g********d
发帖数: 4174 | 1 http://www.guardian.co.uk/commentisfree/2012/jun/01/how-will-do
How will Doma fare in front of the US supreme court?
Despite the Roberts court's conservative lean, there is reason to hope it
will rule the Defense of Marriage Act unconstitutional.
On 31 May, a three-judge panel of the first circuit court of appeals held a
key provision of the Defense of Marriage Act (Doma) unconstitutional. It is
nearly certain, however, that the case will be headed to the supreme court,
and because the decision was stayed pending appeal, it will not even apply
in the New England states covered by the first circuit.
So, the key question is: what will the supreme court will do when it hears
the case?
The first circuit opinion, written by widely respected Republican appointee
Michael Boudin, had a decidedly conservative cast that makes surviving a
supreme court appeal more likely. We can assess the potential votes in
descending order of certainty.
The Democratic appointees
Every member of the court's relatively liberal wing – represented by the
Clinton appointees Stephen Breyer and Ruth Bader Ginsburg, and the Obama
appointees Sonia Sotomayor and Elena Kagan – is virtually certain to
support the first circuit opinion ruling Doma unconstitutional. Breyer and
Ginsburg have voted to accept gay and lesbian rights claims during the much
less favorable political circumstances that led to Doma's passage; they will
not waver.
Sotomayor and Kagan do not have a track record on gay and lesbian rights per
se, but as the Obama administration's refusal to defend the act's
constitutionality indicates, there is a near-consensus among mainstream
liberals that Doma does not pass constitutional muster. The litigants
challenging Doma start with four votes in the bank, and will need only one
of the court's five Republican nominees to prevail.
The Republican no-hopers
These votes are exceedingly unlikely, however, to come from Justices Antonin
Scalia or Samuel Alito. While Scalia is not a completely reliable vote for
Republican interests, his attitude towards gay and lesbian rights can be
seen in his dissents, liberally salted with rightwing antigay buzzwords, in
Romer v Evans and Lawrence v Texas. He can safely be written off by
opponents of Doma's constitutionality. Justice Alito has yet to vote in a
major gay and lesbian rights case but is the court's most consistent
Republican party-liner, and is similarly unlikely to surprise.
The great Republican hope
As usual, the constitutionality of Doma is likely to be determined by the
court's most common median vote, the Reagan appointee Anthony Kennedy. While
this is more likely than not to be bad news for progressive constitutional
arguments, here his vote to strike down Doma seems quite likely. Kennedy
wrote the majority decisions in the landmark cases that provoked the angry
dissents from Scalia. And while those cases required accepting
constitutional rationales more associated with liberals, this case also
presents a federal intrusion into policy territory typically reserved for
states, which makes Kennedy even more likely to be skeptical of Doma.
The Republican wild cards
There are two other Republican appointees whose votes are much less certain.
Justice Clarence Thomas is perhaps the most reactionary member of the court
all things considered, but his idiosyncrasies and attachment to grand legal
theories make him less predictable, on some issues, than Justice Alito.
Thomas is by far the court's strongest skeptic of federal power, which may
cause him to see some appeal in Boudin's argument that Doma "does burden the
choice of states like Massachusetts to regulate the rules and incidents of
marriage". He also distanced himself from some of Justice Scalia's culture-
war rhetoric in his own Lawrence dissent, calling the Texas ban on same-sex
sexual relations "uncommonly silly". So whether he opposes same-sex marriage
enough to override his federalist principles is unclear.
Chief Justice John Roberts's positions on federal power are less clear and
unlikely to be as extreme as Thomas's, but he has one reason to join a
majority opinion striking down Doma: the chief justice only controls the
opinion assignment if he is in the majority. Roberts (like Thomas) is
enormously unlikely to be a decisive vote to strike down Doma, but in the
likely event that Kennedy votes to join the liberals, he may join the
majority and justify the outcome with a more narrow opinion than one
assigned (or written) by Ruth Bader Ginsburg would look like.
In conclusion
Overall, the picture is quite promising for Doma's opponents – especially
compared to what one might normally expect of the Roberts court. It is hard
to see five votes to uphold Doma given that both major arguments against the
act have proven appeal to Justice Kennedy, and the fact that as many as
seven votes might reasonably be in play for Doma's opponents.
All in all, it looks like Thursday's ruling could be next year's gay and
lesbian rights landmark at the supreme court. | t*******e
发帖数: 2113 | 2 呵呵，比咱們樂觀啊，把Roberts也算進來。
作為Chief Justice，他確實該表率一下了，
別老站在歷史洪流的對岸。
a
is
,
【在 g********d 的大作中提到】
: http://www.guardian.co.uk/commentisfree/2012/jun/01/how-will-do
: How will Doma fare in front of the US supreme court?
: Despite the Roberts court's conservative lean, there is reason to hope it
: will rule the Defense of Marriage Act unconstitutional.
: On 31 May, a three-judge panel of the first circuit court of appeals held a
: key provision of the Defense of Marriage Act (Doma) unconstitutional. It is
: nearly certain, however, that the case will be headed to the supreme court,
: and because the decision was stayed pending appeal, it will not even apply
: in the New England states covered by the first circuit.
: So, the key question is: what will the supreme court will do when it hears
| m******1
发帖数: 19713 | 3 我觉得最差也会是7：2
【在 t*******e 的大作中提到】
: 呵呵，比咱們樂觀啊，把Roberts也算進來。
: 作為Chief Justice，他確實該表率一下了，
: 別老站在歷史洪流的對岸。
:
: a
: is
: ,
| g********d
发帖数: 4174 | 4 dreaming?
【在 m******1 的大作中提到】
: 我觉得最差也会是7：2
| t*******e
发帖数: 2113 | 5
胃口真心有點大啊。。。。
其實scalia寫東西挺好看，他能說很漂亮的話，就是觀點太落後。
要是這次能把他掰過來。。。。。。
哈哈哈。。。
【在 m******1 的大作中提到】
: 我觉得最差也会是7：2
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