The Roberts Doctrine and DOMA

We can now see a theme emerging from the Roberts Court (or perhaps just from the Chief Justice himself).  The Court will bend over backwards to find a saving interpretation for an Act of Congress.  They did this for the Voting Rights Act.  He did this for the Affordable Care Act.  (They did not do it for McCain-Feingold though.)

Here’s my question.  Since the constitutionality of DOMA will probably be before the Justices next term, is there some saving construction of that statute?  Should somebody who wants to defend the law be working on an amicus brief?  (Granted, since the Proposition 8 case may also be before the Court, the statutory question may not matter, but it’s an interesting question.)

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4 Responses

  1. Brett Bellmore says:

    There wasn’t any saving interpretation for McCain/Feingold; It wasn’t something Congress could have done through some constitutional means, and Roberts just had to rationalize that the means actually chosen might as well have been that means. It was a direct assault on a basic civil right, freedom of speech.

    But, who knows how far Roberts will be able to bend backwards when his yoga classes are done. He might eventually find it in himself to approve of even political censorship.

  2. Shag from Brookline says:

    I understand Brett incorporated himself to prove he’s a person. We know of the silence of the lambs. Until recently (Citizens United 5-4 2010) corporations were silent (somewhat). Up to that point the inhumanity suffered by this ” … direct assault on a basic civil right, freedom of speech.” Hallelujah, hallelujah, free at last! I wonder how far Brett will be able to bend backwards with the upcoming demographics.

  3. Joe says:

    So, they will find a savings mechanism, except when they don’t. I think the sample size might be too small to determine what they will do.

    I think they can sever @3, which is the point of contention. Kennedy might go along this time, since he supports gay rights. The government had more than one string in its PPACA bow. Not sure how that applies here.

    CU could have been decided on narrow grounds & even if one thinks it was correct on its merits, I personally think it should have been done more slowly. The law was not totally tossed anyway since disclaimer and disclosure laws were held not to be unconstitutional. As applied to foreigners, the USSC also summarily affirmed regulations.