Morning Report – Purchase Apps up in spite of rate rise 6/26/13

Morning Report

  Last Change Percent
S&P Futures  1587.9 6.5 0.41%
Eurostoxx Index 2599.1 55.8 2.19%
Oil (WTI) 94.88 -0.4 -0.46%
LIBOR 0.276 -0.001 -0.18%
US Dollar Index (DXY) 82.73 0.144 0.17%
10 Year Govt Bond Yield 2.53% -0.08%  
Current Coupon Ginnie Mae TBA 101.2 0.7  
Current Coupon Fannie Mae TBA 100.7 0.7  
RPX Composite Real Estate Index 205.5 0.2  
BankRate 30 Year Fixed Rate Mortgage 4.58    

 

Green on the screen in spite of a nasty downward revision in Q1 GDP. Stock futures are holding in while bonds are taking off, with the 10 year yield down 7 basis points from an hour ago. MBS are on the move as well.
 
The first estimate of Q1 GDP released in late April had growth at +2.5%. That number was revised downward to 2.4% the following month. The third and final revision came in this morning: +1.8%. Hardly robust. It makes you wonder what Bernanke was looking at when he announced QE was coming to a close. 
 
In spite of the bloodbath in bonds last week, mortgage applications fell only 3%. The MBA purchase index was up 2%. Refis dropped 5.2%. There has been two theories out there about the increase in rates – either (a) the higher rates are going to put people off and they will withdraw from the market or (b) the higher rates are going to get people off the fence, because rates and prices are going up. So far, it looks like its the latter.
 
One other rate rise datapoint: yesterday: The Conference Board Consumer Confidence Index came in at 81.4, the highest since winter of 2008. Dig into the internals, and you will see the expectations index jumped considerably – this index takes into account a respondent’s view of their own personal financial situation, and shows that so far, the increase in rates has yet to be felt. Of course credit card rates are fixed to prime, which hasn’t moved quite yet, but the early data shows the economy is taking the hike in rates in stride.
 
Lennar, the big homebuilder who reported better than expected quarterly numbers yesterday, sounded extremely bullish on its conference call. First, they see no evidence that rates are affecting home purchases yet, which comports with what we saw out of the MBA purchase numbers above. Second, they are spotting…. wait for it…. the first time home buyer. Lennar’s average price point is $255k, which puts them squarely in the “first time homebuyer” category. They are noticing “household decoupling” which is a fancy way of saying recent grads are moving out of their parents’ basements. One other interesting tidbit – their price increases were pretty much eaten by increased costs. While lumber did rally hard late last year and into early this year, it has fallen precipitously. So what was the other increased cost? Labor. There is a shortage of skilled labor in many geographical areas. Does that make them bearish? Absolutely not – rising middle class wages is exactly what the economy needs. 
 
Finally, Census put out new home sales data yesterday. Sales of new single family homes came in at a seasonally adjusted rate of 476,000 in May, up 2.1% from last month and 29% from a year ago. The median sales price was $263,900, while the average sales price was $307,800. These are increases of 10% and 18% respectively, but it is not based on any sort of repeat-sales methodology so you can’t extrapolate existing home price appreciation from it. The difference between mean and median is the widest it has been, which implies most of the action is in the luxury end of the market. There are 161,000 houses for sale at the end of May, which represents 4.1 months’ supply at current sales volumes. As you can see from the chart below, we are still at very, very depressed levels. 

40 Responses

  1. Interesting series of tweets from Jay Cost @ The Weekly Standard on the VRA decision. I found the bolded ones particularly interesting.

    @JayCostTWS: Reminds me of a point re: GOP gerrymandering. Section 2 of the VRA is the biggest gerrymandering tool in history of country.

    @JayCostTWS: What Section 5 did was reverse the burden of proof for certain jurisdictions. Section 4 used election results from 1964 to identify them.

    @moelane: @JayCostTWS And one that is used to the mutual satisfaction of Republicans, and black Democrats.

    @JayCostTWS: Southern GOP likes Section 2 of the VRA. Minority majority districts mean GOP now controls something like 70% of Southern House seats.

    @JayCostTWS: Like so many other noble goals the federal gov’t has pursued, VRA has become a tool to exercise naked partisan power in last 30 years.

    @JayCostTWS: When SCOTUS upheld Section 5 initially, it noted the extraordinary circumstances that justified an extraordinary seizure of local matters.

    @JayCostTWS: When SCOTUS upheld Section 5 initially, it noted the extraordinary circumstances that justified an extraordinary seizure of local matters.

    @JayCostTWS: No doubt there are many jurisdictions currently covered by Section 5 that are getting a bad deal. http://t.co/aSErChuQho

    @JayCostTWS: A lot of these counties are actually minority-majority and thus minorities have control over local affairs!

    @JayCostTWS: .@McCormackJohn @moelane It is also a major reason why the House is so ideologically polarized.

    @JayCostTWS: .@McCormackJohn @moelane Instead of moderate, white Dems we get liberal, black Dems and conservative, white GOPers.

    @JayCostTWS: The original Section 4 formula was not drawn up blindly, but to target specific jurisdictions LBJ and Katzenbach wanted to target.

    @JayCostTWS: One of the things Nixon did to court the South was *expand* the formula to include more jurisdictions…spread the misery. …

    @JayCostTWS: Which goes to show that almost right away it became a political tool.

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  2. It’s a new day, it’s a new dawn…………………♪♫♪♫♫

    (Reuters) – The Supreme Court on Wednesday handed a significant victory to gay rights advocates by recognizing that married gay men and women are eligible for federal benefits and paving the way for same-sex marriage in California.

    The court, however, fell short of a landmark ruling endorsing a fundamental right for gay people to marry.

    The two cases, both decided on 5-4 votes, concerned the constitutionality of a key part of a federal law, the Defense of Marriage Act (DOMA), that denied benefits to same-sex married couples and a California state law enacted in 2008, called Proposition 8, that banned gay marriage.

    The Supreme Court rulings come amid rapid progress for advocates of gay marriage in recent months and years in the United States and internationally. Opinion polls show a steady increase in U.S. public support for gay marriage.

    Gay marriage is an issue that stirs cultural, religious and political passions in the United States as elsewhere. Gay marriage advocates celebrated outside the courthouse. An enormous cheer went up as word arrived that DOMA had been struck down. “DOMA is dead!” the crowd chanted, as couples hugged and cried.

    “Our marriage has not been recognized until today,” said Patricia Lambert, 59, who held her wife, Kathy Mulvey, 47. A South African, Lambert said she no longer would have to worry about being forced to leave the country if her work visa expired.

    The court struck down the federal law as a violation of the U.S. Constitution’s guarantee of equal protection under the law but ducked a ruling on Proposition 8 by finding that supporters of the law did not have standing to appeal a federal district court ruling that struck the law down.

    While the ruling on DOMA was clearcut, questions remained about what exactly the Proposition 8 ruling will mean on the ground. There is likely to be more litigation over whether the district court ruling applies statewide.

    After hearing of the California ruling outside the courthouse, Anthony Romero, the executive director of the American Civil Liberties Union, said the fight for gay marriage would head back to the states.

    “We take it to the states – state by state, legislature by legislature, governor by governor, and constitutional amendment by constitutional amendment,” he said.

    http://www.reuters.com/article/2013/06/26/us-usa-court-gaymarriage-idUSBRE95P06W20130626

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  3. I guess the GDP downwards revision means the economy can now take a backseat to immigration, gay marriage and climate change.

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  4. “I guess the GDP downwards revision means the economy can now take a backseat to immigration, gay marriage and climate change.”

    surprising revision – most 3rd revs don’t change at all..

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  5. 20 week abortion restrictions show

    But the poll, notably, showed that women supported such a measure in greater numbers than men (50 percent of women in favor; 46 percent of men).

    http://mobile.nationaljournal.com/congressional-connection/coverage/americans-narrowly-support-20-week-abortion-ban-20130626

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  6. Brent, the cynic in me says the Executive branch needed a growth % that wouldn’t hurt immigration pitch. They have the votes ergo revision can be published.

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  7. Interesting polling McWing. I’ve actually pointed out before that more men than women support choice. But I thought this was an unnecessary part of the polling, even though it’s supposedly the basis for the new 20 week bans conservatives are pushing. If I believed it I might say I supported it as well.

    They were also told supporters say the bill was necessary because a fetus can feel pain at that point in pregnancy

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  8. Here’s the news from CA regarding Prop 8 and what the SC decision means.

    In a ruling that assures further legal battles, the high court found that backers of Proposition 8 did not have the legal right to defend the voter-approved gay marriage ban in place of the governor and attorney general, who have refused to appeal a federal judge’s 2010 ruling finding the law unconstitutional.

    The Supreme Court ruling, which found it had no legal authority to decide the merits of a challenge to Proposition 8, sends the case back to that original decision — and the only question now is how quickly same-sex couples can marry and whether that ruling will have immediate statewide effect.

    Gov. Jerry Brown said the state will instruct county clerks across California to start issuing marriage licenses to gay and lesbian couples once the Supreme Court’s decision is final and the legal details are complete in the lower courts. The governor indicated Attorney General Kamala Harris has concluded that the original injunction against Proposition 8 applies statewide, which would compel the state to issue marriage licenses to same-sex couples once the Supreme Court’s ruling becomes final in about 25 days. Harris is scheduled to address the media later this morning.

    http://www.mercurynews.com/nation-world/ci_23542472/u-s-supreme-court-strikes-down-federal-ban

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  9. That precedent will come back to haunt future initiatives. Basically the state government can now nullify any initiative it doesn’t want to take effect by refusing to defend it as no other group will have standing.

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    • Read Scalia’s dissent in the DOMA case. As usual he is very good. In his conclusion he also calls out the majority for its transparent disingenuousness.

      The penultimate sentence of the majority’s opinion is a naked declaration that “[t]his opinion and its holding are confined” to those couples “joined in same-sex marriagesmade lawful by the State.” Ante, at 26, 25. I have heard such “bald, unreasoned disclaimer[s]” before. Lawrence, 539 U. S., at 604. When the Court declared a constitutional right to homosexual sodomy, we were assured that the case had nothing, nothing at all to do with “whetherthe government must give formal recognition to any relationship that homosexual persons seek to enter.” Id., at 578. Now we are told that DOMA is invalid because it “demeans the couple, whose moral and sexual choices the Constitution protects,” ante, at 23—with an accompanying citation of Lawrence. It takes real cheek for today’s majority to assure us, as it is going out the door, that a constitutional requirement to give formal recognition to same-sex marriage is not at issue here—when what has preceded that assurance is a lecture on how superior the majority’s moral judgment in favor of same-sex marriage is to the Congress’s hateful moral judgment against it. I promise you this: The only thing that will “confine” the Court’sholding is its sense of what it can get away with.

      I do not mean to suggest disagreement with THE CHIEF JUSTICE’s view, ante, p. 2–4 (dissenting opinion), that lower federal courts and state courts can distinguish today’s case when the issue before them is state denial of marital status to same-sex couples—or even that this Court could theoretically do so. Lord, an opinion with such scatter-shot rationales as this one (federalism noises among them) can be distinguished in many ways. And deserves to be. State and lower federal courts should take the Court at its word and distinguish away.

      In my opinion, however, the view that this Court will take of state prohibition of same-sex marriage is indicated beyond mistaking by today’s opinion. 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. Supra, at 18. How easy it is, indeed how inevitable, to reach the same conclusion with regard to state laws denying same-sex couples marital status.

      Consider how easy (inevitable) it is to make thefollowing substitutions in a passage from today’s opinion ante, at 22:

      (snip)

      Similarly transposable passages—deliberately transposable, I think—abound. In sum, that Court which finds it so horrific that Congress irrationally and hatefully robbed same-sex couples of the “personhood and dignity” whic hstate legislatures conferred upon them, will of a certitude be similarly appalled by state legislatures’ irrational and hateful failure to acknowledge that “personhood and dignity” in the first place. Ante, at 26. As far as this Court is concerned, no one should be fooled; it is just a matter of listening and waiting for the other shoe.

      By formally declaring anyone opposed to same-sex marriage an enemy of human decency, the majority arms well every challenger to a state law restricting marriage to its traditional definition. Henceforth those challengers will lead with this Court’s declaration that there is “no legitimate purpose” served by such a law, and will claim that the traditional definition has “the purpose and effect to disparage and to injure” the “personhood and dignity”of same-sex couples, see ante, at 25, 26. The majority’s limiting assurance will be meaningless in the face of language like that, as the majority well knows. That is why the language is there. The result will be a judicial distortion of our society’s debate over marriage—a debate that can seem in need of our clumsy “help” only to a member ofthis institution.

      As to that debate: Few public controversies touch aninstitution so central to the lives of so many, and few inspire such attendant passion by good people on all sides.Few public controversies will ever demonstrate so vividly the beauty of what our Framers gave us, a gift the Courtpawns today to buy its stolen moment in the spotlight: a system of government that permits us to rule ourselves. Since DOMA’s passage, citizens on all sides of the question have seen victories and they have seen defeats. There have been plebiscites, legislation, persuasion, and loud voices—in other words, democracy. Victories in one place for some, see North Carolina Const., Amdt. 1 (providing that “[m]arriage between one man and one woman is the only domestic legal union that shall be valid or recognized in this State”) (approved by a popular vote, 61% to 39% on May 8, 2012), are offset by victories in other places for others, see Maryland Question 6 (establishing “that Maryland’s civil marriage laws allow gay and lesbian couples toobtain a civil marriage license”) (approved by a popular vote, 52% to 48%, on November 6, 2012). Even in a single State, the question has come out differently on different occasions. Compare Maine Question 1 (permitting “theState of Maine to issue marriage licenses to same-sex couples”) (approved by a popular vote, 53% to 47%, onNovember 6, 2012) with Maine Question 1 (rejecting “the new law that lets same-sex couples marry”) (approved by apopular vote, 53% to 47%, on November 3, 2009).

      In the majority’s telling, this story is black-and-white: Hate your neighbor or come along with us. The truth is more complicated. It is hard to admit that one’s political opponents are not monsters, especially in a struggle like this one, and the challenge in the end proves more than today’s Court can handle. Too bad. A reminder that disagreement over something so fundamental as marriage can still be politically legitimate would have been a fit task for what in earlier times was called the judicial temperament. We might have covered ourselves with honor today, by promising all sides of this debate that it was theirs to settle and that we would respect their resolution. We might have let the People decide.

      But that the majority will not do. Some will rejoice intoday’s decision, and some will despair at it; that is the nature of a controversy that matters so much to so many. But the Court has cheated both sides, robbing the winners of an honest victory, and the losers of the peace that comes from a fair defeat. We owed both of them better. I dissent.

      The absence of a “respectfully” in that final line is pointed, is it not?

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  10. “absence of a “respectfully” in that final line is pointed, is it not?”

    this is becoming a theme. the first i recall hearing/seeing that is Ginsburg in Bush v. Gore.

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    • nova:

      the first i recall hearing/seeing that is Ginsburg in Bush v. Gore.

      Me too. I remember that being a point of conversation, which is why I noticed it today.

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  11. Sorry guys, I don’t think this is “very good”. I think he’s acting like someone who has literally no true understanding of homosexual couples and continues to belittle them by what he calls sodomy and moral choices. I’m not particularly impressed whatever his legal argument is which may or may not be legitimate.

    When the Court declared a constitutional right to homosexual sodomy, we were assured that the case had nothing, nothing at all to do with “whetherthe government must give formal recognition to any relationship that homosexual persons seek to enter.” Id., at 578. Now we are told that DOMA is invalid because it “demeans the couple, whose moral and sexual choices the Constitution protects,” ante, at 23—with an accompanying citation of Lawrence. It takes real cheek for today’s majority to assure us, as it is going out the door, that a constitutional requirement to give formal recognition to same-sex marriage is not at issue here—when what has preceded that assurance is a lecture on how superior the majority’s moral judgment in favor of same-sex marriage is to the Congress’s hateful moral judgment against it. I promise you this: The only thing that will “confine” the Court’sholding is its sense of what it can get away with.

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  12. Scalia is noting that the majority is disingenuous when it says that the current case can’t be cited in the future to overturn other state laws against SSM given the precedent from Lawrence.

    He’s exactly right, and his legal argument is what matters, not his lack of understanding of homosexual couples. It’s not the place of the SCOTUS to enact social policy, but rather to review laws to determine if they comply with the Constitution.

    He should have thrown in a dig about interstate commerce as well, i.e. the DOMA can be upheld due to it’s impact on interstate commerce.

    Ruth Marcus has a good piece on this:

    http://www.washingtonpost.com/blogs/post-partisan/wp/2013/06/26/why-i-hope-scalia-is-right-on-same-sex-marriage/?hpid=z3

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  13. Here again is the libertarian legal view, which was in favor of this result, and the distinction Kennedy drew from it, while adopting it in general, that was unique.

    http://www.volokh.com/2013/06/26/federalism-marries-liberty-in-the-doma-decision/

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    • Mark:

      I don’t understand this claim from the Volokh article.

      But the logic of today’s opinion implicitly turns on the absence of any articulated federal interest in disregarding state laws defining marriage.

      It seems to me that to whatever extent the federal government has a legitimate interest in granting a federal right, privilege, or obligation to heterosexual couples that have taken marriage vows and hence are characterized as “married” (and given the number of unchallenged federal laws that have granted such rights/privileges/obligations throughout our history, such an interest seems well accepted), that interest does not disappear simply because certain states have decided to allow other types of couples to get married, and the federal government has an obvious interest in disregarding a state’s idiosyncratic re-definition in order to maintain the integrity and intent of its original interest in granting the right/privilege/obligation.

      Let’s take a simple example. Income tax laws have for a long time allowed heterosexual married couples to file joint federal tax returns. Of course, federal law does not refer to “heterosexual married couples” because until very recently such a phrase would have been entirely redundant and unnecessary. But let us suppose that it did. In such a case, a state’s re-definition of “marriage” to include homosexual couples would have no impact at all on this federal law, its intent to grant this privilege only to heterosexual married couples would remain in effect, and Volokh’s argument would be totally irrelevant to the fed’s ability to continue granting this privilege only to heterosexual married couples. The only thing that bring’s Volokh’s argument into play is the failure of the fed to anticipate and plan for the fact that a state might unilaterally change its definition of marriage.

      So Volokh apparently thinks that the federal government’s use of a word in articulating an interest in granting a privilege locks the fed’s into granting that privilege based on whatever definition a state might eventually, someday in the distant future, come up with for that word. It cannot clarify that, oh, BTW, when we said “marriage” what we meant was marriage as it is traditionally understood when we granted the privilege, not as a bunch of Californians have decided they would like it to mean many years after the fact. That strikes me as pretty odd and indefensible.

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  14. jnc, are they really enacting social policy by preserving the rights of married gay couples recognized in other jurisdictions? I always thought DOMA was indefensible. He doesn’t mention the rights of legally married gay couples because he seems so busy arguing that the defenders of equal rights have trampled the rights of those who have made a moral judgment against it. Is he denying they’ve made a moral judgment against it? It doesn’t sound like it to me.

    I’m not going to pretend to understand the legal ramifications of the courts slow march to equal rights for gay couples going back many years and other court cases which opened that door (much to his obvious chagrin)………………..but I will celebrate with the couples I know that they’re one step closer to equal rights.

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    • lms:

      jnc, are they really enacting social policy by preserving the rights of married gay couples recognized in other jurisdictions?

      The rights that have now been created (definitely not “preserved”…they have never existed in the history of the nation) are not recognized in other jurisdictions, because they are rights as they pertain to federal laws, not state laws. That said, yes, they are undeniably engaging in enacting social policy.

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  15. Scott, while you were writing that I was in the process of changing preserving to recognizing but now I can’t because you’ve already quoted my mistake. I take it though that you see no reason for the federal government to recognize marriage laws from the states.

    The states may be enacting social policy but I don’t see how the Fed is via the SC in this decision. It just makes sense to me that married gay couples receive the same Federal benefits as married straight couples once their marriage has been recorded by the state. I don’t really see why there was a question about it.

    DOMA was signed by a President who just suffered a defeat in DADT and was backed into a corner. If he had vetoed the bill his re-election could have been derailed. Sad but true. I don’t think anyone realized at the time how quickly gay rights would sweep the nation but it was definitely too early in Clinton’s time.

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  16. Lulu, if I read you right you understand 2/3 of the winning view. You understand the Federalist/libertarian view. From the link I posted, the federalist scholars argued as an amicus that:

    (a) Congress had no enumerated power to regulate or “defend” marriage by imposing its definition on the states, and

    (b) DOMA was not necessary and proper for carrying into execution any of its enumerated powers.

    This seems to me to be what you wrote, about recognizing marriages lawful in other jurisdictions. There are no federal marriages, per se. Marriage is not in the Constitution. It is thus one of the states’ prerogatives, absent a violation of some other area of the Constitution.

    What Kennedy did with his due process argument – the third leg of his opinion – was novel. But it was clearly done to lay down a marker that the equal protection clause does not apply to SSM the way it does to mixed race marriage. If he left it at the libertarian two legged argument he probably would have got more votes. But Kennedy was trying to shut the door on future equal protection arguments. The dissent probably misunderstood that, but took it as an opening for a future court to force each state in a future opinion to recognize SSM as a due process requirement.

    I hope that was not too much legalese.


    The link I cited now has an interesting update. The Federalist lawyers, who are libertarian conservatives, made a similar “no enumerated power” + “not necessary and proper” argument in Raich, the case where Scalia said the Feds could criminalize MJ in states where it is legal. They lost on Commerce Clause grounds, which don’t exist for marriage. From the update:

    Should we now renew our Due Process Clause challenge relying on Windsor? Perhaps, and this deserves serious thought. One way Windsor could be distinguished from Raich, however, is by the “federal interest” in regulating the interstate commerce in recreational marijuana, for which it is necessary to reach intrastate medical marijuana. There was no such federal interest in altering over 1000 laws of a variety of types, as DOMA did. On the other hand, the “necessity” of reaching state authorized medical marijuana as a means of regulating the interstate commerce in marijuana was justified by majority (and by Justice Scalia) in Raich on deferential rational basis grounds. Could Windsor justify heightened scrutiny because the state identified a liberty interest?

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    • Mark:

      (a) Congress had no enumerated power to regulate or “defend” marriage by imposing its definition on the states,

      I don’t understand how clarification of what a federal law means by a word can be said to be “imposing” that definition on the states. Federal income tax laws do not “impose” anything on the states. So if the fed clarifies that for the purposes of federal income tax laws, “married couple” means heterosexual couples, how can that be said to be an “imposition” on the state’s prerogative to define marriage for its own purposes?

      (b) DOMA was not necessary and proper for carrying into execution any of its enumerated powers.

      If the government has the power to impose an income tax on citizens, and if it also has the power to allow certain people to file those income taxes jointly, then it is obviously necessary and proper for the federal government to be able to define which people can and cannot file jointly. That is precisely what DOMA did.

      I would find an argument that the government has no enumerated power to grant special income tax filing privileges to certain people and not others to be a compelling argument. But if that power is accepted as legitimate, and it plainly is, then I don’t see how anyone can say that the ability to define how to determine who those people are is not “necessary and proper”.

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  17. I haven’t read your link Mark but I will once I get dinner out of the way. I’ve just been talking off the top of my head today, not usually that great of an idea. If I understood 2/3 of the winning view that’s an improvement for me………..hah

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  18. Mark, I really liked his conclusion here.

    For now, federalism wins out in theory as well as in practice. States are free to define marriage as they wish (subject to Equal Protection and Due Process clause restraints), and the fight over “gay marriage” will continue in the states for years, as other litigation winds its way back to the Court. So far, this process of federalism has been beneficial to the cause of same-sex marriage in a number of respects, not least of which is the perceived legitimacy of same-sex marriage in states where it has been adopted by legislation or popular initiative. But whether this bodes good or ill for same-sex marriage, it is a visible demonstration that federalism need not be just for conservatives.

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  19. Mark, a question on the standing issue in the prop 9 case:

    If there was no standing on the appeal, how was there standing in the original trial case? I.e. who was representing the state there? Should the appeals court have appointed someone to defend the proposition?

    This seems to me to be a very bad precedent where the state government can in effect nullify a duly enacted proposition through creative litigation on standing.

    The contrast between this decision and the glossing over of the standing issues with DOMA strikes me as pure process manipulation to allow the court to only rule on what it wanted to and be able to dodge the rest.

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    • jnc:

      This seems to me to be a very bad precedent where the state government can in effect nullify a duly enacted proposition through creative litigation on standing.

      I’ve been thinking about your point here. I am instinctively inclined to agree with you that this is a bad precedent. But doesn’t this really depend upon whether or not access to direct democracy is fundamentally guaranteed by the constitution? I am not sure it is. Our government structure was deliberately created to be a representative democracy, and in such a system the ultimate power of the electorate comes with its ability to elect or un-elect representatives, not to directly pass laws that its representatives must implement.

      Is the constitutional right to direct democratic law-passing and implementation something that SCOTUS has ever addressed?

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      • BTW…I also think all of the analysis about whether the logic of the DOMA decision must inevitably and inexorably lead the Supremes to eventually force same-sex marriage on all the states is to a very large degree nothing more than an academic exercise. What has become clear over the course of the last 25 to 50 years is that the rulings of the Supremes, especially on politically contentious topics, depends far, far more on who is sitting on the Court than on what the law actually says. If there are 5 Supreme Court justices who find it politically preferable that all states be forced to recognize same-sex marriage, then they will contrive an “interpretation” of the constitution that will do so. It really doesn’t matter at all what the constitution actually says, or what precedents exist.

        In short, I think it has become clear that the Supreme Court no longer is (if it ever was) a place where justices engage in a good faith effort to determine what the constitition/law actually says and means. It is just another political branch distinguished primarily by the absence of any accountability to the electorate.

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      • Interesting comment on the Prop 8 standing issue from Wesley Smith at NR.

        The “standing” aspect of the Proposition 8 case doesn’t just impact the fate of passed state initiatives. I don’t see why the executive branch at all levels of government–including the federal–can’t now simply refuse to defend any law created at any time for any reason in the face of a constitutional (perhaps brought by political allies) or other legal challenge. This is a really consequential thing.

        What should have happened in the Proposition 8 case was for Gov. Brown or AG Harris to recuse themselves and appoint a representative for the state in defending its constitution. They could even have filed amicus briefs as individuals opposing Prop 8. But the law, voted by the people, should have been defended by someone or some entity, and the courts should have recognized the standing. In fact, in a sense that is what happened. The California Supreme Court explicitly approved of the organization defending Prop 8 after the 9th Circuit Court of Appeals referred the case to it to resolve that very issue. This state imprimatur was disregarded by the Supremes.

        We are fast becoming a country governed by the rule of men and women, not by law. As I wrote here last February, allowing state officials to veto laws–not just bills–strikes at the heart of liberty We are far less free today because we are no longer a society that sees principle as paramount. All that matters, particularly on the left, is gaining the desired result in the issue at hand.

        Whatever the merits of the rest of what he says, I think his last 2 sentences hit the mark pretty squarely.

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  20. “What Kennedy did with his due process argument – the third leg of his opinion – was novel. But it was clearly done to lay down a marker that the equal protection clause does not apply to SSM the way it does to mixed race marriage. ”

    In light of Lawrence, I agree with Scalia that Kennedy and the majority along with Roberts in dissent are just being dishonest here.

    Everyone knows that it’s going to come back and be litigated on equal protection and most likely end up overturning all the state laws.

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  21. lms:

    I take it though that you see no reason for the federal government to recognize marriage laws from the states.

    I see no constitutional reason to think any reference to “marriage” in a federal law must be construed to mean whatever any given state says it means.

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  22. Scott, clearly you imply that the federal government has the general authority to define marriage. I cannot understand why you think this. I do not believe that you can explain why the federal government has the authority to broadly define marriage under either our Constitution or under your own world view.

    I think you could adopt a construct that would support federalizing marriage. I don’t think you could do that and be true to yourself.

    FWIW, I do think that prior cases that have called the right to marry “fundamental” a dozen different times, coupled with Kennedy’s “due process” liberty argument lead to the inference that the Court is halfway down the road to forcing states to recognize SSM. Kennedy’s formula puts it further down the road than an equal protection argument would have, and could logically actually keep it from ever happening. Logically, but not politically.

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    • Mark:

      Scott, clearly you imply that the federal government has the general authority to define marriage.

      I think the federal government has the general authority to define any terms used in federal statutes for the purposes of those statutes.

      So, again, if the federal government wants to allow heterosexual couples who have taken marriage vows together to file a joint federal tax return, it has the authority to use whatever term it wants to identify such couples and also to clarify what the term means within federal legislation.

      Let us suppose that the federal government passes legislation saying that the maximum speed allowable on any federal highway is 65 miles per hour. Subsequently Nevada then passes state legislation officially redefining a “mile” to mean 10,560 feet within Nevada. Would the fact that there is no enumerated power in the constitution granting the federal government the power define what a “mile” is mean that the government is disallowed from clarifying what it meant by a “mile” when it wrote the original legislation, and that it must now allow a maximum speed limit of 130 MPH on all federal highways? And would you seriously claim that to argue that the Feds do have the constitutional authority to clarify what it intended when it originally used the term “mile” is to assert a “general authority to define what a mile is”?

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  23. JNC, at trial, no D need show up. That results in a default judgment, if P makes a prima facie case. Standing only becomes an issue when someone tries to appeal the trial J.

    I meant what you wrote about equal protection when I wrote that Kennedy’s formulation could logically keep that issue from being raised successfully, but politically, someday it will be.

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  24. Scott:

    Subsequently Nevada then passes state legislation officially redefining a “mile” to mean 10,560 feet within Nevada.

    Once again, you try to base an argument on a premise which has no basis in reality. Nevada deciding to redefine a mile to 10,560 feet is as ridiculous as Texas deciding to define fetal viability at 20 weeks, or the House of Representatives deciding that fetuses can feel pain at 20 weeks. You have the right to your opinion, but not to your own facts.

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  25. Or, better, to use purely physical measurements that are absent of any emotional overlay, Nevada deciding to redefine a mile as 10,560 feet is as nonsensical as it redefining the speed of light as 300,000,000 m/sec (because that would make the math much easier, you see) or a lightyear as 9.5 x 10E15 (for the same reason). It just can’t be done, and trying to make a constitutional issue out of it is silly.

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  26. Scott, if the SCOTUS found that the group defending the law had no standing then they should have appointed a defense.

    The contrast between the Prop 9 decision and their indulgence of another party defending DOMA after the Obama administration refused to defend it is telling.

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    • jnc:

      The contrast between the Prop 9 decision and their indulgence of another party defending DOMA after the Obama administration refused to defend it is telling.

      I agree with that. In terms of Scalia’s dissent everyone seems to be talking about how he addressed the arguments of the majority and especially his stinging rebuke of the court in his conclusion. But I thought the main part of his dissent was that the case should never have been heard by the Court in the first place.

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      • I hadn’t read Alito’s dissenting opinion yesterday in the DOMA case, but he makes precisely the same point I was making to Mark yesterday regarding the claim that the federal government has no authority to define marriage.

        Section 3 does not prevent any State from recognizing same-sex marriage or from extending to same-sex couples any right, privilege, benefit, or obligation stemming from state law. All that §3 does is to define a class of persons to whom federal law extends certain special benefits and upon whom federal law imposes certain special burdens. In these provisions, Congress used marital status as a way of defining this class—in part, I assume, because it viewed marriage as a valuable institution to be fostered and in part because it viewed married couples as comprising a unique type of economic unit that merits special regulatory treatment. Assuming that Congress has the power under the Constitution to enact the laws affected by §3, Congress has the power to define the category of persons to whom those laws apply.

        This seems really obvious to me, and I remain perplexed by the claim that the government has no authority to define the category of persons to whom its laws will apply.

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        • Ed Whelan has some interesting observations on DOMA, including this:

          Kennedy complains that DOMA “creat[es] two contradictory regimes within the same State” and thus “forces same-sex couples to live as married for the purpose of state law and unmarried for the purpose of federal law.” But it’s equally clear (as this Washington Post article discusses) that the federal regime that the Obama administration is going to try to impose will create “two contradictory regimes within the same State.” Take, for example, Adam and Steve, who “marry” in New York but reside (or later move to) Virginia. The Obama administration will treat them as married for all or many purposes of federal law, even as Virginia treats them as unmarried.

          Of course, Kennedy’s objection isn’t to the existence of “two contradictory regimes” per se, but to the failure of federal law to treat as marriages those relationships that a state “has found it proper to acknowledge and protect” as marriages. In other words, there is a one-way ratchet built into his approach. By striking down DOMA’s section 3, the Court isn’t requiring the federal government to defer to state definitions of marriage generally. It is requiring the federal government to defer only to state definitions that allow same-sex marriage. For those states that don’t allow same-sex marriage, the federal government will be free to create a contradictory federal regime.

          Kennedy’s objection seems transparently disingenuous to me.

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    • JNC, the Court has permitted Congress to offer a defense of a statute before. And federal standing is different than state standing so the Court correctly stated it has not allowed a state’s position to be represented by a private party in the past. These may seem inconsistent to you but they are not in any way novel inconsistencies that are “telling”.

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  27. I got a 42 on the libertarian test

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