Rachel Maddow pushed Hillary to explain Bill Clinton's "Don't Ask, Don't Tell" policy and the Defense of Marriage Act.

Hillary said:

On Defense of Marriage, I think what my husband believed – and there was certainly evidence to support it – is that there was enough political momentum to amend the Constitution of the United States of America, and that there had to be some way to stop that. And there wasn’t any rational argument – because I was in on some of those discussions, on both “don’t ask, don’t tell” and on – on DOMA, where both the president, his advisers and occasionally I would – you know, chime in and talk about, “you can’t be serious.  You can’t be serious.” But they were.  And so, in – in a lot of ways, DOMA was a line that was drawn that was to prevent going further.  

Maddow offers a paraphrase: "It was a defensive action?" Hillary adopts the phrase:

It was a defensive action.  The culture rapidly changed so that now what was totally anathema to political forces – they have ceded.  They no longer are fighting, except on a local level and a rear-guard action.  And with the U.S. Supreme Court decision, it’s settled. “Don’t ask, don’t tell” is something that – you know, Bill promised during the ‘92 campaign to let gays serve openly in the military.  And it’s what he intended to do... And then... it was the most astonishing overreaction... by the military, by the Congress.  I – I remember being – you know, on the edge of one of those conversations, and – and so “don’t ask, don’t tell,” again, became a defensive line.  So I’m not in any way excusing them.  I’m explaining them... And I think that sometimes, as a leader in a democracy, you are confronted with two bad choices.  And it is not an easy position to be in, and you have to try to think, OK, what is the least bad choice and how do I try to cabin this off from having worse consequences?

Well defended. 

Yesterday at the Supreme Court, struggling over whether the argument for same-sex marriage is better expressed in terms of fundamental liberty or equal protection.

In the same-sex marriage argument yesterday (PDF), the Solicitor General premised his argument entirely on the right to equal protection of the laws, but Justice Kennedy wanted him to talk about the right to marry. Kennedy framed the question on the old right-to-die case Glucksberg (which was getting its first mention):

JUSTICE KENNEDY: I'm interested in your comments on Glucksberg, which says what we should have to define a fundamental right in its narrowest terms. A lot of the questions that... we're asking your colleague in the earlier part of the argument... had that in mind, I think. What... do we do with the language of Glucksberg that says we have to define it in a narrow way?

GENERAL VERRILLI: Justice Kennedy, forgive me for answering the question this way. We do recognize that there's a profound connection between liberty and equality, but the United States has advanced only an equal protection argument. We haven't made the fundamental rights argument under Glucksberg. And therefore, I'm not sure it would be appropriate for me not having briefed it to comment on that.

JUSTICE KENNEDY: Well, can you tell me why you didn't make the fundamental [rights] argument?

Verrilli refrains from saying because we thought it was the weaker argument (perhaps because of Glucksberg). He said because "this issue really sounds in equal protection." ("Sounds in" is legal talk.)

Later, Justice Breyer, questioning the state's lawyer, gave some indication that he thought the right to marry was a better ground for the decision than equal protection:

Exclusion of gay individuals from the jury requires an explanation, a 9th Circuit panel rules.

The issue here is peremptory challenges, which ordinarily do not require explanation, but there is Supreme Court case law requiring explanation when these challenges seem to be based on race or sex. That is, the opposing lawyer can require the lawyer who challenged the would-be juror to give some reason other than race or sex for wanting to exclude this person. Should sexual orientation be treated the same way?

Unlike race and sex, a person's sexual orientation isn't openly visible unless you use stereotypes and inference, but in this case, the challenged individual had answered some questions that elicited answers about his "partner" that included the pronoun "he."

“The record persuasively demonstrates that” the juror “was struck because of his sexual orientation,” [Judge Stephen R. Reinhardt wrote for a unanimous three-judge panel]. “Permitting a strike based on sexual orientation would send the false message that gays and lesbians could not be trusted to reason fairly on issues of great import to the community or the nation,” he added....

How will this work in future cases? Will lawyers accuse lawyers of excluding someone because he is or seems gay? Someone called in for jury duty will be subjected to lawyers arguing over whether he is perceived as gay?

Anyway, the 9th Circuit panel determined that the Supreme Court's DOMA case, United States v. Windsor, required heightened scrutiny for discrimination based on sexual orientation:

"We have analyzed the Supreme Court precedent... by considering what the court actually did, rather than by dissecting isolated pieces of text."

That's a useful prod. The Supreme Court — if it's going to have a system of levels of scrutiny — ought to tell us outright what level it's on. 

Living in compressed time with Supreme Court Justice Anthony Kennedy.

"We live in an era of time compression," said Justice Kennedy. And "It’s simply stunning to me to see the changes in attitudes." He was talking about attitudes about sexual orientation.

At the same time — compressed time, presumably — he said that, in a "functioning democracy," courts should not be "resolv[ing] the most serious issues of the day."

"I just don’t think that a democracy is responsible if it doesn’t have a political, rational, respectful, decent discourse so it can solve these problems before they come to the court."

Attitudes are changing rapidly, and in a democracy, serious issues should be resolved outside of the courts. And yet he wrote the decision that struck down part of the Defense of Marriage Act.

Why not wait for the democratic process to play out?

Maybe — in the mind of Anthony Kennedy — they did wait. DOMA was passed in 1996. They waited 17 years.

In compressed time, that's what? Half a century?

"How Edith Windsor fell in love, got married, and won a landmark case for gay marriage."

A great article by Ariel Levy. Worth subscribing to The New Yorker to get access. I had The New Yorker in audio podcast form, and this article inspired me to subscribe to the print edition. It begins:

"Fuck the Supreme Court!” Edith Windsor said, one hideously hot morning in June, when she’d had just about enough. Then she sighed and mumbled, “Oh, I don’t mean that.” What she really meant was that she was hot, she was tired of waiting, and, most of all, she was tired of being told what to do. “I’m feeling very manhandled!” she said.

It was Windsor’s eighty-fourth birthday, and she was spending it staring at a laptop screen as information from scotusblog.com flashed by in a typeface too small for her to read comfortably. Four years earlier, Windsor’s partner of more than forty years, Thea Spyer, died, leaving Windsor her sole heir. The two were legally married in Canada, in 2007, but, because of the Defense of Marriage Act, Windsor was not eligible for the exemption on estate tax that applies to husbands and wives. She had to pay $363,053 in taxes to the federal government, and $275,528 to New York State, and she did not think that was fair.

There's some excellent material about lawyering, including getting the right plaintiff as the face of the issue. One "experienced movement attorney" explains that "Women are better than men" and "post-sexual is better than young." Windsor was not just female and presumably "aged out of carnality," but, we're told, didn't "look gay."

Her pink lipstick and pearls would make it easier, [her lawyer Roberta] Kaplan knew, for people across the country to feel that they understood her, that she embodied values they could relate to.

Some movement lawyer types thought Windsor was the wrong plaintiff because she was too rich, and her legal problem was a problem of a rich person. Who owes $600,000 in taxes? What kind of civil rights movement forefronts suffering of that kind?

"There were these calls," Kaplan said. "These people from Lambda were like, 'We really think that bankruptcy is the perfect venue to challenge DOMA,' because they had a bankruptcy case they wanted to bring. Finally, I couldn't stand it. I said, 'Really?  I don't want to be disrespectful or classist, but do you really think that people who couldn't pay their personal debts are the best people to bring the claim?"...

Kaplan was convinced that Americans dislike taxes even more than they dislike the rich...

"All Legal Same-Sex Marriages Will Be Recognized for Federal Tax Purposes."

The U.S. Department of the Treasury adopts its position in response to the Supreme Court's DOMA case. This in my view is unquestionably the correct response. It means that if a couple marries in a place that permits same-sex marriage, they'll be considered legally married regardless of where they currently reside and whether that place recognizes same-sex marriage.

“Today’s ruling provides certainty and clear, coherent tax filing guidance for all legally married same-sex couples nationwide. It provides access to benefits, responsibilities and protections under federal tax law that all Americans deserve,” said Secretary Jacob J. Lew. “This ruling also assures legally married same-sex couples that they can move freely throughout the country knowing that their federal filing status will not change.”

As for past tax years that are still open under the statute of limitations, you're given an option to file an amended return and be accepted as married, but you don't have to. So, if your tax bill would be less being considered unmarried, even when you were, you get to keep that advantage you had for those years. If you'll pay less by filing as married, you should file the amended return. Going forward, if you're married, you're married for federal tax purposes. You can't move to a state that doesn't recognize your marriage as a way to reduce your tax bill.

Why is the NYT publishing yet another article on the fact that Justice Ginsburg is not resigning from the Supreme Court?

I was a bit surprised to see this article, with a big picture, at the top center of the NYT on-line front page today. It's utter non-news. So what's the point? She did an interview with Adam Liptak, but just last June, we'd heard the same thing, in the pages of the NYT, from Linda Greenhouse.

Let's look at Liptak's article as opposed to the front-page teaser, which says: "Amid calls from some liberals that she step down in time for President Obama to name her successor, Justice Ruth Bader Ginsburg said she was fully engaged in her work." Think about why that is the teaser. But Liptak is writing because he got an interview:

"Classic Linda Greenhouse awfulness."

Opines Stephen Bainbridge:

First, there's the implicit claim that she is able to divine the inner workings of [Chief Justice] Roberts' decision making processes. She knows what's in his "head" and "heart," as if she were some psychic shrink....

Speculating about what's really going on behind the argle-bargle in the written opinions is something we must do to avoid falling for propaganda. I use the term "argle-bargle" to remind you of what Justice Scalia wrote in his dissenting opinion in the DOMA case, Windsor:

[T]he real rationale of today’s opinion, whatever disappearing trail of its legalistic argle-bargle one chooses to follow, is that DOMA is motivated by "'bare . . . desire to harm'" couples in same-sex marriages.

And that's just what Scalia feels is acceptable within the rigors of judicial opinion-writing. We must feel impelled to pull apart the judicial verbiage that we sometimes call the "decision" to try to see The Decision, which is to say, the mental processes that actually took place in the minds of the judges.

Of course, we can't really know. None of us, not even Linda Greenhouse, can divine the inner workings of anyone else's head. (Thank God! What a world this would be if we could!) But there is no more valuable inner working of your own head than to contemplate the inner workings of the heads of others. What fools we are if we take other people's words at face value! But — and here Professor Bainbridge is right — we are wrong if we present our speculation as the truth. If we posture as certain, those who don't like what we say can smack us down. You can't know that!

But I speculate that Linda Greenhouse — in the secret inner workings of the head that only she can access — knows her "The Real John Roberts Emerges" overstates what she knows about the inner workings of the mind of John Roberts. I presume that she has her reasons for writing like that. I presume, I don't know, but I could — if the inner workings of my mind cranked in this direction — write a blog post titled "The Real Linda Greenhouse Emerges." Or "The Real Stephen Bainbridge Emerges."

See if you can read my mind and tell why I don't think such cogitations need to be spelled out.

"Nationalized gay marriage, now inevitable."

Explains Charles Krauthammer, who's not happy about this.

If discriminating (regarding federal benefits) between a gay couple and a straight couple is prohibited in New York where gay marriage is legal, by what logic is discrimination permitted in Texas, where a gay couple is prevented from marrying in the first place?

Which is exactly where the majority’s [Equal Protection] rationale leads — nationalizing gay marriage.... This is certainly why David Boies, the lead attorney in the companion Proposition 8 case, was so jubilant when he came out onto the courthouse steps after the ruling. He understood immediately that once the court finds it unconstitutional to discriminate between gay and straight couples, nationalizing gay marriage is just one step away.

So why didn’t Justice Anthony Kennedy, the traditional swing vote who wrote the majority opinion on DOMA with the court’s four liberals, take that step?

It's about timing, slowing things down a bit and giving people a chance to accommodate to things.

"John Roberts’ Openly Gay Cousin Will Now Be Getting Married."

TPM reports.

[Jean] Podrasky says she’s just as surprised that Roberts voted to uphold DOMA, as she is that he sided with the majority in throwing out the Prop 8 case on procedural grounds, which had the effect of making gay marriage legal again in California. Roberts’ split means that despite believing the federal government should continue not to recognize same-sex marriages, he helped clear the one obstacle standing in the way of his cousin and her fiancee.

“I want to say I’m from a very, very big family — I have 12 cousins on both sides of the family,” she says. By that measure, even though he has immense power as Chief Justice, Roberts is just on the other side of a family disagreement. “I want to say that quite a bit of my family on that side are quite conservative and pretty Catholic. We have differences of opinions on many many things, but we are still family. He is about 10 years older than me, so we grew up at different times... I tend to see him at family functions. Basically weddings, funerals, celebrations things like that.”

Whether he'll be invited to her wedding is a question she's diplomatic about not answering:

“I actually don’t know,” she told me. “I’m certainly inviting family [but] we don’t have our guests lists yet.”

"So many people here, people that I otherwise respect, have written so much cloaked or naked vituperation about gay people..."

"... and our effect on civilization, that what little sympathy I had for your 'feelings' has long evaporated."

At this point in my life I'm finished with the lot of you, the plantation master so-called "liberals" who are less distinguishable from Fascists every day, and the so-called small-government "conservatives", who have such little faith in their God and the eternal and sacred institution of marriage that they bray for the State to enshrine their doctrine in secular law, and scream "Apocalypse!" when it doesn't happen.

Writes Palladian, in last night's café, where the whimpers of the losers of the DOMA case continued, along with slurpy wound-licking over my calling them losers — which is what they were, having lost in that case — and advising them not to whine over the more-or-less false perception that they'd been called bigots.

What accounts for this sudden and shocking spike in bigotry?

"A year and a half ago, even the president of the United States opposes gay marriage.  President Bill Clinton, a Democrat, signed DOMA into law.  Now all of a sudden, after Obama changes his mind, the whole country supports gay marriage, and those who don't are bigots."

What accounts for this sudden and shocking spike in bigotry?

It depends on what the meaning of bigotry is. (To paraphrase that humanitarian, Bill Clinton.)



But — to quote Marbury v. Madison — as quoted in the DOMA case, United States v. Windsor, "‘[i]t is emphatically the province and duty of the judicial department to say what the law is.’ ” Zivotofsky v. Clinton, 566 U. S. ___, ___ (2012) (slip op., at 7) (quoting Marbury v. Madison, 1 Cranch 137, 177 (1803))." (I know, who quotes Marbury like that? And what the hell was Zivotofsky v. Clinton? Was there some insuperable urge to bring up Bill Clinton? The Clinton in Zivotofsky was Hillary Clinton, in her Secretary of State role, and this was the case about the State Department's refusal to list Israel as the place of birth on a U.S. passport for a person born in Jerusalem.)

So if it's the Court's duty to define the terms, and opposition to same-sex marriage is defined as nothing but bigotry, then it's the Court's decision in Windsor that accounts for the sudden and shocking spike in bigotry.

But let's be clear about a few things.

1. The majority opinion in Windsor did not use the word "bigotry" (or "bigot"). That word appears in Chief Justice Roberts's dissenting opinion: "At least without some more convincing evidence that the Act’s principal purpose was to codify malice, and that it furthered no legitimate government interests, I would not tar the political branches with the brush of bigotry." Justice Alito also uses the word: "Acceptance of [Windsor's] argument would cast all those who cling to traditional beliefs about the nature of marriage in the role of bigots or superstitious fools."

2.  The majority's expression is "a bare congressional desire to harm a politically unpopular group," which might sound extreme, but it appears in the case law going back to the early 70s, and it's a stock phrase used to characterize the government's interest when the Court is applying minimal scrutiny and therefore needs to say that there is no legitimate governmental interest.

3. What that "bare... desire to harm" language really means is: We don't want to have to heighten scrutiny for this discriminated-against group — they don't want responsibility for what that would mean in future cases — but we do want to be able to strike this down while staying at the minimal scrutiny level.

4. This doctrinal maneuver produces the strange impression that the Court is calling Bill Clinton and the majority of the members of the 104th Congress a bunch of bigots.

5. Now lots of traditionalists have the raw material to whine and cry about being called bigots. I doubt if that will work out very well for them, but they've been stewing in their own juice for a long time, and they're going to find it hard to stop. Unfortunately, same-sex marriage was originally presented as a conservative idea, and traditionalists could have gotten out in front of liberals on this issue if they'd listened to the original argument and predicted the future better, and now they'll have to scramble to improve their image. If they think crying about being called bigots — when, again, the majority didn't even use that word — is going to help, I just have to laugh. You took the opportunity to oppress when it was there, and now that it's gone, you want to say you are oppressed. Man up, losers. You lost. And you deserved to lose. Now, stop acting like losers. If you can. (I bet you can't!)

"Justice Scalia Used The Term ‘Argle-Bargle’ In A Scathing, Condescending DOMA Rant."

Business Insider gets to the meat of things.

Specifically, Scalia said: "As I have said, the real rationale of today’s opinion, whatever disappearing trail of its legalistic argle-bargle one chooses to follow, is that DOMA is motivated by '"bare . . . desire to harm"' couples in same-sex marriages."

I started a new tag today. No, not "argle-bargle." Paraphrase. I've become immensely interested in the concept of paraphrasing, and I'm hypervigilant about paraphrasing about paraphrasing, and I see that there. Scalia has a really cheeky way of saying "so what you're really saying is...": whatever disappearing trail of its legalistic argle-bargle one chooses to follow....

Memorize that. Use it. It's sure to annoy some people and give others a great sense of relief. For example, law students may enjoy hearing the lawprof say whatever disappearing trail of its legalistic argle-bargle Justice X chose to follow, the real rationale is...

So high-handed! So liberating!

The (unlinkable) OED traces "argle-bargle" — which means "Disputatious argument, bandying of words, wrangling" — back to 1872:

1872   A. J. Cupples Tappy's Chicks 252   During these days of ‘argle bargle’, as our smith's wife called it.
a1881   Carlyle in W. A. Knight Retrospects (1904) 15,   I have for a long time given up the argle-bargle of metaphysics.
1927   Observer 11 Dec. 15/2   Can they..stand up to a good and sufficient argle-bargle that lasts for the best part of three hours?

UPDATE: 2 days later, I actually did make a tag for argle-bargle — as the continued use of the term appealed to me — and came back to add it here.

DOMA as "a bare congressional desire to harm a politically unpopular group."

In United States v. Windsor, the Supreme Court finds that DOMA "violates basic due process and equal protection principles applicable to the Federal Government." (The constitutional text is the 5th Amendment which only says "due process," but the Court has long viewed "equal protection," which is explicit in the 14th Amendment, as implicit in the 5th Amendment.) Justice Kennedy writes for the majority:

The Constitution’s guarantee of equality “must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot” justify disparate treatment of that group. Department of Agriculture v. Moreno, 413 U. S. 528–535 (1973).

The unpopular group to be harmed in Moreno was hippies. To understand the scourge of hippies as it was seen at the time, I highly recommend this 1971 NYT  article: "Ripping Off, The New Life Style" (citing the Jefferson Airplane lyric "All your private property is target for your enemy/And your enemy is/We-e-e"). Congress was hoping to keep food stamps away from hippies, and that didn't cut it.

So is keeping marriage away from gay people no better than denying food stamps to hippies?

In determining whether a law is motived by an improper animus or purpose, “ ‘[d]iscriminations of an unusual character’ ” especially require careful consideration. Supra, at 19 (quoting Romer... at 633). 

How is excluding gay people from marriage unusual? It's an old tradition. What's unusual is Congress horning in on an area of traditional state regulation:

DOMA’s unusual deviation from the usual tradition of recognizing and accepting state definitions of marriage here operates to deprive same-sex couples of the benefits and responsibilities that come with the federal recognition of their marriages. 

And there's "strong evidence" that DOMA had "the purpose and effect of disapproval" of same-sex couples.

The avowed purpose and practical effect of the law here in question are to impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages made lawful by the unquestioned authority of the States.

That language about "stigma" and "a separate status" should be useful in challenging state law that creates "civil unions" for gay people, though the problem in Windsor was only about the federal government's refusal to recognize marriages that the states had validated.

... DOMA undermines both the public and private significance of state-sanctioned same-sex marriages; for it tells those couples, and all the world, that their otherwise valid marriages are unworthy of federal recognition. This places same-sex couples in an unstable position of being in a second-tier marriage. The differentiation demeans the couple, whose moral and sexual choices the Constitution protects... and whose relationship the State has sought to dignify. And it humiliates tens of thousands of children now being raised by same-sex couples. The law in question makes it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives.

Under DOMA, same-sex married couples have their lives burdened, by reason of government decree, in visible and public ways. By its great reach, DOMA touches many aspects of married and family life, from the mundane to the profound. It prevents same-sex married couples from obtaining government healthcare benefits they would otherwise receive....

Ultimately, the Court finds "no legitimate purpose" —  only "the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity." Again, it's hard to see why the states' willingness to dignify these relationships is essential, but that's the question before the Court today. I don't think, in the end, that this is really very much about federalism, except as a steppingstone. This is a case about rights. Even though there's no heightening of the level of scrutiny, the Court aggressively characterizes the government's purported legitimate interests from the rights claimants' point of view and sees nothing but disparagement, denigration, and stigma.

ADDED: I'm just getting to the Scalia dissent saying the Kennedy opinion may "initially fool[] many readers... into thinking that this is a federalism opinion" and seeing no "point" in the long discussion of state power to define marriage other than — he guesses — to make a "pretense" that this case is only about limiting the federal government and "leaving the second, state-law shoe to be dropped later, maybe next Term." I said "steppingstone." Hopping across a stream, taking off shoes... the point is the same. It's a case about rights.

"Obama’s Pen May Shape Scope of Marriage Ruling."

NYT headline. The article is about what the administration might have to do after the Supreme Court issues its opinion on the Defense of Marriage Act.

"Obama did not tout himself as the civil rights candidate in either of his two presidential runs."

"But if gay marriage becomes commonplace throughout America by the end of his second term, something that seems entirely possible right now, that could become an important part of his legacy as president."

Writes Perry Bacon Jr., in a piece written a month ago, which I ran across as I was researching the demographics of support for gay marriage. It's often assumed that black people oppose gay marriage. There's a delusion that the GOP has an opportunity to appeal to black people by leveraging this opposition. How much would black people need to loathe gay marriage to abandon the Democratic Party over this issue?

By the way, those who don't like seeing Obama get credit for anything should hope that the Supreme Court — which has 2 pending cases on the subject — finds a constitutional right to marry a person of one's own sex, because if the issue is left to political decisionmaking, we will end up in the same place and same-sex marriage will be inscribed in Obama's legacy.

The jurisdiction questions in the same-sex marriage cases.

Explained in a layperson-friendly way by lawprofs:

"The swing vote is in (so stop kissing up)."

Writes Dana Milbank, in a slight twist of the usual lazy journalist approach to covering the Supreme Court: Inform readers that Anthony Kennedy is the swing vote, pull his statements/questions out the transcript, and riff about them — What's he thinking? Who knows? Could go either way — and let him know — subtly or unsubtly — how much you'll love him if he does what you want and how he risks his social and historical standing if he does not.

There's an issue of "standing" in both same-sex marriage cases. Standing — the legal doctrine — has to do with whether the party seeking access to the judicial process has a concrete and particularized injury that is fairly traceable to the opposing party and likely to be redressed if he happens to prevail on the legal issue. But the real issue of standing — these journalists make me think — is Justice Kennedy's standing within the elite crowd of politics, academia, and journalism.

Milbank's riff is: He can already tell. 

Early in the oral argument [in Windsor], the conservatives — Antonin Scalia, Samuel Alito and Chief Justice John Roberts (a silent Clarence Thomas can be assumed to be their tacit tagalong) — explored the idea that the case might be disposed of on the technical grounds that no injury had been proved, a technique that would avoid a ruling calling DOMA unconstitutional.

But Kennedy was having none of it. “It seems to me there’s injury here,” he said.

The swing vote had swung....

Kennedy left little doubt about what he thinks the answer is. When Solicitor General Donald Verrilli argued that DOMA violated the notion of equal protection under the law, Kennedy cut him off. “You are insisting that we get to a very fundamental question about equal protection,” he said, “but we don’t do that unless we assume the law is valid otherwise to begin with.”

And if Kennedy doesn’t assume something, nobody can assume it.

The usual sucking up is not needed.

It's embarrassing to the Court that it is talked about this way, and — ironically — it makes it harder for the Court to find new/bigger individual rights that ordinary people can believe really came out of a dutiful judicial analysis of the law. That unwittingly bolsters the argument for leaving this issue in the arena of majoritarian politics.

"Flashback: When Democrats Swore They Would Never Back Gay Marriage."

"[A] short video composed of the floor speeches some top Democrats made about SSM. At the time, Republicans wanted to block gay marriage in Massachusetts by amending the constitution with an official marriage definition. Democrats argued against that, but they didn't argue in favor of gay marriage. They argued that DOMA made such an amendment unneccessary. They assured people like Rick Santorum that the slippery slope case for gay marriage was bogus."

Obama thinks it's "important for the court to weigh in" on gay marriage.

"My hope is that the court reaches these issues," he said, alluding to the standing problems in the 2 cases, which could keep the Court from reaching the merits.

The standing problem in the DOMA case resulted from Obama's own decision not to defend the law. I'm sure Obama — as an erstwhile lawprof — knows that the Supreme Court doesn't just "weigh in" on issues. It can only decide real adversarial disputes between parties, and his refusal to defend the federal statute is the basis of the argument that this is not a "case" within the meaning of Article III of the Constitution.