Gay marriage

House of Cards of Windsor

Featured image Justice Scalia registered a stinging dissent in the Windsor case, in which the Supreme Court invalidated the Defense of Marriage Act on grounds that–to be polite–are opaque. My old friend Larry Tribe, now the Left’s favorite constitutional scholar, took Scalia to task. And George Mason’s Michael Greve unloaded on Tribe with both barrels. You won’t see better pyrotechnics until the day after tomorrow. You really should read it all, but »

Why the unusual 5-4 split in the Prop 8 case?

Featured image The Supreme Court’s decision in Perry that the parties defending the constitutionality of Prop 8 lack standing did not conform to the usual pattern in cases decided 5-4. Usually in such cases, we see the Court’s four liberal Justices — Ginsburg, Breyer, Sotomayor, and Kagan — voting one way while either four or five of the remaining Justices vote the other. Typically, if only four of these Justices vote together, »

What Does It All Mean?

Featured image I’m not sure I can recall a 48-hour period that has sowed more confusion that the 48 hours just past.  Sandy Levinson, a straight-shooting liberal, says the Court’s gay marriage decisions are judicial camels (a horse designed by committee).  I guess I’ll have to wade through the Court’s two opinions, but I doubt that will help very much. Once again, Justice Kennedy has marred what might be a defensible holding »

Justice Alito denounces our “arrogant legal culture”

Featured image Justice Alito’s dissent in the DOMA case contains an instant-classic footnote (number 7). I reproduce it below in its entirety, hoping that you will read the whole thing: The degree to which this question [the traditional view of marriage vs. the consent-based view] is intractable to typical judicial processes of decisionmaking was highlighted by the trial in Hollingsworth v. Perry. In that case, the trial judge, after receiving testimony from »

The Supreme Court does marriage [with updates]

Featured image The Court has begun the festivities by holding that the Defense of Marriage Act is unconstitutional. The decision was 5-4, with Justice Kennedy writing the opinion. Chief Justice Roberts wrote a dissent, as did Justice Scalia. Scalia says the ruling springs from a “diseased root: an exalted notion of the role of this court in American democratic society.” That’s it exactly. I made this point here, among other places. I’m »

This day in Supreme Court essentialism

Featured image Next month, the U.S Supreme Court, in it wisdom, may pass judgment on the age-old definition of marriage. Until very recently, marriage has universally been deemed to require an opposite sex component, but the Court may overturn this definition. The fact that the Supreme Court is even considering such a change represents, for me, the reductio ad absurdum of American constitutional law jurisprudence. The fact that, until very recently, marriage »

A New Wine for Our Times

Featured image As I mentioned here once before, the fad in California wines for more than a decade now has been the heavy emphasis on what I call MSG wines.  No, that’s not a designation of something to order in your favorite Chinese restaurant; rather, it refers to Rhone-style blends featuring Mourvedre-Syrah-Grenache.   Many of these blends are knockouts, and adjusting the blend allows winemakers to bob and weave depending on the weather »

A French “Oui” for Gay Marriage? Not So Fast

Featured image It’s an axiom of American cosmopolitanism that Europe is far advanced over the United States in terms of social democracy, tolerance, openness, and so forth, and at the pinnacle of European sophistication stands France.  The French have it over us on everything from existential filmmaking, wine and cheese, anti-semitism, and embrace of gay . . .  —wait, what’s this?  A major populist uprising against gay marriage in France, with hundreds »

CRB: Gay rites

Featured image We conclude our preview of the new issue of the Claremont Review of Books this morning with a humdinger. Thanks to our friends at the CRB for the privilege of previewing the issue for Power Line readers. Please think about subscribing here for the ridiculously low price of $19.95 and getting access to the whole shooting match online immediately in addition to home delivery of the hard copy at some »

Same-sex marriage is not the last frontier

Featured image Peter Wehner provides a good analysis of why public opinion has shifted so dramatically on same-sex marriage. This passage caught my eye: “once many Americans believed that the gay movement was de-radicalized and domesticated–much of the opposition to gay marriage began to dissipate.” Pete is right to attribute the shift in opinion in part to the perception that the gay movement is de-radicalized. He is also wise to speak of »

The Supreme Court is unlikely to uphold DOMA

Featured image Having listened on C-SPAN to the oral argument in the DOMA case, I believe the Supreme Court will hold DOMA unconstitutional if it reaches the merits. Presumably, the Court’s four liberal Justices would reach that conclusion. And Justice Kennedy seems ready to join them. Kennedy’s questioning of Paul Clement, who was defending DOMA on behalf of the House leadership, demonstrated considerable concern that DOMA constitutes an unwarranted intrusion by the »

Gay Marriage: The Libertarian Solution

Featured image The incomparable Iowahawk offers his solution to the gay marriage controversy over at  Get the government out of the marriage business entirely, and devolve it all to a matter of contract.  This would essentially “privatize” marriage in ways that gays might not like.  Let Iowahawk explain the nub of it: The solution? Maybe it’s time for government to get out of the whole marriage business altogether. Or at least »

The Supreme Court does marriage — episode 2

Featured image Today, the Supreme Court hears oral argument in U.S. v. Windsor. The case presents the question of whether the Federal Defense of Marriage Act (DOMA) is constitutional. The U.S. government argues that DOMA, enacted by Congress with broad support and signed into law by President Clinton, is unconstitutional. The case also presents issues of jurisdiction and standing. Specifically, the Court is called to decide whether the Obama administration’s unwillingness to »

The politics of same-sex marriage constitutional adjudication

Featured image Elahe Izadi at the National Journal suggests that a Supreme Court ruling that the Constitution confers the right to same-sex marriage would help the Republican Party. I agree. Public sentiment seems to be moving rapidly in favor of requiring the state to recognize same-sex marriages. This leaves Democratic candidates increasingly free to “come out of the closet” on this issue and embrace the emerging view. On the other hand, Republican »

The Prop 8 argument — a different take

Featured image The transcript of the oral argument in the Prop 8 case is now available. So is the audio. I haven’t reviewed either yet. Ed Whelan has. His review finds him “much more optimistic than some commentators that the Court will find that Prop 8 proponents have standing and will vote to uphold Prop 8.” »

Report: The Supreme Court will probably duck the merits of the Prop 8 case

Featured image Tom Goldstein, as shrewd an observer of the Supreme Court as anyone I’m aware of, believes that the Court “probably will not have the five votes necessary to get to any result at all, and almost certainly will not have five votes to decide the merits of whether Proposition 8 is constitutional.” The Court could avoid reaching the merits by deciding that the defenders of Prop 8 lack standing to »

The reductio ad absurdum of American constitutional jurisprudence

Featured image Jim Palmer once said of Earl Weaver, after the manager had offered the Hall of Fame pitcher a tip, “All Weaver knows about pitching is he couldn’t hit it.” As I write this, the Supreme Court of the United States is preparing to hear oral argument in a case where the core question is the rationality/utility of the age-old definition of marriage. I’m tempted to say of some of the »