Boy, when it rains it pours. Within the span of one week, the Ninth Circuit denies rehearing en banc in the Prop 8 case. The First Circuit, per Judge Boudin (one of Bush 41’s most respected appointments) finds that DOMA is unconstitutional. A few days later, the SDNY declared DOMA unconstitutional. What is with this torrent of change?

Let’s break down the time line.

• Bowers v. Hardwick came down in 1986.
• Romer v. Evans came down on May 20, 1996.
• Four months later (I didn’t realize it was this close till i googled it) DOMA was enacted, after limited debate, and signed into law by a Democratic President and supported by a Bipartisan Congress.
• Lawrence v. Texas came down in 2003.
• Prop 8 was voted into law November 2008.
• The Iowa Supreme Court in April 2009 recognized a right to same sex marriage in the state constitution. The Justices were severely criticized, and several were removed after the next election.

I don’t think you can overstate the importance of the Holder Memo. It changed the politics, as for the first time, a major political party got behind the gay-rights movement. Don’t forget, Bill Clinton signed DOMA!

I draw many parallels with the litigation over the Affordable Care Act–though on a much more accelerated pace. Once the major GOP establishment got behind the ACA challenge, a cascade began. Federal district court judges accepted the argument and started to strike down the law. With this cascade, it was on a collision course with the Supreme Court.

I’ll explore this a bit more in my book.