Vin Testa of Washington waves a rainbow flag in support of gay rights outside the Supreme Court in Washington, Tuesday, June 25, 2013. (J. Scott Applewhite/AP)
My latest for The Week, on the Supremes' strange coalitions in Hollingsworth v. Perry and what it all means beyond gay marriage.
The Atlantic's Andrew Cohen has a great writeup on the subject, too, as do Mother Jones' Kevin Drum, Jordan Fraade at PolicyMic, and Governing's Dylan Scott.
TPM's Brian Beutler also has an interesting scoop on Chief Justice John Roberts' cousin, who's getting same-sex married soon, but this passage in particular caught my eye:
Podrasky says she’s just as surprised that Roberts voted to uphold DOMA, as she is that he sided with the majority in throwing out the Prop 8 case on procedural grounds, which had the effect of making gay marriage legal again in California. Roberts’ split means that despite believing the federal government should continue not to recognize same-sex marriages, he helped clear the one obstacle standing in the way of his cousin and her fiancee.
Just want to point out that if Roberts voted to grant standing in the case, he would've formed a majority with Kennedy, Thomas, Alito, and Sotomayor, paving the way for the court to decide on the case's actual merits.
And how might that have turned out? Cohen at The Atlantic writes:
…the makeup of the dissent in Perry is telling. It may tell other people other things but it tells me that Justices Kennedy—ever true to his roots as a supporter of gay rights—and Sonia Sotomayor were willing to rule on the merits of Proposition 8 in a way that would more broadly recognize same-sex marriage rights, at least in California. And it tells me, on the contrary, that Justices Clarence Thomas and Samuel Alito, win or lose, were spoiling for the opportunity to endorse Proposition 8 as a lawful expression of the public's disdain (at least in 2008) for such marriages. Usually, when the Court punts like it did here, it punts without a 5-4 ruling.
Indeed, it seems likely to me that if Roberts had voted to grant standing, the Court's decision on the merits would have looked a lot like their ruling in the DOMA case, with Justices Kennedy, Ginsburg, Breyer, Sotomayor, and Kagan knocking down same-sex marriage bans in California and, possibly, the entire Ninth Circuit.