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This blog is the work of an educated civilian, not of an expert in the fields discussed.

Thursday, June 27, 2013

SCOTUS Term Ends

Update: Surprisingly,  the stay was lifted on Friday and same sex marriages (including of the lead plaintiffs) started, though an emergency request was later made to Justice Kennedy to stop them.  [Rejected.] Justice Alito also held that the Indian adoption case should go into effect next week.

A few more words about the same sex marriage cases. I again do not find criticism to Kennedy's majority opinion too convincing, especially the idea that it is so very hard to determine what it says. As to the novelty of same sex marriage, there are preludes, and same sex couples lived as married couples already in this nation clearly at least for decades. State sanctioning these unions would be the cherry on the existing pie. And, yes, it is a lot clearer now than in 1996 that it is unconstitutional though DOMA would be problematic even if a state could criminalize sodomy. If it does not, why shouldn't the federal government recognize the marriage?

The division in the two cases regarding standing is also not as confusing as one thinks, since really only three justices split (Breyer and Kagan plus Thomas), Alito particularly for standing in both. It is sort of surprising to me given the orals that Kennedy and Sotomayor wanted to take Prop 8.  But, there are reasons, including pragmatic (and B/K are the ones who joined the Medicaid portion of Sebelius, after all) for the split. Thomas' federalism views particularly would appreciate Kennedy's dissent.  Again, I think the Dellinger approach reasonable, if problematic

Moving on, the USSC did a few things today of some note. It granted a couple cases and sent a notable abortion law back to the state court to clarify the reach of state law as to two drugs used for abortions. There were a few opinions regarding various orders, including Justice Thomas wishing to take a case to re-examine an old case that held a federal law can be applied to "deny military personnel the ability to recover for injuries."  Right at the top ... hey, it's Wendy Davis!  A ruling from Texas (which she argued was now moot) was sent back per Shelby. Note the current Twitter hero (among other things!) enabled to block a supermajority in Texas pursuant to a lawsuit under VRA that tossed out a redistricting plan that would have made her winning the seat that much harder. 

As discussed here, today's orders also avoided further involvement in the SSM debate, including rejecting other DOMA rulings (not just sending them back, which leaves some lack of clarity as to scrutiny and federalism questions). A same sex benefits win in Nevada also was rejected, so the breadth of state requirements in this area is still developing.  This is as expected -- the law takes time to develop and the road here involves multiple questions, not just the final question of SSM. As it should be.

And, thus the term ends, though not to worry -- there might be emergency actions and at least three summer order lists