and while the Ninth Circuit’s opinion could be cited with some authority (but not as precedent) in the states under its jurisdiction, any citation outside the Ninth Circuit would be merely advisory.  In short, a Supreme Court ruling that does nothing but affirm the Ninth Circuit’s ruling is still more far-reaching than a refusal on the high court’s behalf to even hear the case.

The other two possibilities inherent in Supreme Court review would likely be equally unpalatable to a majority of the justices on the court.  If the Court were to revert to Walker’s conclusions, it would strike down marriage equality bans that are on the books in more than 30 states.  When the American Foundation for Equal Rights (AFER) filed the Prop 8 case on behalf of two California same-sex couples, the original intent of the lawsuit was to secure this kind of broad, sweeping decision from the Supreme Court, a decision that would be in the tradition of Loving v. Virginia, the landmark 1967 decision that ruled interracial marriage bans unconstitutional.

There are significant differences, however, between the Loving case and the Prop 8 case, perhaps the most important one being that, when Loving was decided, only 16 states had anti-miscegination laws, whereas today a large majority of states still outlaws marriage equality.  A Supreme Court decision striking down all of these laws would be a dramatic one indeed.

On the other hand, it would be equally as dramatic for the Supreme Court to reverse both lower courts and uphold Prop 8, since such a ruling would affect all future lower court decisions on marriage equality, precluding them from using the brilliant arguments made by Ted Olson and David Boies in the Prop 8 case.  Such a decision would buck the clear trend of public opinion towards full marriage rights for all couples, and put the Court in an uncomfortable position considering changing views on LGBT rights.

Finally, an explicit decision by the Supreme Court upholding the Ninth Circuit’s decision (or Judge Walker’s) would involve overturning the popular vote of a state’s electorate on a constitutional amendment.  Not surprisingly, judges are extremely wary about taking action against such directly democratic decisions.  This is not to say that popular votes on such issues are inherently correct; on the contrary, the rights of the minority should never be up to a popular, majority vote, since doing so almost always results in those rights being denied.

Although it is the role of the judiciary to protect the rights of the minority against the will of the majority (all spurious accusations of ‘activist judges’ aside), the Supreme Court would no doubt express caution in striking down a popular vote by the electorate.  Because of this and the other possible outcomes of Prop 8 review I mentioned above, it seems like any action the Court could take on the case, other than declining to review it, would create unnecessary complications.

The easiest, and most cautious, path available to the Supreme Court when it come to the Prop 8 case would be to deny any review of the Ninth Circuit’s decision.  The appellate decision would stand, but because the Ninth Circuit chose to restrict the effects of its ruling to California only, no precedent would be set in any of the other states.  No other marriage bans would be struck down, and the Court would not have expressed its support of divisive constitutional amendments like Prop 8.  Instead, Prop 8 would remain a California issue only, and a future marriage equality case would be needed to seek the fundamental right to marriage that AFER sought to affirm.  Of course, the Court is under no obligation to take such a course of action, but they would certainly be wise to do so.

Admittedly, it is frustrating for the marriage equality movement for the Prop 8 case to be limited to California, rather than setting a wider precedent.  Still, given the facts on the ground, it is probably not time to ask the Supreme Court, especially considering this Court’s conservative majority, to recognize such a right.  It is, however, time to seek the striking down of DOMA, which discriminates daily against gay couples that are duly married under their states’ laws.

Perhaps more significantly, a victory in the DOMA case would set an important precedent that would fundamentally alter the future of marriage equality litigation in the U.S., including the Prop 8 case.  In tomorrow’s piece, Part 4 of this series, I will make my final, most important argument: that a win against DOMA would have hitherto under-appreciated effects that would greatly help the fight for full federal marriage equality in the future.

40 Comments

  • 1. Reformed  |  June 13, 2012 at 1:05 pm

    Do you think the supreme court actively follows current litigation and anticipates the cases that will eventually work their way to their doorstep? It is hard for me to immagine that they would one day check their in box and find find "Prop 8" and think, hmmm, what's this about. On the other extreme, with respect to prop 8, I wonder what draft their opinions are currently on.

    So, that is to say, does one before the other possibly affect the outcome, or more the logical construction of the arguments and opinions? (I bet the answer is in the article, but no time to read it right now, sorry.)

  • 2. Steve  |  June 13, 2012 at 1:08 pm

    If declining to review the case means that it won’t be binding precedent in the 9th Circuit, how come Baker is still treated as binding?

  • 3. Rick  |  June 13, 2012 at 1:29 pm

    Perhaps this question will be addressed in pt. 4 of your insightful and informative series, but just in case it isn't, here it is:

    If SCOTUS were to strike down DOMA, what would happen if a gay couple from a state like PA (which does not recognize same-gender marriage) went to NY to get legally married? When they return to PA, would the federal government still recognize their marriage even though PA would not? It's far more than a mere technicality, since the federal benefits for married couples are rather significant. And wouldn't such a ruling open a can of worms with gay couples legally married in one state, but not recognized as such in another state? Don't all states currently recognize all marriages from any other state (other than same-gender marriages)? It would be complicated enough on the marriage side, but even more so if a divorce is sought.

  • 4. Fr. Bill  |  June 13, 2012 at 2:06 pm

    It has been decades since I took Constitutional Law and I never practiced it. I'm in a whole different line of work now. However, I recall that under the Tenth Amendment to the US Constitution states are required to recognize and uphold contracts and court decrees of other states unless they violate the public policy of the state – presumably one that has a rational basis other than fear or bias. One example would be recognition of a no-fault divorce obtained by one party in Nevada by a state that did not have no-fault divorce laws. Recognition of mixed race marriages performed elsewhere were also litigated in state courts (usually over inheritance rights) before the Loving case was decided by the Supreme Court 45 years ago.

  • 5. Fr. Bill  |  June 13, 2012 at 2:08 pm

    maybe it is Article 10. I forget

  • 6. CHRIS  |  June 13, 2012 at 2:13 pm

    Some states allow you to marry your cousin. Some do not. Has anybody ever heard of one of these marriages not being recognized when they moved to another state? If not, then the government would have to come up a with a really good reason to recognize THOSE marriages and not same gender marriages from other states.

  • 7. Sagesse  |  June 13, 2012 at 2:16 pm

    @

  • 8. sfbob  |  June 13, 2012 at 2:35 pm

    There is one very large difference between Prop 8 and the DOMA cases as compared to the case that came to be known as Loving vs Virginia. Anti-miscegenation laws went beyond refusing to recognize mixed-race marriage; such marriages were criminalized.The Lovings were prosecuted for BEING married and living together as husband and wife, even though their marriage had been entered into legally in Washington, DC where (if I recall correctly) they lived before subsequently relocating to Virginia. As unfair as Prop 8 and DOMA most certainly are, neither one is as egregious as what obtained where prohibitions on interracial marriage were still the law.

    As outrageous as they are, neither DOMA nor any state law or constitutional amendment contemplates anything so extreme when it comes to marriage equality. Although there are undoubtedly people in power who'd be more than willing to pass laws criminalizing same-sex marriage; all of those statutes and amendments currently in existence decline to recognize ( I was going to say "merely decline to recognize" but I am not interested in diminishing the basic unfairness of those laws) same-sex marriages performed elsewhere and constrain local authorities from solemnizing such marriages. This very important difference is, I suspect, one of the chief reasons why we are not going to see–now or ever–a Supreme Court decision on marriage equality similar in scope to Loving vs Virginia.

  • 9. Eric  |  June 13, 2012 at 2:42 pm

    The justices know where things are headed, they must also consider whether for all of history they want their name associated with the next Plessy or Bowers.

  • 10. Ann_S  |  June 13, 2012 at 2:47 pm

    sfbob, that is a good point about the criminalization of interracial marriages versus non-recognition of same-sex marriages. I am not as pessimistic as you, though, about never seeing a Loving type of decision on marriage equality.

    One minor point — the Lovings grew up in Virginia and had many ties to family and friends there. They lived for a time in DC but wanted to be close to their families and friends, and so returned to Virginia.

  • 11. Celebrity  |  June 13, 2012 at 2:56 pm

    Article IV sec. 1 — full faith and credit clause. The 10th Am. reserves unto the States those powers that are not explicitly enumerated in the Constitution.

  • 12. Eric  |  June 13, 2012 at 3:04 pm

    Great series. I know where you're headed tomorrow: full faith and credit.

  • 13. Kevin  |  June 13, 2012 at 3:06 pm

    Absolutely. A state does NOT have to recognize another state's marriage if it conflicts strongly with its own public policy. See Sun Oil v. Wortman, 486 U.S. 717 1988 (holding that the Full Faith and Credit Clause does not compel a state to substitute the statutes of other states for its own statutes dealing with a subject matter concerning which it is competent to legislate.)

  • 14. arjay1951  |  June 13, 2012 at 3:17 pm

    The question is not solely whether a couple who has been legally married in another state can have their marriage recognized in another state. All states have a line of precedents as to whether a marriage simply not legal in their state will none-the-less will still be recognized in their state. The difference may well be in determine how many angels are on the head of a pin, but is still significant in many cases. A case of a couple married who are first cousins, for instance, might be decided differently in such a case. One state might find such a marriage legal in that state; another might find it illegal. It was illegal in both states in the sense that it could not be done, but still might be recognized in one and not the other. Unfortunately, such issues have historically been addressed in a probate proceeding, after one or both of the parents die.

  • 15. Jamie  |  June 13, 2012 at 3:38 pm

    How many states had campaign finance laws that limited the amount of money that corporations could spend prior to the decision in Citizens United?

  • 16. goldentriangleglbt  |  June 13, 2012 at 4:04 pm

    First let me say this has been a great essay series I have really enjoyed. Your positions are well thought out. However concerning Prop 8 on the face of it I agree its easier to pass it over for review letting the 9th circuit court stand. since the 9th up held the ruling of the lower court doesn't it actually provide MORE reason for its unconstitutionality rather than limiting the scope to just California? The other element that I am sure SCOTUS is looking at is that this issue isn't going away. today its Prop 8 tomorrow it will be some other case but the Supreme court would be kicking the can down the road. I am left wondering if the Justices will actually gather both these cases and put them to rest once and for all. I can't see the court leaving either of these cases UN-reviewed the fact that two cases involving Gay Marriage are approaching SCOTUS at the same time is a good indication that the easy way isn't going to keep very long.

  • 17. Lymis  |  June 13, 2012 at 4:33 pm

    A part of the basis for the California Supreme Court's refusal to strike down Prop 8 was the fact that by their analysis, all Prop 8 was taking away was the word marriage, and all other then available rights, privileges, and benefits were being conveyed under the California version of civil unions, called Domestic Partnerships.

    If DOMA part 3 is declared unconstitutional and people who are married by their state get access to federal benefits, but people in Domestic Partnerships don't, that is no longer true.

    Would that court decision be able to be revisited, either by some sort of official request, or by a new lawsuit due to the change in circumstances? Or is it locked in because it was what was true at the time, and now is part of the state constitution?

    (That's independent of the fact that public opinion may well shift dramatically if federal benefits become available.)

  • 18. mtnbill  |  June 13, 2012 at 4:40 pm

    1. This discussion about state recognition has gone on before. I think the general conclusions are that marriage is not a court order, so marriages may or may be recognized, but divorce is a judicial action, so another state's divorce would be recognized, but not necessarily marriage.

    2. In another thread, someone responded to my question on the status of civil unions. There is a case in NJ dealing about whether an immigrant's status is equivalent to a spouse.

  • 19. sfbob  |  June 13, 2012 at 5:02 pm

    In this context I don't think the difference is a significant one but it's certainly a good question to ask. I'm not certain but I believe that at least some states included anti-miscegenation laws in their constitutions. Loving got rid of them all, statute and constitutional prevision equally. Or to be more precise, it made them all unenforceable. As we know the last anti-miscegenation statute was not formally repealed until the year 2000. That was either in MS or AL, I don't recall which. On the one hand, it didn't matter because no state had the power to prohibit mixed-race couples from marrying, or to criminalize such marriage, once Loving was issues. But as we have seen with respect to sodomy laws, despite the fact that Lawrence vs Texas invalidated them, several states have been highly resistant to removing them from their statutes and this in and of itself provides a chilling effect. Within the past year the Attorney General of the State of Montana where, by the way, my partner's family resides, basically indicated that even though nobody could actually be prosecuted and convicted under the state's sodomy law he was very happy to have it remain on the books as a way of making gay men and lesbians feel less welcome there. And technically, even though nobody could actually jailed or fined for breaking an unenforceable law, that would not necessarily preclude the threat of arrest for violating it (with the resulting headache of having to go to court to have the arrest expunged and so on).

  • 20. sfbob  |  June 13, 2012 at 5:07 pm

    You're quite correct with regard to the Lovings. Still it is pertinent that, when they married, they did so while living in DC, where such a marriage was completely legal. In effect they subjected themselves to arrest by moving back to Virginia. Such was the insanity of the laws at that time.

    Quite apart from the difference between the legal status of same-sex marriage bans and anti-miscegenation laws, I remain pessimistic about a decision similar to Loving because the political climate nowadays as well as the attitude of the court itself and the underlying mindset of jurisprudence generally is entirely different from what it was in 1967. As we've seen in cases such as Citizens United, the current Supreme Court has no problem overreaching when it comes to their pet issues, but I don't think our rights get them nearly as excited as the possibility that elections can legally be bought and paid for with corporate dollars.

  • 21. Eric  |  June 13, 2012 at 5:34 pm

    Your analysis is incorrect. The California Supreme Court did not find that all that was taken away was a name, as the CalPERS case showed, married same and opposite sex couples are not treated equally by the State. They found that the California Constitution does not grant them the authority to invalidate constitutional amendments.

  • 22. Frisky1  |  June 13, 2012 at 5:43 pm

    Some states also don't recognize other states underage marriages. Texas allows 14 year olds to marry (it may have changed in the past couple years IDK) while Wisconsin has a punishment of jail time and a fine for any Wisconsin citizens who go to another state and get a marriage that Wisconsin would not recognize. And Wisconsin doesn't recognize marriages with participants under 16 years old. This was a talking point when Iowa got marriage equality–whether the state would come after Wisconsin gay couples who got marriage licenses that would not be recognized by Wisconsin.

  • 23. Frisky1  |  June 13, 2012 at 6:03 pm

    Lambda Legal indicates there are other states with similar punishments but Wisconsin has the stiffest one. As far as I know, it has not been tested whether this would applly to SS marriages, it was set up for underage marriages:

    Wisconsin State Statutes
    765.30  Penalties.

    (1) The following may be fined not more than $10,000 or imprisoned for not more than 9 months or both:

    (a)Penalty for marriage outside the state to circumvent the laws. Any person residing and intending to continue to reside in this state who goes outside the state and there contracts a marriage prohibited or declared void under the laws of this state.

  • 24. Sagesse  |  June 13, 2012 at 6:15 pm

    The thing with underage marriage… very shortly afterwards, the parties will be legally able to marry anyway. Do they have to get married again, or are they illegal for life, or….

    Anyway, a same -sex marriage is not a question of becoming eligible to marry at some point. Yet both appear to be covered by the law?

  • 25. Frisky1  |  June 13, 2012 at 6:25 pm

    The penalty does not specifically mention or apply to underage marriages, or any other type of specific nonWisconsin sanctioned marriage. Under age marriage was just the reason that this punishment was apparently put into the statutes.

  • 26. Sagesse  |  June 13, 2012 at 7:00 pm

    DOMA was passed in a hurry in 1996, when the intimate personal relationships of LGBT Americans were illegal in many states. It was a giant symbolic statement with no practical impact on anyone. No American was harmed by it until 2003, when LGBT couples began to marry in Massachusetts. There was no move to overturn it because it wasn't affecting anyone.

    The GAO did not count up the 1,138 benefits provided to married Americans until after the law was passed. How many of the legislators who voted for it imagined it would impact immigration entitlements for LGBT people. Many of the legislators at the time thought the important part of the law was Section 2, which would prevent the states from being overrun by LGBT couples married in Hawaii.

    This is the act of Congress to which much deference is due?

  • 27. Kevin  |  June 13, 2012 at 9:51 pm

    I disagree. I think the distinction is significant. The fact that anti-LGBT amendments are enshrined in the governing charters of more than 30 sovereign states speaks to the special disability imposed upon, and only upon, gay men and lesbians. The amendments also utterly foreclose any possibility of judicial review by this minority group under state law. The sheer scope of this gov't action and impossibility of redress make measures such as these more vulnerable to Equal Protection and Due Process arguments because their means exceed the putative ends of promoting/preserving traditional marriage or child rearing in a way that statutes do not.

  • 28. Michael  |  June 13, 2012 at 11:10 pm

    In the Romer v. Evens decision, I remember Judge Scalia saying that it opened the door to gay marriage. I always found this very curious, that a staunch conservative would say such a thing, because he stated right there that the way to marriage equality was open. I wonder if there is any chance he would vote against DOMA and Prop 8, based on his statement in 2003?

  • 29. Straight Dave  |  June 14, 2012 at 6:32 am

    Not that I pretend to know what goes through Scalia's mind, but at the time he wrote that I remember thinking that it was largely an official whine to the majority. It came across as him saying "now look what you've gone and done"! I never took it as implying that he was prepared to follow that lead and vote for SSM. I've always seen Scalia as doing whatever the hell he wanted, regardless of how he had to justify it. He might even vote for cert on Perry just to overturn the 9th.
    But he has made public mumblings about DOMA possibly being unconstitutional. I mean this thing is so bad I would not be shocked to see 9-0 if he can persuade Kennedy to leave out the word "animus" which rankles some people.

  • 30. whabbear  |  June 14, 2012 at 7:16 am

    Eric: I disagree that when Jacob finished with this tantalizing conclusion: "I will make my final, most important argument: that a win against DOMA would have hitherto under-appreciated effects that would greatly help the fight for full federal marriage equality in the future"

    he was heading for full faith and credit. Instead, I think he's going to make note of the fact that for the Supremes to strike down DOMA Section 3, they're going to have to agree with, and affirm, lower court rulings that the gov has no compelling reason to single out and discriminate against same-sex marriages. And that will "greatly help the fight for full marriage equality in the future".

    I await tomorrow with great anticipation!

  • 31. Steve  |  June 14, 2012 at 7:24 am

    Which just shows how deeply flawed the initiative process is. It completely circumvents the principles of checks and balances, when neither the legislature, nor the courts can do anything about them if they change the constitution

  • 32. Steve  |  June 14, 2012 at 7:25 am

    That's also why adoptions in one state are generally recognized in other state. So second parent adoptions are advisable if a couple wants to make sure their status is parent is recognized elsewhere

  • 33. Steve  |  June 14, 2012 at 7:27 am

    There were actually some lone calls for further study on the possible impact and to see how many laws would be affected. That was voted down in some committee I think

  • 34. Steve  |  June 14, 2012 at 7:29 am

    He was talking somewhat sarcastically. The tone is obvious even in writing.

  • 35. Steve  |  June 14, 2012 at 7:31 am

    Also, it was Lawrence v Texas:

    "If moral disapprobation of homosexual conduct is "no legitimate state interest" for purposes of proscribing that conduct…what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising "the liberty protected by the Constitution"? Surely not the encouragement of procreation, since the sterile and the elderly are allowed to marry."

  • 36. fRaNkLiN  |  June 14, 2012 at 8:48 am

    When was the last time you heard of a state refusing to recognize ANY heterosexual marriage?

  • 37. sfbob  |  June 14, 2012 at 9:50 am

    Good point Kevin.

  • 38. Laurel  |  June 14, 2012 at 10:50 am

    Use of the phrase "strike down DOMA" is inaccurate regarding the MA DOMA cases. Those cases are a challenge to section 3 of DOMA, not to the entire law. If the Supreme Court rules in our favor in those cases, DOMA will *not* be struck down entirely, only Sec. 3. I'm afraid that your phrasing will give people false hopes and a skewed view of what is actually at stake.

  • 39. Lymis  |  June 15, 2012 at 6:03 am

    I'm waiting to see how he weasels out of that when an actual marriage equality decision comes before him. I can't believe he'll say that he has to rule in favor of marriage equality because of the Lawrence precedent.

    But a scathing concurrent opinion by him that he's forced to agree that this disgusting and abhorrent thing is nonetheless required by stare decisis and he must stand by the Lawrence decision and rule in favor because there is no longer any possible reason for denying it to the scary perverts would be a delight to read.

  • 40. Ann_S  |  June 15, 2012 at 7:32 am

    It was in his dissent, so it's not really binding on him or anyone else. He'll say it was there for the sake of illustrating the absurdity of the majority position or something, and won't consider himself bound to vote that way. No sir!

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