Yesterday’s coverage of the Court again focused largely on last week’s arguments in Hollingsworth v. Perry and United States v. Windsor, the challenges to California’s Proposition 8 and the federal Defense of Marriage Act. In her Opinionator column for The New York Times, Linda Greenhouse discusses the federalism argument against DOMA, concluding that “striking down DOMA on federalism grounds is a truly bad idea, and the campaign for marriage equality would be worse off for it.” Reason‘s Jacob Sullum takes the opposite view, arguing that regardless of whether DOMA violates equal protection, it should be struck down because “[f]ar from protecting state autonomy, Section 3 of DOMA intrudes on it.” Writing for the Huffington Post, H. Lee Sarokin criticizes Justice Scalia’s question, during the Perry oral argument, regarding when the Constitution first required same-sex marriage, arguing that “[a]ccording to its own history, something becomes unconstitutional when the Supreme Court says that it is.” Justin Snow of Metro Weekly looks back at the history of the marriage cases and considers the shifts in public opinion toward supporting marriage equality.
Other coverage considered the argument that finding an equal protection right to same-sex marriage in all fifty states might produce a backlash analogous to Roe v. Wade. The editorial board of The New York Times criticizes comments from last year by Justice Ginsburg on Roe, in which she argued that the 1973 decision “moved too far, too fast,” arguing that her comments “misread the legal and political landscape at the time of the Roe decision . . . [and] could lead the Supreme Court to shy from doing as it should — enforcing equal protection by declaring same-sex marriage a constitutionally protected right in every state.” Jeremy Leaming of ACSblog weighs in with further details from Linda Greenhouse and Reva Siegel’s book on public opinion and Roe, Before Roe v. Wade.
Other commentators discussed upcoming cases. In his Verdict column for Justia, Michael Dorf outlines the issues raised by Schuette v. Coalition to Defend Affirmative Action, a challenge to an amendment to the Michigan constitution that prohibits (among other things) affirmative action in public universities. And in a follow-up post at Dorf on Law, he discusses the “connection between race-based civil rights cases and the [same-sex marriage] cases.”
Brian Lawson of The Huntsville Times reports on the state of Alabama’s cert. petition seeking review of an Eleventh Circuit decision enjoining a part of the state’s immigration law that criminalizes harboring and transporting unauthorized immigrants, or inducing illegal immigration. (Thanks to Howard Bashman for the link.)
- Danica Coto of The Associated Press reports on Justice Sotomayor’s visit to Puerto Rico to discuss her recent memoir.