7 responses

  1. Jim Hlavac
    December 7, 2012

    I think the Scotus folks realize that if they decide only in the two cases very specifically, then the onslaught of cases will continue — there’s more in the pipeline already; more come everyday. And they don’t want to imply upfront that they will get rid of DOMA completely, and the little DOMAS if they can — so, the escape hatch, and the request for the entirety of the matter. I think the court realizes full well that we gay folks are not going to give up, ever. And they must weigh that, in a non-legal fashion, of course, with whether they want to hear DOMA and marriage cases for the next decade or more, every year — with more and more conflicting cases from lower courts, as the morass of not obeying the “full faith and credit” clause between states becomes apparent in the mishmash of some states with gay marriage and some without. Oh, give those poor nine a break; they’re not ready yet for the gay challenges; I doubt they even considered all the possibilities and want to know what they’re up against.

  2. Thom Watson
    December 7, 2012

    If they decide based on standing, though, then don’t they end up creating the very sort of thing they exist to resolve, a situation where a federal law is annulled only in one circuit, but still applies to citizens in the rest of the country? That’s what confuses me about why they brought up standing in Windsor, but then only accepted one case rather than also accepting another in which standing might not be an issue. Are they willing to let a law be constitutional in some circuits but unconstitutional in others, just to punt having to make a decision? Especially given that DOMA doesn’t even require that any state recognize a same-sex couple’s marriage, I’m confused as to why they wouldn’t want to just address the issue at stake.

  3. Thom Watson
    December 7, 2012

    After all, there are conservatives who accept that DOMA is an unconstitutional attack upon federalism. It shouldn’t be nearly as politically risky a decision for the court to make that they feel they have to avoid making it.

  4. Robert
    December 7, 2012

    I think that since both cases are unique in their “standing” aspects that both will be decided to lack standing and thus limit the decision to the State of California and to Ms Windsors district. This will be a limited scope decision and they basicly telegraphed that they plan to punt.

  5. CLD
    December 8, 2012

    “DOMA fails constitutional muster by violating the Equal Protection clause under the Fifth Amendment.”

    WHAT?

    The Fifth Amendment has no equal protection clause. The only such clause is in the Fourteenth Amendment which binds only the State goverments.

    Do lawyers today even bother to read the Constitution, or do they just make it up as they go along? (That question was rhetorical.)

  6. Marek
    December 10, 2012

    CLD, well, I think you might be both right and wrong at the same time. :) The thing is that literally if you look at what is in these amendments – you are right. But it seems to me that the way it has been read in practice was that the state-limiting equal protection clause of the 14th got expanded (based on the 5th) to limit the federal government/law. I might be wrong…

  7. Marek
    December 11, 2012

    CLD, see also the text of the question to the SCOTUS:
    http://www.scotusblog.com/case-files/cases/windsor-v-united-states/

    Its says: “equal protection of the laws, as guaranteed by the Fifth Amendment”…

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