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Massachusetts Liberal

Observations on politics, the media and life in Massachusetts and beyond from the left side of the road.

Friday, July 09, 2010

Kagan's moment may be on the horizon

Judge Joseph L. Tauro has really raised the stakes for Republicans looking to somehow block the nomination of Elena Kagan to the Supreme Court.

The high court traditionally takes cases when they get conflicting decisions on controversial issues. Tauro's ruling yesterday that the federal Defense of Marriage Act is unconstitutional certainly fills the bill on the second part of that equation -- even if it is technically applicable only to Massachusetts.
“This court has determined that it is clearly within the authority of the Commonwealth to recognize same-sex marriages among its residents and to afford those individuals in same-sex marriages any benefits, rights, and privileges to which they are entitled by virtue of their marital status.’’
But the reality is that Massachusetts' stance on gay marriage is central to this debate. And Tauro added more fuel to the fire by attacking the stance by opponents that judges can't interfere in allegedly sacrosanct traditions about marriage -- and he even tweaked Tea Partiers who like to hang everything on 10th Amendment states rights arguments.
Tauro wrote that, for many years, laws barring interracial marriage were at least as contentious as the current battle over gay marriage.

“But even as the debate concerning interracial marriage waxed and waned throughout history, the federal government consistently yielded to marital status determinations established by the states."

“That says something. And this court is convinced that the federal government’s long history of acquiescence in this arena indicates that, indeed, the federal government traditionally regarded marital status determinations as the exclusive province of state government."
Meanwhile, 3,000 miles away, another federal district court judge is weighing arguments against California's Proposition 8, which banned gay marriage there. Either way the ruling goes, advocates on both sides of that case see it as the ultimate test case to wind up before the Supreme Court.

Which brings us back to Kagan.

While Republicans have maintained their usual petulance to any and all things Obama, there has been no indication they intend to filibuster her nomination and require Democrats to rustle up a supermajority to secure her place on the court.

Nor has the California case been something lost in their deliberations. But the Tauro ruling could create a new sense of urgency -- certainly for the rabid right that fears gay marriage much as they opposed interracial unions.

Things may get even hotter in Washington.

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