Cognitive Dissonance

by Stephen H. Miller on October 18, 2012

Second Circuit Court of Appeals Chief Judge Dennis Jacobs, a long-time favorite of the conservative Federalist Society, strikes down section 3 of the Defense of Marriage Act as unconstitutional.

He’s yet another conservative, Republican appointed judge striking a blow for gay rights and legal equality.

The next round will be in the U.S. Supreme Court, where Reagan-appointee Justice Anthony Kennedy is likely to provide the majority vote that ensures the federal government doesn’t treat same-sex couples as second-class citizens.

{ 21 comments }

Tom Scharbach October 18, 2012 at 9:00 pm

Second Circuit Court of Appeals Chief Judge Dennis Jacobs, a long-time favorite of the conservative Federalist Society, strikes down section 3 of the Defense of Marriage Act as unconstitutional. He’s yet another conservative, Republican appointed judge striking a blow for gay rights and legal equality.

Many of the judges who have joined in opinions mandating marriage equality have been appointed by pre-”original intent” Republicans, going back to the 2004 Massachusetts decisions. Judges are not politicians, carefully crafting decisions to appease the Republican base.

The next round will be in the U.S. Supreme Court, where Reagan-appointee Justice Anthony Kennedy is likely to provide the majority vote that ensures the federal government doesn’t treat same-sex couples as second-class citizens.

Section 3 of DOMA is not so much about marriage equality, though, as it is about the federal nature of our Constitutional system. Section 3 of DOMA encroaches upon an area of law reserved to the states for the entire history of our county.

I suppose that Justice Kennedy may well provide the vote needed for a 5-4 majority, as Stephen predicts, and if so, that will be a sad day. Given the nature of the case, Justices Roberts, Alito, Scalia and Thomas should join in a decision overturning Section 3 of DOMA. The decision should be 9-0, not 5-4.

The fact that Stephen, a committed apologist for the “electing Romney-Ryan won’t harm gays and lesbians” school of thinking, expects Justices Roberts, Alito, Scalia and Thomas to vote for the constitutionality of federalizing marriage is telling.

Be wary, pro-equality conservatives. Romney-Ryan are very likely to shift the balance of the Supreme Court to set us back twenty years.

Mark October 18, 2012 at 9:38 pm

Yes–Dennis Jacobs, nominated by the same President who was so careful to screen his judicial nominees for ideological purity that he nominated that radical right-winger, David Souter.

Given Romney’s lead in the Gallup Poll, it looks like Stephen is going to get his wish. I wonder if, four years from now, he’ll be back here telling us how many pro-gay rights judges the Pres. Romney who eagerly signed NOM’s marriage has nominated.

another steve October 19, 2012 at 2:51 pm

Wrong – David Souter was nominated by George H.W. Bush, not Ronald Reagan. Bush, you may recall, tried to distinguish himself from Reagan by being a “kinder, gentler” and less ideological conservative.

Houndentenor October 19, 2012 at 5:44 pm

Souter didn’t have much of a paper trail. He was believed to be conservative at the time. It certainly wasn’t Bush Sr.’s intention to appoint a moderate to the court. I believe he was the last non-Catholic appointed to SCOTUS by a Republican.

Mark October 19, 2012 at 8:26 pm

Correct–both Dennis Jacobs and David Souter were nominated by George HW Bush. Where did I say either was nominated by Ronald Reagan?

Jorge October 18, 2012 at 11:41 pm

I always forget which part of DOMA is being attacked in the courts.

You know gay rights has been totally absent from the general election debates for the first time I remember. It doesn’t bother me because there are other fronts.

But we’ll be back just in time for President Romney to declare war on activist judges in his State of the Union speech.

Tom Scharbach October 19, 2012 at 7:45 am

I always forget which part of DOMA is being attacked in the courts.

Section 3 (federal refusal to recognize valid state marriages for federal purposes) is the subject of the court cases. Section 3 is federalization of a power traditionally reserved to the states.

Section 2 (allows a state to refuse to recognize valid marriages from other states if against the public policy of the state) is nothing more than a federal restatement of existing constitutional law. States now have that power under cases governing comity. Section 2 is superfluous, but not unconstitutional.

But we’ll be back just in time for President Romney to declare war on activist judges in his State of the Union speech.

Yeah, well, “activist”, like “beauty”, is in the mind of the beholder. To my mind, the “activists” are the judges who are hell-bent on “original intent”, willing to wipe out longstanding, established precedent for the sake of ideology.

Houndentenor October 19, 2012 at 1:20 am

What do you think our chances would be with SCOTUS if McCain, not Obama, had chosen the last two Justices?

Tom Scharbach October 19, 2012 at 8:10 am

Senator McCain wasn’t tied to the hard-right social conservative wing of the Republican Party, nor was he beholden to it, nor, as far as I can tell, afraid of it.

I would not have been surprised to see him appoint Justices like Souter, Doug Ginsburg (a Reagan appointee who withdrew), Kennedy, Powell and other non-ideologues appointed by pre-”original intent” Republicans.

So it is hard to say what would have happened. Senator McCain might have been like Presidents Reagan and Bush I, appointing judicial conservatives who weren’t ideologues.

We do know what happened under President Obama — two Justices appointed who are not “original intent” ideologues. And we can safely predict, based on his track record, what he will do when Justices step down or die.

And, while we can’t be certain what Governor Romney will do, he’s pledged to appoint “original intent” Justices, and he’s named Justice Scalia as his model for appointment. He hasn’t much of a track record of consistency in his pledges, but I think that we would be prudent to take him at his word, rather than adopting the “if wishes were horses” stance that Stephen seems so intent upon.

Gus October 19, 2012 at 5:24 am

A Federalist Society judge will almost always rule in favor of states rights. The individual state determine what marriage is for their own state not the Fed.

Doug October 19, 2012 at 11:21 am

Not so fast, Gus, even where individual state allow gay marriage, it’s the Fed that do not recognize gay marriage for Federal Income Tax purposes, Social Security, Medicare etc.

Gus October 19, 2012 at 11:42 am

If the Federalist Society is to be consitant, the states say who is married then the Fed must treat them as married is how I see a states rights argument.

Doug October 19, 2012 at 1:28 pm

The reality is that as long as the GOP controls congress there will be no Federal recognition of gay marriage no matter what the states do.

Houndentenor October 19, 2012 at 5:46 pm

It depends on the issue. State’s rights is the issue that shows both right and left to be hypocrites.

Don October 19, 2012 at 3:58 pm

As a founding faculty advisor of The Federalist Society at the University of Chicago, I believe Justice Antonin Scalia would disagree with you regarding states rights. I could be wrong, and I’m sure he will be tortured in violating a principle he holds so dear, but I just can’t see him saying “okay, gay marriage all the way.” Because states have the right to violate God’s natural law or whatever else he may believe.

I think Andrew Sullivan has been equally gullible in believing that principled thinking guides people’s political persuasions. Although you are winning a logical argument, we are not having a logical argument. Yours is the political equivalent of bringing a knife to a gun fight. (I’m only speaking from experience, here. Just tired of trying to convince those who do not rely on common sense or logic)

Tom Scharbach October 19, 2012 at 5:28 pm

As a founding faculty advisor of The Federalist Society at the University of Chicago, I believe Justice Antonin Scalia would disagree with you regarding states rights. I could be wrong, and I’m sure he will be tortured in violating a principle he holds so dear, but I just can’t see him saying “okay, gay marriage all the way.” Because states have the right to violate God’s natural law or whatever else he may believe.

I will not be surprised if Justice Scalia joins in an opinion declaring Section 3 of DOMA unconstitutional. I don’t think that it is likely, but I won’t fall out of my chair if it happens, either.

I think that Justice Scalia’s federalist principles might overcome his “original intent” ideology (as he put in his Romer dissent, “Since the Constitution of the United States says nothing about this subject [homosexuality], it is left to be resolved by normal democratic means, including the democratic adoption of provisions in state constitutions.“) in the Section 3 cases, because the Section 3 cases do not require a finding that marriage equality is constitutionally protected.

I agree with you that his decision-marking process is likely to be difficult, because two of the principles he holds dear — federalism and “original intent” — are, at least arguably, in conflict.

In any event, we’ll know it a year.

Carl October 20, 2012 at 11:41 pm

If Scalia uses the “original intent” to say gays should be arrested for sodomy, then won’t he also use it to rule against same-sex marriage?

Tom Scharbach October 21, 2012 at 8:04 am

If Scalia uses the “original intent” to say gays should be arrested for sodomy, then won’t he also use it to rule against same-sex marriage?

Of course he will. Scalia will always be a vote against us on the mertis. Read his dissent in Lawrence. The dissent is lengthy, and his thinking is clearly laid out.

The only reason that he might — “might”, not “is likely to” — join in an opinion that Section 3 of DOMA is unconstitutional is that the Section 3 cases, most particularly the case brought by the Commonwealth of Massachusetts, do not require the Court to issue an opinion about equality. Scalia could join in a majority opinion on limited grounds, that is, that Section 3 of DOMA federalizes marriage, encroaching on state’s rights.

Doug October 21, 2012 at 1:10 am

Romney reaffirms his support for a constitutional amendment defining marriage as one man and one women. Guess it won’t matter who he appoints to the Supreme Court. How’s that workin for ya Stephen?

Tom Scharbach October 21, 2012 at 8:21 am

Romney reaffirms his support for a constitutional amendment defining marriage as one man and one women. Guess it won’t matter who he appoints to the Supreme Court.

It matters.

The FMA is almost certain to fail, either because it cannot get the necessary backing to be proposed to the states or because it cannot get the necessary backing from the states. It isn’t impossible that the Republican Party will pass the FMA and federalize marriage once and for all, but it isn’t at all likely.

But the next President is going to appoint two, and possibly three, Supreme Court Justices. Justices typically serve about 15-20 years before retirement or death. If Romney-Ryan are elected and appoint two or three “original intent” Justices, as expected, the balance on the Court will be tipped against equality through 2025-2030, and perhaps longer.

Justice Ginsberg is 79, Scalia and Kennedy 76, and Breyer 74. Roberts, Alito, Kagan, Sotomeyor and Thomas are all in their 50′s or 60′s. You do the math.

Jorge October 21, 2012 at 7:36 pm

People have been talking about Stevens’ age and Ginsburg’s health problems since the end of the Clinton administration. One’s still with us, the other took his sweet time leaving. I don’t have any great expectations.

Comments on this entry are closed.

Previous post:

Next post: