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12/03/2012

Audio: Conservative Republican Brian Brown mines DOMA hope out of Roberts' Obamacare opinion; that's silly

by Jeremy Hooper

Over the past year, the National Organization for Marriage has become a full-blown GOP organization, so I'm not surprised to hear president Brian Brown snickering at the idea that Chief Justice John Roberts went "over to the Dark Side" with his Obamacare ruling. However, if Brian is turning to what Roberts wrote in that opinion for insight into what might happen in the pending Defense of Marriage Act cases, he might want to read a little more closely. First the clip:

Brian is likely mining hope out of this line from Roberts' Obamacare musings: "It is not our job to protect the people from the consequences of their political choices." I've seen other right-bending writers and thinkers use this line to caution progressives watching the DOMA cases.

However, if you look at the extended thoughts, you will see that Roberts isn't really giving Brian the hope he wants. To wit:

Our deference in matters of policy cannot, however, become abdication in matters of law. "The powers of the legislature are defined and limited; and that those limits may not be mistaken, or forgotten, the constitution is written." Our respect for Congress’s policy judgments thus can never extend so far as to disavow restraints on federal power that the Constitution carefully constructed. “The peculiar circumstances of the moment may render a measure more or less wise, but cannot render it more or less constitutional.” And there can be no question that it is the responsibility of this Court to enforce the limits on federal power by striking down acts of Congress that transgress those limits. The questions before us must be considered against the background of these basic principles[FULL TEXT]

*This* is the snip most pertinent to DOMA. Those of us who are arguing against it, a law many of its backers as well as the man who signed it now disavow, are not really saying that the reactionary push by the Gingrich-led Congress was itself out of line. Not that legislative action itself, I mean. We are saying that what they passed back in 1996 is fundamentally unconstitutional. That's the position of the Obama administration. That's the position of many lower courts. That's the position of many rational thinkers (again, including some who voted for it/signed it). That's the conversation before us.

Now, I'm not confident that Chief Justice Roberts is going to ultimately decide that DOMA does transgress the limits of Congress and fly in the face of the constitution. Hell, at think point I'm not going to be overconfident about Ruth Bader Ginsberg's read, much less Roberts' opinion. But I am saying that the Chief Justice's Obamacare decision is not the tea leaf that Brian Brown seems to think it is (or at least wants others to believe it is). He's probably got a safe bet in Scalia, Thomas, and Alito, all of whom have a record as conserva-political as Brian's. Though hopefully even those three wouldn't reduce the logic to "Congress passed something seventeen years ago so therefore it's sacrosanct."

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