States Rights

The initial reactions out of the Court hearing this morning (very much take it for what it’s worth) suggest that DOMA is in big trouble. The notable fine print, however, is that while the four liberals on the Court appear to see an Equal Protection problem, Anthony Kennedy appears to be focused on federalism — i.e., states rights, that DOMA oversteps into the states’ right to define marriage.

If that’s the case, it would probably be the first time that “states rights” was ever used to vindicate any actual person or group’s rights. It’s almost always been bulwark behind which states hide to deprive citizens of rights. There are likely some marginal examples of the contrary. But the big verdict of history is unmistakable. It would be an ironic first.

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