Big Wednesday 2013

Yesterday, I finally had a spare moment to set up for today’s cases. And I threw in my predictions just to go on the record. No, I don’t know why the Court is taking three days to do what I was expected it to do in one.  So, here’s today’s action from the Supreme Court:

Sekhar v. United States: Recall that this case deals with whether an in-house counsel’s opinion to a public entity can be considered “property” for purposes of an extortion statute. Reversed, unanimously, in an opinion by Scalia: this is not “property” so it cannot be extortion. Concurrence by Alito, joined by Kennedy and Sotomayor.

Hollingsworth v. Perry: This is the constitutional challenge to California’s Proposition 8, which banned same-sex marriages by initiative. The first question was whether the proponents of Proposition 8 had standing to defend it in court, given that California’s governors and attorneys general declined to do so. It appears not, which means the Court would have no reason to reach the Equal Protections merits of the Proposition 8 challenge. 5-4 vote, Chief Justice Roberts has the majority opinion, joined by Scalia, Ginsburg, Breyer, and Kagan. Dissent by Kennedy, joined by Thomas, Alito, and Sotomayor. That’s… not the breakdown I predicted. The result is the appeal is vacated and dismissed, leaving… I guess leaving the District Court opinion in place. Gotta think about this.

United States v. Windsor: This is the constitutional challenge to the Federal Defense of Marriage Act, as applied to tax liability on life insurance benefits paid in 2009 to a woman who married her partner of then thirty-eight years in Canada in 2007. Again, there was a serious question of the standing of the only people who wanted to defend the law, the House of Representatives, since the President declined to defend the law. Holding: DOMA is unconstitutional under the equal protections clause of the Fifth Amendment. 5-4 vote, Kennedy in the majority, joined by Ginsburg, Breyer, Sotomayor, and Kagan. Apparently there’s a finding that DOMA serves no “legitimate” purpose, which means DOMA would not survive even rational basis review. Dissents by Roberts (on jurisdiction and federalism), Scalia (on judicial activism), and Alito (on procreation); Thomas joins Scalia’s dissent and Roberts joins Scalia’s dissent in part, and Thomas also joins Alito’s dissent in part. Probably a lot of good language in there about standards of review which I’ll have to read later today.

So we have no clear statement of a right to same-sex marriage, but apparently laws that prohibit it serve no legitimate purpose, at least at the Federal level. As yet untested, because of the lack-of-standing holding in the Perry case, is whether a legitimate purpose to a same-sex marriage ban can be found within a state’s plenary police power. That fight will have to wait for another day, in another case, perhaps far enough in the future that it would be decided by a court with slightly different makeup than today’s.

And with that I have to get ready for court. I’ll join the discussion later, as I’m able to do so.

Burt Likko

Pseudonymous Portlander. Homebrewer. Atheist. Recovering litigator. Recovering Republican. Recovering Catholic. Recovering divorcé. Recovering Former Editor-in-Chief of Ordinary Times. House Likko's Words: Scite Verum. Colite Iusticia. Vivere Con Gaudium.


  1. Holding: DOMA is unconstitutional under the equal protections clause of the Fifth Amendment. 5-4 vote.

    Man, I can’t wait to read the (summaries of) opinions written by (really smart legal analysts re:) the dissenters.

  2. Scalia:

    We have no power to decide this case. And even if we did, we have no power under the
    Constitution to invalidate this democratically adopted legislation.

    Filthy hypocrite.

    • Scalia employs a different standard of coherence than you do Mike. One that’s less coherent.

    • I’m not an expert, but isn’t that exactly what the SC does?

      • Courts have no power to overrule democratically adopted legislation except if that legislation pertains to voting rights or affirmative action.

    • Did he really write this? This hast to be the stupidest sentence in any Supreme Court case ever including Dred Scott and Plessy v. Fergusson. For most the late 19th and early 20th century, the Supreme Court spent its time reversing many democratically adopted pieces of legislation. Scalia has voted to reverse democratically adopted pieces of legislation.

      Why is Scalia considered intelligent again?

      • Generally, he is. But having read some of his other dissents on gay rights matters, there’s something about homosexuality that gets him going in an irrational and truly nasty manner. His dissent in Lawrence is an exercise in homophobia. Substitute African-American or Jew for homosexual in that dissent and you get a feel for just how deep his issue with gay people goes.

        • I think that if Scalia was truly intelligent, he’d be able to control himself and write a less stupid seeming bad decision. Roberts is very skilled at this.

          • When Scalia was first on the Court, he did his best to write persuasive decisions. He imagined he’d be a highly influential justice, one that would place his own stamp on the Court and be considered one of the great names of American jurisprudence. Once he realized that he influenced no one outside his own camp, he gave up on that and now writes whatever the hell he feels like.

          • Such a realization could have been liberating, in a certain way. He can be der überrichter, able to do that which other judges forbid themselves from doing.

          • I think the amount of lecturing of the other justices that you see in his opinions makes that clear. His dissent in Windsor is a perfect example.

  3. Damn – Burt! You’re the first person I was able to find for any reporting on the results of the Prop 8 case. Impressive.

    And that is about the strangest breakdown of votes I’ve ever seen on a high-profile case.

    • SCOTUSblog beat me, I’m sure. I had their liveblog up while I real-time-edited this post.

      Of course, they have their top guy in the chambers, reading the handout opinions and listening to the oral readings.

      What I have is a whole lot of refreshing on the term opinion page at and furiously fast scanning of the opinions, unassisted by human beings. Errors resulting therefore are entirely my own.

    • Looking only at the syllabus so far, I have to say that Roberts’ argument for denying standing in Perry is more compelling than I was expecting it to be. I haven’t decided whether I agree with it, but I can see its appeal.

      • Fisher had standing without being able to demonstrate any damages, as does BLAG, but the Prop. 8 proponents do not. It’s hard to see any consistent principles there.

        • State officials can decline to defend laws and, by doing so, gives the Supreme Court an opening to decline ruling on a law based on nobody having standing?

          That’s one hell of a racket.

          • Well, it just means that the ruling in the lower court stands. As I said below, I think that this decision still allows outside groups to intervene in an existing proceeding if the state declines to defend the law, so ballot initiatives get a representation at the District Court level, at least.

          • And if the plaintiffs lose in the lower court, they’d have standing to appeal. I think.

          • On the other hand, the Sierra Club has standing to litigate on behalf of wild critters, despite the fact that none of the critters who benefit from the ruling are themselves members of the Sierra Club. Not that I don’t like the Sierra Club or wild critters; but the Sierra Club’s generalized enjoyment of nature is not a tangible enough interest on its own to meet standing requirements.

            This is particularly problematic when considering citizen initiatives. The whole point of citizen initiatives is that the laws they enact presumably would not have been enacted by the regular elected government officials, so it’s perhaps not surprising that the regular elected government officials might find them unpopular and refuse to defend them, much less give them the full-throated defense necessary for a court to have entertained appropriate argument before rendering a decision. If the citizen-legislators behind an initiative are not allowed to defend their law, and the state won’t defend it, then indeed, it would appear that nobody has standing at all and the courts cannot exercise their power of judicial review — a power which I think is an important facet in our lawmaking process.

            It’s when a case becomes a hot potato that more searching sorts of standing issues tend to move up to the fore. I’ve been arguing for some time that the standing requirement should be broadly construed. That would have forced the Court to deal with Prop. 8 on its merits today, but disposing of difficult Constitutional cases on their merits is what the Court exists to do.

          • Burt,

            On the other hand, the Sierra Club has standing to litigate on behalf of wild critters, despite the fact that none of the critters who benefit from the ruling are themselves members of the Sierra Club. Not that I don’t like the Sierra Club or wild critters; but the Sierra Club’s generalized enjoyment of nature is not a tangible enough interest on its own to meet standing requirements.

            Don’t citizens have rights here under their right of assembly? That’s how I understood it; but I don’t recall why I think that.

      • So, if I read this right, they have standing to intervene in an existing proceeding, if the state declines to defend an existing law, but not to appeal a loss in those proceedings.

        • If I’m reading it right (no guarantees express or implied), the question is always whether the plaintiff has standing. At the lowest level, the plaintiff is the one injured by the law, and the state (or the state-substitute-group) is the defendant, so as long as the plaintiff can show injury, there’s no issue with standing. As long as the originally injured party keeps losing and appealing, there’s still no issue, because the plaintiff still has standing. It’s only after the injured party wins that appeals become problematical, because now the state-substitute-group are the plaintiffs.

          So there’s no way that the state’s refusing to defend a law can be used as a strategy to support it.

        • It’s not that hard, really:

          “Standing is what we deny when we would dislike the result of deciding a case.”

  4. So we have no clear statement of a right to same-sex marriage, but apparently laws that prohibit it serve no legitimate purpose.

    While I might technically agree to the first part, I don’t see how the 9th Amendment would carry me to anywhere but the second part.

    It’s good that they got this one right. It’s a pity that they didn’t get it righter.

    • To me, the practical results seem to be that if a couple gets married in a state that allows gay marriage, the federal government must recognize it and provide the same benefits to a gay couple it would to a straight couple. However, the decision as to whether to allow gay marriage or not. It raises a lot of interesting questions about what happens if a gay couple gets married in a state that allows it, then moves to a state that does not. It would seem the new state doesn’t have to recognize the marriage, but the Feds still do.

      • I don’t see how this set-up can last for long, although my understanding is that this was the case with interracial marriages prior to the 1967 Loving ruling.

        • I agree – Kennedy’s language makes it sound like he was ready to rule Prop 8 unconstitutional on the merits, which is reinforced by the fact that he was in the dissent in that case. There’s a lot of language in his DOMA decision that will provide Courts of Appeal with cover to overturn anti-SSM laws. I predict that within two or three years, we’ll have a big split amongst the circuits on this, and the SCOTUS will have to decide the issue once and for all. In the meantime, whether by legislation or court decisions, the vast majority of the population will live in jurisdictions where SSM is legal.

          • Mark,

            When decisions are arrived at during the same term (or whatever it is called), do they have bearing on each other? Could they refer to the DOMA ruling when deciding the Prop 8 case? Would things have been different if the DOMA case was this year and the Prop 8 case next year? Could this have been a strategic error challenging them concurrently?

          • They absolutely could have. In this case, the reason they didn’t (keeping in mind I’m still working through the opinions when I have time) is presumably that the ruling on standing means that they don’t even reach the substantive issue in the Prop 8 case.

          • Reading through some mined quotes from Windsor it is clear that there is substantial interplay with Perry.

          • Thanks to both of you, here and elsewhere, for your highly informative work!

      • What if they marry in a state that doesn’t allow it? It seems to me that the Feds should recognize it even if the State doesn’t… but that’s not obvious from the decision…

        • I don’t see how you could get married somewhere that doesn’t allow it. But I can see a Vegas type situation; that is, a state with no or minimal residency requirements for getting a marriage license. A gay couple from Alabama or Kansas goes there and gets married. Their home state may not have to recognize it but the Feds likely would.

          I don’t know how long this regime can last. As more and more states recognize gay marriage, I think the courts will eventually rule that states have to recognize gay marriages performed in other states as valid.

          • Do most states have residency requirements? We live in NY but got married in CT because that is where our ceremony was. Our license is from CT. We’ve never lived there. [Gulp] I hope we’re still married!

          • I don’t know how many do, Kazzy. We got married in Illinois where we lived at the time. I’m sure your marriage is legal.

          • You’ve got nothing to worry about, Kazzy. To the extent there’s a residency requirement, it would only be for the state actually issuing the marriage license, and once you actually get the marriage license, you’re married, with certain notable exceptions (SSM being one in most states that have laws actively banning it; consanguinity and polygamy being the others).

          • You can get married. I’m sure the local Unitarian Church would cheerfully officiate a Life Partnership Ceremony. It’s just that the state doesn’t recognize the marriage… but the Feds should.

            Or I’d think.

            I mean, when the Lovings were arrested, they pointed to their marriage certificate on the wall. Story tells that the Sheriff said “that’s no good here”. If we reach a point where the Feds say something similar to a couple with a Life Partnership Ceremony Certificate from a state where SSM isn’t recognized? That will make it to the Supreme Court in record time.

          • Mark Thompson, consanguinity is an interesting issue. Some states allow first cousins to marry, other states don’t. What happens if married first cousins move to a state that would not have allowed them to marry in the first place? My guess is that these marriages are treated as any other, even if they could not have been entered into within that state.

          • Some states allow first cousins to marry, other states don’t.

            And then there’s Austria…

          • There are all sorts of weird precedents. For instance, a polygamous family from another country that lives in the US is still a family; we still recognize that marriage as legal.

            So I think there’s some reason to think a marriage recognized as legal in the state/nation where it was performed would be recognized anywhere.

            In Maine, the ballot simply asked if the state should issue licenses to same-sex couples; it was approved, and that’s now the law — Maine will issue marriage license to same-sex couples.

            I looked at the state’s advice on folk seeking to get married here in ME (we are a big destination-wedding state,) and here’s what it says:

            How to Get a Marriage License

            Marriage licenses are issued at the town or city level. Both the bride and groom must visit the town office in person to apply for the marriage license. You may want to check your town’s website for information.

            If both of you are residents of the state of Maine, you should both apply at the town office where at least one of you is a resident. If you are residents of different Maine towns, you both may apply in one town or the other – you do not need to apply separately in each town.
            If one is from out of state, then both of you should apply in the town where one holds residency.
            If neither of you is a resident of Maine, then you may apply in any Maine town office. It need not be the same town where you plan to be married.
            Your marriage license is valid for 90 days and can only be used within the State of Maine. There is no longer a Waiting Period from the time your marriage license is issued until your wedding can take place. The person performing the ceremony is responsible for filing the marriage certificate with the town office that issued the marriage license.

            So, if you live in a state without SSM, you could legally marry here in ME, and the federal gov. would also have to recognize that marriage. I believe marriages in one state have to be recognized in others under the interstate commerce law, will someone correct if this is incorrect?

          • It would be the full faith and credit clause, actually. It’s also a bit more complicated than that, IIRC, though I need to refresh my memory on the parameters.

          • Instead of “Interstate Commerce”, I believe it’s “Full Faith and Credit”.

            Which isn’t to say that Marriage isn’t Interstate Commerce. Of course it would be. It’s just the fact that Marriage being Interstate Commerce is what would allow the Congress to legislate over it (as opposed to it not having jurisdiction).

          • Full Faith and Credit does not yet apply to marriage. I think gay marriage could change that, but for interracial marriage, challenges were not successfully made on that basis. So there will be a significant argument against marriages in Maine applying to South Carolina.

            Which I don’t think is right, by my ignorant understanding of things. I cannot think of good reasons why FFC should not at least apply to two-party marriages. I think there is a better argument that it shouldn’t apply to plural marriages, if a state were to legalize them.

          • Full faith and credit doesn’t apply to marriage? I thought that was one of the reasons for DOMA–to ensure that states that did not allow gay marriage did not have to recognize gay marriages granted in states that permitted it.

          • FF&C hasn’t yet been applied to marriage. Seems to me like it would.

            Since many people still insist that marriage is a contract,* what about the Contracts Clause?

            * I do not. I would call marriage a “special relationship” rather than a contractual one, despite what appear to be reciprocal exchanges of promises between the spouses; in other contexts much of the “consideration” exchanged like personal services and sexual fidelity are troublesome as the subject matter of a legal contract. The government at both the state and federal level are involved too.

          • If FFC applied to marriage, the Lovings could have traveled to some sane state, married, and returned toi Virginia.

          • Michelle, it hasn’t yet been found to apply to marriage as a constitutional requirement, despite a prime opportunity for it to be so for interracial marriage. It’s discussed here:

            ”No state has ever been required by the full faith and credit clause to recognize any marriage they didn’t want to,” said Andrew Koppelman, a law professor at Northwestern University and the author of ”The Gay Rights Question in Contemporary American Law.”

            Indeed, until the Supreme Court struck down all laws banning interracial marriage in 1967, the nation lived with a patchwork of laws on the question. Those states that found interracial marriages offensive to their public policies were not required to recognize such marriages performed elsewhere, though sometimes they did, but as a matter of choice rather than constitutional compulsion. That experience is instructive, legal scholars say, about what is likely to happen when Massachusetts starts performing gay marriages in May.

          • Thank you, all, for the correction. As always, I’m grateful.

          • If FFC applied to marriage, the Lovings could have traveled to some sane state, married, and returned toi Virginia.

            That’s kinda what happened. Instead of traveling to a sane state, they went to Warshington, D.C. and married there. It was the marriage certificate on the wall (“that’s no good here”) that became, ahem, “the evidence for the criminal charge of ‘cohabiting as man and wife, against the peace and dignity of the Commonwealth’ that was brought against them.”

          • And thinking about it some more, it’s good that Loving wasn’t decided on those grounds. They came out and said “this law is unconstitutional” and got rid of it rather than saying “maybe Virginia can forbid people from marrying in Virginia, but they can’t forbid people from *BEING* married in Virginia”… which is where I believe the FFC would come up.

            And what we’re going to see with SSM, I think. We’re going to see some nice couple get married and then move to Texas or something and Texas is going to engage in an act that says, effectively, “that’s no good here”… and *THAT* will invoke the FFC clause this time.

          • That’s one of the two next cases, Jay. The last one is a straight-ahead challenge to an anti-SSM state constitutional amendment in a state where the public officials will be hostile to that effort.

            Both of those lawsuits will be filed in 5… 4… 3…

          • And I rather suspect that they’ll try to split the difference on that.

            The decision will be that Texas can prevent people from getting married (5-4), but they won’t be able to prevent people from being married (7-2).

          • I dunno. It’s hard to read Kennedy’s language in Windsor and not come to the conclusion that he’s ready to rule SSM bans unconstitutional, period. That he was in the dissent in Perry also suggests he’s ready. In a case where a standing issue couldn’t be contrived, I can’t see Breyer, Kagan, or Ginsburg holding back.

          • I could see Breyer hesitating and hedging before I could see Sotomayor, especially in a state where the SSM ban was adopted by initiative into the state’s Constitution.

          • I should probably note that I only left Sotomayor off the list because she also voted to reach the merits in Perry, and I can’t imagine that was because she wanted to uphold Prop 8. So I assume it’s a given that she would find SSM bans unconstitutional.

          • I thought full faith and credit was a default, where a state had to recognize arrangements from other states unless that state specifically forbade that arrangement ahead of time.

            I’m not a lawyer, so take that for what it’s worth.

          • Pierre, I tend to agree.

            But you wouldn’t believe the stuff that I think the Constitution allows for.

      • I live in Ohio, which passed a constitutional amendment prohibiting same sex marriage in 2004. I’m very interested in exactly the issue you raise, Michelle.

        I think we’re going to see a lot of complexity and confusion on these issues until same sex marriage is legal and recognized in all states.

  5. I am struck by the way yesterday’s VRA decision and today’s decisions reflect active government vs. passive; Congress’s reauthorization, essentially rubber stamping instead of updating revising VRA was grounds for dismissing it.

    But active government — NY’s SSM law, the unwillingness of CA officials to defend Prop 8 stand behind today’s decisions.

    It’s almost as if the SC’s are suggesting government should, you know, function; that functioning government is part of the legal landscape.

    /and it’s quite possible I’m deluded, too.

    • It’s almost as if the SC’s are suggesting government should, you know, function; that functioning government is part of the legal landscape.

      That’s exactly what I thought about VRA.

  6. Burt,

    Do the justices debate the cases amongst themselves? Or do they just hear arguments, vote, and then work on their write-ups?

    • They conference over each case, debate it, and then vote, with Roberts then assigning the lead opinion and lead dissenting opinion. The justices then decide which part of which opinion to join, if any, and may write their own separate concurrences or dissents. In the process, votes can sometimes change (this is not that common, but also not unheard of – it almost certainly happened with the PPACA case last year).

      • Is any record kept of their debates? Seems like that would be fascinating to have access to.

        • Officially, no. Practically speaking, there’s the Justices’ personal notes, but good luck getting those other than posthumously.

          • Yes, but those posthumous notes are well worth the read.

      • My understanding is that there’s a wrinkle here: if the Chief Justice is voting in the minority, then the majority opinion is assigned by the most senior Justice voting in the majority. But other than that, Mark is correct. These sessions are called “conferences” and they’re usually scheduled for Thursdays after oral arguments.

      • I am just nit-picking at you, but I would be shocked if any of the justices besides Scalia actually wrote their own opinions.

  7. Burt–great job on all of your Supreme Court write-ups! Thanks so much for doing them.

  8. I’m utterly delighted! Sounds like a pretty good outcome. Solid wins for SSM but nothing so deeply reaching as to energize the antideluvian rump.

    • One and a half good rulings after five or six bad ones. And all we can do is wait for the SOBs to die off.

      • And hope that Obama and not some winger Republican gets to nominate their successors.

  9. I don’t understand whether DOMA was voided entirely by this decision of only Section 3 where Federal law did not recognize SSM. The quote from the syllabus suggests the former, but the decision only talks about Section 3. Can someone help me on this?

    • Only section 3 was challenged. But as with yesterday’s Shelby County case and the Voting Rights Act, the Supremes cut the heart out of the statutory law, and what’s left over doesn’t even have enough strength to do more than lie there and quiver.

      • Well, Both Sides are pissed at them, so they must be doing something right!

        • That’s the way I call it.
          If One Side or The Other is a bit too happy, I get suspicious.

          Or, you might say that equalized tension is capable of producing a balance, whereas equalized slack consistently fails to do so.

          Or it could just be that I’m a grumpus.

      • Does section 2 (which denies FFC for SSM) matter, or would any Court decision that asserts FFC for marriage in general just disregard it?

        • I’m willing to say that, whatever their other differences, most of the Justices are inclined to say that they, and not Congress, get the last word on interpreting the FFC.

          • I’d say that, when it comes to deferring to the legislature, Scalia is of two minds.

  10. This just in from the Ninth Circuit:

    Received copy of Supreme Court opinion dated 06/26/2013. The judgment or mandate of this Court will not issue for at least twenty-five days pursuant to Rule 45. Should a petition for rehearing be filed timely, the judgment or mandate will be further stayed pending this Court’s action on the petition for rehearing.

    The “mandate” is the official order of the Ninth Circuit. In this case, the mandate would vacate the previous judgment and order the appeal dismissed. The appellants, who lost at the Supreme Court level, will have (I think, this is not the kind of law I normally practice although I wish it were) three weeks to file a petition for rehearing which would stay the mandate pending resolution of the petition for rehearing. I don’t have any idea what there is for either SCOTUS or the Ninth Circuit to re-hear, since SCOTUS just ruled that the appellants lack appellate standing altogether.

  11. Say what you will about the substantive ruling in Windsor (I for one agree with it), but the majority’s jurisdictional argument was shaky at best. Scalia is right, there is no case in controversy if both parties are asking for an affirmation of a lower court’s ruling. No case in controversy = no jurisdiction = case dismissed. Windsor is essentially an advisory opinion, which is outside the Court’s power to issue.

    • Not so. Scalia didn’t seriously address Kennedy’s prudential arguments.

      Keep in mind, the executive branch was still enforcing DOMA while not defending it. For the Court to refuse to deal with it would mean every District Court challenge to DOMA would result in a victory for the plaintiff, but would apply only to the plaintiff and not to any other future plaintiff. So the Federal Government would keep denying benefits, lose in court and give benefits to just that plaintiff, keep denying benefits and lose in court and give benefits to just that plaintiff, and keep denying benefits and lose in court and give benefits to just that plaintiff, repeate ad nauseum until the end of the world. That’s a perverse outcome, and since the Court really does create its own jurisdictional rules it has the authority to prevent those rules from creating perverse outcomes.

  12. re: Hollingsworth interesting….

    Scalia hates liberal-standing so this is interesting. IIRC Ginsberg made a public comment about fearing “blow back” if the Court made a broad ruling on Gay Marriage like Roe v. Wade produced blowback. She and Breyer and Kagan seemed to have taken a course that makes gay rights better but is not sweeping. I haven’t read the dissents yet. But based on DOMA, it would seem that Kennedy and Sotomayor were willing to give a full-forced voted for Gay Marriage.

  13. Keep your eyes open for prominent Republicans announcing that they’re getting a divorce.

  14. I have some concerns about the gay marriage cases, even though I’m happy with the outcome:

    1. Can a later gubernatorial administration in California decide it wants to defend the law and all of the sudden revive Prop 8?

    2. In states with civil unions, are those unions recognized for federal purposes?

    • 1. No. This law has been tested and found wanting. All appeals are exhausted. La soprana grassa ha cantata.

      2. We have no definitive answer on that, at least not from SCOTUS. FF&C may come in to play, but those are uncharted waters.

      • Burt,

        I heard on a news program last night (and after you had answered my questions) that potentially the prop 8 case might be contested and thereby limited to the specific district in which the ruling was made, so that in theory, prop 8 is invalid only in the are covered by that district and not throughout California, if these challenges succeed. I imagine such an outcome is not likely, but do you think it’s possible?

        • This strikes me as implausible.

          “District” could mean a lot of things, but it likely means the Northern District of California for the United States District Court, which includes sixteen counties mostly along the northern coast. But cases from the Northern District applying to California law are good statewide, unless the district you’re in has a contrary ruling, in which case the Ninth Circuit would like to hear about it.

  15. Was at any point the US Government actively arguing against BLAG or anyone else having standing (through for example, an amicus brief) whilst keeping Windsor’s money?

  16. While I am opposed to gay marriage, I have no problems with the DOMA ruling. Either the US has a full-faith-and-credit clause, or it doesn’t. Since it does, the feds had no business passing DOMA in the first place.

    Much like only Nixon could go to China, only Clinton could sign DOMA and end welfare as we knew it.

  17. Richard Posner is space awesome on the VRA decision:

    Section 3 of Article IV of the Constitution authorizes Congress to admit new states to the Union, as it has done many times, but says nothing about the terms on which they are to be admitted. Usually when new states are admitted it is on the same terms as the existing ones. But not always: Utah and several other western states were required as a condition of admission to outlaw polygamy—a novel condition. Not that any other state permitted polygamy. But other states, not having been subjected to such a condition when they were admitted, were free to permit polygamy without risk of being expelled from the Union.

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