Decisionism Flashes Back

See, I was planning to make my next post about why I've stopped blogging.* But then Judge Tauro did his thing and Judge Walker did his and now I can't resist linking to some early thoughts I had on all of this.

One thing to watch for here is what I hereby dub the "Reverse Cocktail Party Effect". Recall that one stubborn response to instances in which Justice O'Connor or Justice Kennedy strayed from the conservative line in individual rights cases has been that they just want to keep getting invited to Washington cocktail parties. In this vein, keep your eyes peeled for enlightened right-leaning legal thinkers expressing support for equal marriage rights but furrowing their brows at application of the rational basis test to denial of those rights.

*Other than abject laziness, of course.

G.L.A.D. v. D.O.M.A.

Okay. So today, a number of Massachusetts plaintiffs filed a lawsuit challenging the constitutionality of the Federal Defense of Marriage Act.* The case has been assigned to Judge Tauro. The complaint can be found here. G.L.A.D. has a spiffy website up here.

If you are generally sympathetic to gay rights and your first reaction was NOOOOOO!, you may not be alone.** The conventional wisdom is that we have a pretty conservative Supreme Court. But that gets punctured a bit when you look at gay rights cases. If you read the majority opinion in Lawrence v. Texas (especially the pretty majestic third-to-last paragraph), and remember that counsel for the plaintiffs in that case wept tears of joy while Justice Kennedy read it from the bench, you might start to think that these plaintiffs, well, they have a shot. Don't they?

First order of business: watching the Obama Administration agonize about how to respond.

*Signed into law by Bill Clinton on September 21, 1996. What was going on in 1996? That was an election year? REALLY?!

**If you are neutral on the issue or unsympathetic, your reaction probably involved some grumbling about activist judges and then you went on with your day. That's cool. This is America, after all.