The shape of things to come

TPM's Josh Marshall sees harbingers in two court decisions of late:

Both judges, perhaps with an element of trolling or humor, cited Justice Scalia's furious dissentin United States v Windsor, in which he claimed that the Court's decision to overturn DOMA would lead logically and inevitably to overturning every state gay marriage ban in the country. 

Now, this might all be written off as the work of two federal trial judges. But the tell is in the response of the 10th Circuit, one of the country's more conservative. When Utah appealed to the 10th Circuit to block further gay marriages until its appeal could be heard on the merits, the judges said no. Because the two standards for such a denial are 'irreparable harm' and likelihood to prevail on appeal, the appellate judges - one Bush appointee, one Obama appointee - seemed to be hinting that Utah is likelihood to lose. 

In other words, the inexorable Scalia logic appears clear to them too. 

Now there are some conceivable federalism grounds where you could maybe eke out a reason why the Constitution bars the federal government from doing something but allows it to states. But it's a big stretch and probably an impossible one in a country where opposition to same sex marriage is declining rapidly every year. 

There's also the real world reality that the 10th Circuit denial of a stay seems certain to guarantee a pretty substantial population of same sex couples in Utah by the time the appellate Court actually comes to a decision. 

In this sense - and not to be overly dramatic - it's almost reminiscent of the Fall of the Berlin Wall - when actions on the ground, literally on the ground, swept a lot of details and technicalities before it and presented authorities with faits accompli, which they were likely to accept eventually, much more rapidly than they would have preferred. 

So yes, this will percolate a bit, as they say. Decisions will come up through the individual Circuits. In pretty short order, the Supreme Court will be forced to revisit the issue. And their logic in the Windsor case will join forces with the march of public opinion to make it almost impossible for them not to issue a broad ruling which invalidates every gay marriage ban in country. 

I think everybody, on each side of the issue, has realized for the past two or three years that it is only a matter of time until this happens. But the decade or so of different policies from state to state now appears quite unlikely. I don't want to end without noting that a lot of lawyering remains to be done. Nothing is ever certain. And even when it's all but certain it's still not easy. But I see little way to look at the last week and not conclude that gay marriage will be the law of the land in every state in the country in the near future. Probably during the Obama presidency and maybe sooner still.

Waldo hopes it's sooner- both on general principles, but more so that NC House Speaker Thom Tillis- one of America's most cynical pols- can walk this back in his 2014 run for the U.S. Senate:

 The Speaker of the North Carolina House of Representatives, Thom Tillis (R-Cornelius) says he knows his party's marriage equality ban is ultimately pointless but voters should pass it anyway: 

          A question and answer session prompted questions on students’ minds, among those issues was the upcoming Amendment One that would constitutionally ban homosexual marriage.          

       “It’s a generational issue,” Tillis said. “The data shows right now that you are a generation away from that issue.”          

       According to Tillis, researchers have predicted Amendment One will pass with approximately 54 percent, but Tillis, who voted to pass the amendment, believes it won’t remain long.          

       “If it passes, I think it will be repealed within 20 years,” Tillis said.