Si modo
Diamond Member
Thank gawd justices are appointed so they can concentrate on the Constitution and not politics.Two different cases here.
United States v. Windsor - this challenged part of DOMA, the part that says gay couples can't get Federal benefits. What it doesn't challenge, apparently, is the bigger issue of whether states could refuse to recognize other state's gay marriage licenses. In any event, DOMA was always unconstitutional, it was passed by Congress to get the issue off the table when it seemed Hawaii might legalize gay marriage. Because it took another decade for a state to actually legalize same-sex marriage, it's taken a while for for someone to say the Emperor has no clothes. Striking down DOMA would effectively make gay marriage legal for the whole country, because the nine states that allow it would issue licenses to people the other states and the Feds would have to recognize.
Hollingsworth v. Perry is the more troubling one to me, because as I've said, I'm never really comfortable with the courts legislating from the bench, using their one-stop shop for doing so, the 14th Amendment. Judge Walker clearly had a conflict of interest, when he crafted a ruling that was geared towards previous rulings made by Justice Kennedy. Even the 9th Circuit reeled him back a bit, and frankly, when you get reeled back by the "9th Circus", you've probably gone too far.
The tactical layout is obvious. Sotomoyor, Kagen, Brier and Ginsburg will probably vote to uphold the lower court decisions to some degree, and Alito, Scalia and Thomas will vote to overturn them. That leaves Justice Roberts (whom I would have pegged as another knuckle dragger until he saved ObamaCare) and Kennedy (who penned Lawrence and Romer, decisions that expanded gay rights.)
Again, I would rather have this worked out in Congress and the legislatures than the courts.
Both Kennedy and Roberts have their legacy to consider. Roberts is young enough to not want to be on the wrong side of this...