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1CA Rules DOMA Unconstitutional: What Will the Supremes Do?

[ 42 ] May 31, 2012 |

Obviously good news.

I should probably defend my claim that there’s an outside chance that Thomas could join an opinion upholding the 1st Circuit’s opinion.  I have a couple reasons for saying so:

  • Thomas is the closest there is on the Supreme Court to being an exception to Lemieux’s dictum that Nobody Cares About Federalism.   Gonzales v. Raich showed that Thomas, unlike Scalia and Kennedy, was willing to prioritize federalism over the policy preferences of Republican officials.
  • Of course, marijuana prosecutions aren’t exactly a core priority either, and for Thomas as for everyone else when legal principles conflict with deeply held policy desires the latter will likely prevail if there’s any way of making the argument.
  • So, the question is whether for Thomas same-sex marriage is a core issue or a more peripheral one, like medical marijuana.   Scalia will obviously vote to reverse because he 1)cares a lot less about federalism than Thomas, and 2)cares a great deal about preserving discrimination against gays and lesbians.   Thomas, however, distanced himself from Scalia’s culture warfare in his own Lawrence dissent, and it’s not clear how important same-sex marriage is to him.

This isn’t to say that I think there’s a really good chance that it will happen — DOMA is different than anti-sodomy laws.   It also doesn’t really matter, because it’s impossible to imagine an anti-DOMA ruling that Thomas would join that Kennedy and the four Democratic appointees wouldn’t.   But I wouldn’t be completely shocked if Thomas provided a sixth vote, and Roberts might go along in that case too.   I would be very surprised if there weren’t at least 5 votes to uphold it, though.

Comments (42)

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  1. Malaclypse says:

    Does that mean that this is now governing law within 1CA? Because if it is, a whole lot of people’s tax status just changed.

    • rea says:

      It’s stayed pending a S Ct decision

      • Spud says:

        You know there are spring-loaded lawyers at the IRS which will come up with new rules to be drafted at the push of a button.

        • rea says:

          What are they going to do–aboliish joint returns by married peopel?

          • Holden Pattern says:

            The opposite, I suspect. If you say you’re married, you’re married.

            The IRS doesn’t ask straight couples for a marriage certificate, so the only question w/r/t tax liability is whether or not you were telling the truth. Under the current rules, you can’t tell the truth — you have to lie to the IRS about your marital status because they won’t recognize same sex marriage.

            There might be some ancillary stuff around the taxability of job benefits, but that again is just “Is this person married to that person? OK, then these benefits are treated the same way as any other married person’s benefits.”

            • Murc says:

              Under the current rules, you can’t tell the truth — you have to lie to the IRS about your marital status

              Legally speaking I don’t think this is true. You can be married in the eyes of the State of Massachusetts and NOT married in the eyes of the United States of America. That seems insane, but, well, we live under a federal system, which has a lot of insanity built in.

              But filing singly to the IRS, which doesn’t give a damn about what rights and privileges your state gives you, only the feds, can’t really be characterized as a lie.

              • Spud says:

                Legally speaking I don’t think this is true. You can be married in the eyes of the State of Massachusetts and NOT married in the eyes of the United States of America. That seems insane, but, well, we live under a federal system, which has a lot of insanity built in.

                Only if you are gay, thanks to DOMA. DOMA allowed the federal government not to recognize such things. Or at least that was the case until today.

                If you are straight, its always been full faith and credit all the way.

                But Holden is correct, the IRS doesn’t really care. It won’t change the fundamental laws and procedures for income tax filings to them. Just open it up for a wider group.

                One of the great things about marriage equality is that thanks to gender neutral family laws, it requires virtually no effort to adapt most current laws to it. (Unlike every ridiculous analogy used by wingtards)

                • Murc says:

                  If you are straight, its always been full faith and credit all the way.

                  … no, it hasn’t.

                  State governments have been restricting and granting marriage rights based on purely arbitrary reasons since the founding of the Republic, the public policy exemption trumps full faith and credit, and there were PLENTY of straight couples to whom plenty of states denied the right to marry, within living memory even.

                • Malaclypse says:

                  This is true, but if any straight couple was married in the eyes of their state, they were married in the eyes of the feds. Not the case for same-sex couples.

                • Murc says:

                  You know, now I’m actually curious as to whether or not there was ever a serious attempt to delegitimize mixed-race couples at the national level.

                  I know the culture wars of the early 19th century were much different than our modern ones, and that the legal benefits being married conferred on people were somewhat different, but the southern crazies were pretty crazy even then and I wouldn’t have put it past them.

                • Spud says:

                  It was more about creating barriers to marriage in the first place.

                  In general the family courts tended to take a stance that if a marriage was already on the books somewhere, that it was left alone. Despite regional bans, interracial marriages happened all the time. It meant one had to go to another state or country to do it.

                  The US always recognized marriages which happened outside of the country (with the exception of polygamous ones) and illegitimacy of children carried a much stronger social and legal penalty than it does today.

                  De-legitimizing existing marriage was seen as declaring children of such unions as bastards. Something people did not want to encourage.

                • Malaclypse says:

                  I know the culture wars of the early 19th century were much different than our modern ones,

                  Pedantic point – the culture war of the early (to mid) 19th century was slavery. I think you mean 20th.

                • Murc says:

                  No, actually, I meant early to mid 19th century, which is the only time I could see a serious effort to delegitimize mixed-race marriages at a national level happening.

                  After the Civil War there’d have been no political constituency strong enough to make it happen; regions of the country that objected to what they called miscegenation contended themselves with simply not recognizing the validity of marriages issues in other states within their own borders. (That is, you’d have situations in which the United States would consider you married, and many states would consider you married, but many other states would not.)

                  So if it ever happened at all, it would have had to been tried in the early 19th century, I think.

  2. david mizner says:

    Wow. I didn’t know this.

    Thomas, unlike Scalia and Kennedy, was willing to prioritize federalism over the policy preferences of Republican officials.

    • David Hunt says:

      I’ve read things like this before. I don’t know legal stuff and I haven’t read Supreme Court rulings since college, but I’ve read stuff by people I trust that says similar things. To summarize (probably badly), Thomas is considered more conservative than Scalia by these people but less of a hack. As Mr. Lemieux implies, his judicial philosophy may be more conservative than Scalia’s but he he’s less likely to set it aside to bring about a politically preferred outcome. Note that I wrote “less likely” and not “unwilling.” I didn’t say that he wasn’t a hack. I said he was less of one. I don’t consider myself qualified to say whether Thomas is a hack.

      Scalia on the other hand…

      • Scott Lemieux says:

        Thomas is considered more conservative than Scalia by these people but less of a hack.

        That’s it in a nutshell.

        • Davis X. Machina says:

          Objection, assumes facts not in evidence — that there’s an actually-existing conservatism that isn’t essentially hackitude.

          • rea says:

            Oh, no, there are plenty of crazy people who aren’t hacks.

            • timb says:

              this.

              And Thomas and his Gilded Age Era approach to Federal jurisprudence applies. I am NOT convinced he is not a hack (hell, I used to think Scalia wasn’t a complete one), but as the re-incarnation of Cal Coolidge, he may get a chance to show us whether he’s a hack or not.

          • Murc says:

            I’ve met plenty of conservatives who are neither crazy nor hacks, but they tended to be guys who vote Republican (and who, these days, have little actual idea what Republicanism really is) rather than guys who wield any actual power, either as opinion-makers or policy-makers.

        • Anon21 says:

          Even Scalia’s not a complete hack. Look at Hamdi, Kyllo, Crawford, or Booker.

          Basically, Supreme Court reporters (and yes, this emphatically includes the “sainted” Dahlia Lithwick) prefer a compelling black hats and white hats narrative to an accurate narrative. Most judges, most of the time, are somewhere between hacks and principled statesmen.

  3. jameson quinn says:

    Way to bury the lede. “Thomas could join a decision upholding………….. as the 6th vote.” Most of us couldn’t reliably name all 9, and certainly can’t count the “obvious” votes as you can.

    • John says:

      Seriously, most people reading this blog can’t figure out that the five most likely votes to rule DOMA unconstitutional are Kennedy, Ginsburg, Breyer, Sotomayor, and Kagan?

      • Hogan says:

        Especially when Scott specifically mentions “Kennedy and the four Democratic appointees”?

        • mark f says:

          Yeah, plus he mentions Roberts (as a potential seventh vote) and Scalia (as an obvious No). The only justice neither named nor alluded to is Alito. Google is hard, and that makes JQ very, very angry.

          • Hogan says:

            The only justice neither named nor alluded to is Alito.

            Around here we call him He Who Must Not Be Named.

            • Yog Sothoth, Devourer of Souls says:

              Around here we call him He Who Must Not Be Named.

              Ahem, mortal. I believe I am beginning to notice you.

              • Hogan says:

                Is it just me, or is it getting squamous and rugose in here?

                • wjts says:

                  Positively batrachian, now that you mention it.

                • Malaclypse says:

                  In a recent column you warned against overindulgence in Stephen R.Donaldson. Please lucubrate that I, argute with beneficent mansuetude and analystic refulgence, have made my preterite way eight times through all six sapid, clinquant volumes of the fulvous “Thomas Covenant” agglomeration without ill effects, not even surquedry or caducity. You are just an exigent cynosure of unambergrised malison. Despite your hurling that flinching warning like a bayamo-sped jerid, my lambent prose style is finer than ever: aneled, gelid, knurred, roborant and telic!

                • firefall says:

                  Mal: brilliant, and I’m daunted to even try an imitation – but there are now 8 volumes of Covenanture, with a 9th sliming its way over the horizon even now.

      • jameson quinn says:

        I’m not saying I can’t fit names to a number, I’m saying that when you’re discussing how Thomas might play against type, I’m not automatically assuming that everyone before him on the list has already chosen the Light. If “Could be 6-3″ were the headline, I could figure out which 6.

      • When SL closes the post with “I would be very surprised if there weren’t at least 5 votes to uphold it, though.” Would be clearer if he had specified whether he meant five votes for the 1CA ruling or for DOMA. Some might not see Kennedy as such a lock.

    • Scott Lemieux says:

      Well, I’ll have a longer vote-counting piece at the Guardian for tomorrow, so your prayer will be answered!

  4. Steve M. says:

    I’m sure Thomas would vote to uphold the continuing legality of girl-girl pr0n. Gay marriage, not so much.

  5. Joe says:

    In the marijuana case, three justices dissented, though two aren’t on the Court.

    I wonder where Gonzales v. Oregon (euthanasia drugs) fits in here. Kennedy wrote the opinion concerned with “radical shift of authority from the States to the Federal Government to define general standards of medical practice in every locality” w/o clear justification. He upheld local use of the drug.

    Anyway, the 1CA ruling is Kennedy-esque. It combines his concern for selectively targeting gays with his concerns about federalism. I think, as the GLBT strategists who wanted this case to be next over the Prop 8 one, it has a good chance of standing up.

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  7. [...] ruling correctly on issues involving gay rights, be it anti-sodomy laws or this historic ruling. (Even Thomas could theoretically rule the right [...]

  8. hogan scarpe says:

    Tra gli invitati anche capi di Stato e di governo stranieri: per l’Italia è confermata la presenza del presidente del Consiglio Mario Monti. I rintocchi del Big Ben verranno interrotti, il silenzio della torre dell’orologio è stato deciso come segno di rispetto per la prima e ad oggi unica donna premier del Regno Unito. Una decisione con pochissimi precedenti, l’ultima volta accadde per i funerali di Stato di Winston Churchill nel 1965.

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