I’m going to liveblog some reactions to today’s expected marriage rulings, below the line. To see more recent comments, refresh (it won’t auto-refresh, unlike the liveblogs at places like SCOTUSBlog).
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Phenomenal! Cato Institute went 15 for 3 at the Supreme Court this year.
Flashback: Windsor decision upheld today was written by Second Circuit’s Dennis Jacobs, leading conservative and a favorite judge of the Federalist Society (and of mine). And earlier, from my colleague David Boaz, a post on Judge Vaughn Walker, who struck down Prop 8 and who like Jacobs has faced vitriol at various points from ostensibly progressive quarters.
Don’t underestimate Sen. Rand Paul (R-Ky.)
AutoCorrect keeps trying to correct “legalistic argle-bargle” to “argyle-barf”
Just minutes after it was issued, the Windsor decision made a difference for one couple:
At 10:30 a.m. EDT this morning in a New York Immigration Court, attorneys from our law firm (Masliah Soloway) requested and were granted a continuance in removal (deportation) proceedings for a Colombian gay man married to an American citizen for whom we had filed a marriage-based green card petition last year. A copy of the 77-page Supreme Court decision in United States v. Windsor was delivered to the court by our summer intern, Gabe, who ran five blocks and made it in time for the decision to be submitted to the Immigration Judge and to serve a copy on the Immigration & Customs Enforcement Assistant Chief Counsel. DOMA is DEAD and it had its first impact on a binational couple within 30 minutes of the Supreme Court ruling.
Kennedy’s majority opinion in Windsor cites the “federalism brief” mentioned below, but disentangling the federalism strands from the “equal liberty” strands is likely to keep scholars busy for a long while.
I’ll be on KFMB San Diego at around 9:20 a.m. PDT to discuss today’s marriage rulings, and WBAL Baltimore at around 2:35 p.m. EDT (audio link).
In re Burrus (1890), key cite on domestic relations as state-law domain, cited in both Adoptive Couple yesterday and Windsor today. No relation to my Cato colleague Trevor Burrus, that he knows of.
GOP platforms for years have been decrying the unfairness of the death tax, but it took Edith Windsor to do something about it.
Here’s my colleague Ilya Shapiro’s reaction post at Cato at Liberty: “Equal Liberty Carries Day at SCOTUS”
From Josh Blackman, “The Top 10 Most Liberty-Oriented Kennedy Quotes in Windsor”
Both Perry and Windsor remind us that standing issues are regularly 1) orthogonal to underlying substance; 2) important for own sake.
Per Kevin Russell at SCOTUSBlog, “The Walter Dellinger amicus brief, written by Irv Gornstein, is instrumental in the Court’s standing opinion in Perry.”
As an aside on DOMA, the all-round coolness of Edith Windsor as a personality certainly didn’t hurt her side. Here’s a recent NY Times interview in which she certainly wasn’t toeing anyone’s political line. There’s a fan site here.
Perry finds 5-4 that there isn’t standing. Seldom-seen-together quartet in dissent: Kennedy, Thomas, Alito, Sotomayor. Kennedy did seem quite pro-standing during oral argument.
The Windsor dissent with the extensive rehashing of current literature about the same-sex marriage debate (including cites to Andrew Sullivan, Jonathan Rauch, Maggie Gallagher, and the Princeton theocons) is Alito’s with Thomas partially joining. Scalia goes off on a different tangent. (I should mention that early in my career I worked for Justice Scalia back when he was editor of Regulation magazine, now at Cato, and no, I have no reason to believe that has influenced him.)
Amy Howe at SCOTUSBlog says Kennedy opinion invokes “respect” as concept, which is “vintage Kennedy.”
Per @RyanGKoopmans, Roberts says in dissent that the court holds there is no jurisdiction to decide Perry.
Windsor decision here. Unified majority, which is important. Three different dissents: Roberts, Scalia with Thomas joining and Roberts part-joining, and Alito with Thomas part-joining. The disunity is on the pro-DOMA side.
Per SCOTUSBlog, Kennedy cites federalism, specifies state-lawful marriages. That’s a hint there won’t be 50-state #ssm per Perry.
First case is DOMA. Struck down as unconstitutional. Kennedy joins four liberals in majority.
The Cato Institute, where I’m a senior fellow, filed amicus briefs in both marriage cases, Perry and Windsor, jointly with the Constitutional Accountability Center, usually its opposite numbers in Supreme Court litigation. Despite disagreements on many other issues, Cato and the progressive legal thinkers at CAC agreed that the tradition of constitutionally protected liberty extends to freedom to marry. Links: Windsor, Perry. In addition, numerous legal scholars with connections to Cato, including Jonathan Adler, Randy Barnett, Dale Carpenter, and Ilya Somin, signed a separate “federalism brief” arguing for the striking down of DOMA on grounds of improper intrusion into state power.