Chief Justice John Roberts wrote the opinion for the court. Justice Samuel Alito dissented.

“What Westboro said, in the whole context of how and where it chose to say it, is entitled to ‘special protection’ under the First Amendment,” Roberts wrote, “and that protection cannot be overcome by a jury finding that the picketing was outrageous.”

Matthew Snyder died in Iraq in 2006 and his body was returned to the United States for burial. Members of the Westboro Baptist Church, who have picketed military funerals for several years, decided to protest outside the Westminster, Md., church where Snyder’s funeral was to be held.

The Rev. Fred Phelps and other family members who make up most of the Westboro Baptist Church have picketed many military funerals in their quest to draw attention to their incendiary view that U.S. deaths in Afghanistan and Iraq are God’s punishment for the nation’s tolerance of homosexuality.

They showed up with their usual signs, including “Thank God for dead soldiers,” “You’re Going to Hell,” “God Hates the USA/Thank God for 9/11,” and one that combined the U.S. Marine Corps motto, Semper Fi, with a slur against gay men.

The church members drew counter-demonstrators, as well as media coverage and a heavy police presence to maintain order. The result was a spectacle that led to altering the route of the funeral procession.

Several weeks later, Albert Snyder was surfing the Internet for tributes to his son from other soldiers and strangers when he came upon a poem on the church’s website that attacked Matthew’s parents for the way they brought up their son.

Soon after, Albert Snyder filed a lawsuit accusing the Phelpses of intentionally inflicting emotional distress. He won $11 million at trial, later reduced by a judge to $5 million.

The federal appeals court in Richmond, Va., threw out the verdict and said the Constitution shielded the church members from liability.

Forty-eight states, 42 U.S. senators and veterans groups sided with Snyder, asking the court to shield funerals from the Phelps family’s “psychological terrorism.”

While distancing themselves from the church’s message, media organizations, including The Associated Press, urged the court to side with the Phelps family because of concerns that a victory for Snyder could erode speech rights.

We spoke with Jonathan Turley, a George Washington University law professor and noted scholar of constitutional law, to find out what this says about Obama and what this means for the future of gay marriage.

What should we make of this decision — and the timing of it?

The decision of the administration to make this change is a bit belated. Many of us had criticized the Obama administration for defending the DADT policy, for example, despite the general view that it is discriminatory. That same criticism has been levied against DOMA.

Holder (in his announcement) struggles mightily to explain the sudden shift, and he’s not entirely persuasive. He cites the fact that the situation has changed in the last two years, and he cites for example two district courts’ rulings against the act. The constitutionality of DOMA presents a threshold question that this administration could have answered in the first month of taking office. It’s not very persuasive to say that the administration has suddenly concluded that DOMA is unconstitutional. The more obvious explanation is that it didn’t feel it could politically oppose DOMA before the midterm elections. I found Holder’s statement to be rather forced and unconvincing.

Having said that, this is still going to be welcome news for everyone who supports same-sex marriage. And it will create a rather curious lineup as these cases go forward.

Holder said that DOJ will not defend the constitutionality of DOMA in the two pending cases but will “remain party to the cases and continue to represent the interests of the United States throughout the litigation.” So does that mean they’re still going to defend it?

The United States in the past has remained party to cases where it opposes the original side of the government. There’s a case from the Supreme Court, for example, where the Justice Department effectively switched sides and supported the petitioner’s claim. So the assumption is that the administration will remain a party in the case, and will state its view that Section 3 of DOMA is unconstitutional.

What’s interesting is Holder’s statement that the department will work closely with the courts to ensure that Congress has a fair and full opportunity to participate in pending litigation. That would seem to mean that the Justice Department will support a special counsel to defend these laws in support of Congress. That will create a situation where you have one lawyer representing the legislative branch and arguing in favor of constitutionality, and another lawyer representing the executive branch and arguing against constitutionality.

I should note, though, that if this were to go to the Supreme Court, I do not expect that the position of the administration would necessarily sway any justices. The justices are likely to have very clear views on the constitutionality of this question. Justice Scalia recently talked publicly about the limits of the Equal Protection Clause. But it certainly adds more support to the challenges going forward. It never hurts to have the executive branch on your side.

One more interesting thing is that the Justice Department has always maintained its belief in the unitary executive theory, and it’s always maintained that the government needs to speak with one voice; in this case the government will speak with two voices.

Is there precedent for that?

There is. They have done this, and Holder makes reference to the fact that it’s been done in the past. Ultimately the president and the attorney general have the discretion whether to defend a law. And when they decline to do so, the expectation is that Congress will be able to supply council to defend the legislation. But I think a lot of people are asking today why this analysis wasn’t equally compelling in the first year of the administration.

So is it likely the administration will revisit this position soon, or can this decision remain the policy for a while?

If the Supreme Court were to uphold DOMA, I suspect the Justice Department would likely reexamine this decision. However, that may be difficult because Holder is stating clearly here that he believes this law cannot be defended on constitutional grounds. They can certainly use a Supreme Court decision to justify reevaluation of this decision. It would remain, however, a highly conflicted position for the administration — for while the majority of the Supreme Court may find this constitutional, the attorney general of the United States has just stated that the administration views it as unconstitutional. So the question is if the Supreme Court had found Plessy v. Ferguson constitutional, would the administration still be arguing in favor of separate but equal policies? So it creates a very difficult decision for the administration to make.

Now, just because the Supreme Court declares something constitutional, doesn’t necessarily change the equation for the administration. The administration could still decline to defend the law, and leave those cases to special counsel. But my assumption is that if the Supreme Court argued the legality of DOMA then there’d be many in the Justice Department who’d argue that they should resume defending the law in lower courts.

What do you make of the politics of making this announcement now?

These cases are coming up for appellate decision. So the cases themselves force this issue. The assumption is that the administration was waiting until after the midterm elections to take this position. Everyone that I’ve spoken to believes this decision was motivated by political considerations and not legal considerations. Eric Holder has proven an extremely political attorney general, much in the same way as the Bush attorneys general. His position not to prosecute torture, his decision to defend DOMA, and his prior decisions on DOMA were all driven by political considerations in the view of his critics. So I think that’s what the motivation is.

A smart person could write a good column about the trajectory of the gay rights movement, the long journey from Gay Liberation to NOH8, the story of how America deals with radical movements by eventually allowing formerly marginal minorities to join mainstream society. But Jonah Goldberg is not a smart person and this is not a good column.

The column encapsulates Goldberg’s pathetic conservatism: It’s a philosophy defined entirely by opposition to whatever those stupid liberals want. There’s no principle beyond the adolescent desire to be contrary.

Two decades ago, the gay Left wanted to smash the bourgeois prisons of monogamy, capitalistic enterprise, and patriotic values and bask in the warm sun of bohemian “free love” and avant-garde values. In this, they were simply picking up the torch from the straight Left of the 1960s and 1970s, who had sought to throw off the sexual hang-ups of their parents’ generation along with their gray flannel suits.

As a sexual-lifestyle experiment, they failed pretty miserably, the greatest proof being that the affluent and educated children (and grandchildren) of the baby boomers have re-embraced the bourgeois notion of marriage as an essential part of a successful life. Sadly, it’s the lower-middle class that increasingly sees marriage as an out-of-reach luxury. The irony is that such bourgeois values — monogamy, hard work, etc. — are the best guarantors of success and happiness.

Any sources or citations for quote for any of this? (Monogamy is the best guarantor of success! QED!) No. But don’t worry, he has a really good example coming up:

The gay experiment with open bohemianism was arguably shorter. Of course, AIDS played an obvious and tragic role in focusing attention on the downside of promiscuity. But even so, the sweeping embrace of bourgeois lifestyles by the gay community has been stunning.

Nowhere is this more evident — and perhaps exaggerated — than in popular culture. Watch ABC’s Modern Family.

Yep. “Gay people are all bourgeois now, I learned it on a TeeVee show I watch. Liberals stink!”

No but seriously:

The sitcom is supposed to be “subversive” [no it isn't] in part because it features a gay couple with an adopted daughter from Asia. And you can see why both liberal proponents and conservative opponents of gay marriage see it that way. But imagine you hate the institution of marriage [only cartoon caricatures of radical leftists go around consciously "hating the institution of marriage" but OK] and then watch Modern Family’s hardworking bourgeois gay couple through those eyes [but if I hate the institution of marriage why the hell am I watching "Modern Family"?]. What’s being subverted? Traditional marriage, or some bohemian identity-politics fantasy of homosexuality? [Can a "bohemian identity-politics fantasy" be "subverted"...? Does anyone read these things before they're published?]

Goldberg goes on to note that Republicans love family but Democrats love murder, according to science:

By the way, according to a recent study, Modern Family is the No. 1 sitcom among Republicans (and the third show overall behind Glenn Beck and The Amazing Race) but not even in the top 15 among Democrats, who prefer darker shows like Showtime’s Dexter, about a serial killer trying to balance work and family between murders.

That study seemed like nonsense (conclusion: self-proclaimed conservatives like high-rated popular television shows slightly more than self-identified liberals do, and liberals also like less highly rated shows) but its methodology has nothing to with its relevance to Goldberg’s point, which is none.

And we end on this note:

Personally, I have always felt that gay marriage was an inevitability, for good or ill (most likely both). I do not think that the arguments against gay marriage are all grounded in bigotry, and I find some of the arguments persuasive. But I also find it cruel and absurd to tell gays that living the free-love lifestyle is abominable while at the same time telling them that their committed relationships are illegitimate too.

Jonah goes on to explain what he means when he says gay marriage will be both good and bad, and he elaborates on which arguments from gay marriage opponents he finds so “persuasive,” despite his obvious sympathy for the cause of gay marriage. Oh, wait, no he doesn’t. He doesn’t do any of that, he just ends the column with a dumb attempt to coin the term “HoBo.”

So I’m guessing that he doesn’t actually have any reason at all to think that gay marriage will be bad for anyone, but he has to pretend that he does, because otherwise K-Lo will cry, or something. Who knows.

I thought this would be the dumbest thing I read at the National Review Online today, until I read this, which notes that Mexico has only one gun store and comes to the conclusion “Less Gun Stores, More Crime”; and this, another episode of the on-going series “Andrew McCarthy proves that liberals love Islamofascists” (tonight’s smoking gun: a New York Times profile of a Lebanese newspaper editor); and this astounding single paragraph from someone named Charlotte Hays that insists that snow will make people conservative, because it proves that government doesn’t work. (Did the private sector plow Park Slope yet…?) Ms. Hays wrote a similar piece the last time it snowed, about how snow proves that the government doesn’t work because the USPS website didn’t announce that post offices would be closed. (“A murmur of approval greeted my suggestion that he call his boss and urge USPS to post information about delivery on their website, as any normal, unsubsidized business would have done by now.” Tell that to every New York restaurant on SeamlessWeb, lady.)

No one quite knows what to make of it. “What broken system?” HuffPost Hill semi-sarcastically asked. (Those who are predisposed to particularly dumb narratives decided that this sudden Senate action means that President Obama’s having a “comeback.”)

So was all that bellyaching about a terribly broken Senate just liberals whining about not always getting their way? If all that “unprecedented” obstruction evaporated overnight was it ever that big a deal to begin with? Or is this sudden flurry of activity just a distraction from the fact that the Senate is still not up to the task of solving any of America’s major problems?

Yes. To the last one.

First of all: All of these things should’ve been taken care of before the election. As Dave Weigel said, “twenty years ago, things like the food safety bill, which passed on a 75-23 vote, would not have been punted to the lame duck.” There was no good reason — beyond Democratic infighting and incompetence — to delay the tax cut vote. (It might’ve been politically useful to hold a vote on the 9/11 first responders healthcare bill before the election too, come to think of it.) But nothing that passed was particularly controversial (not even “don’t ask, don’t tell”) so all of it could’ve been taken care of long before a last-ditch lame duck. Before the days when every routine bit of legislation required 60 votes to even be considered, this entire lame duck docket could’ve been taken care of on some random week of the regular legislative session, with time enough left to confirm a few dozen uncontroversial presidential nominees.

Even this successful-looking lame duck demonstrated how difficult it’s become to do the simplest things in the world’s most deliberative body. The Senate had to pass the food safety bill multiple times, because of procedural screw-ups. The 9/11 bill shrunk — after it “failed” a vote by receiving more than 50 but fewer than 60 votes — because one cranky senator threatened to single-handedly delay another vote until after Christmas.

The Senate just gave up on slightly difficult but necessary things, like the DREAM Act and the appropriations bill. The failure of the omnibus spending bill will have major repercussions. It means that the government can’t actually act on the wonderful progressive things the Senate passed earlier this year, like healthcare reform and financial regulation. If Dodd-Frank can’t be implemented, does it even matter? And the Democrats failed to even come close to passing a budget while they still controlled both houses.

Sure, the Senate approved 19 judges. 19 out of 38 pending nominations. One confirmed judge had been awaiting confirmation since January. And as part of the “deal” between Democrats and Republicans, Democrats won’t even seek votes on four other pending judges. (This is the point where liberal bloggers all reminisce about the days of “straight up-or-down votes.”) After two years, Obama has managed get 60 judges confirmed, which is an absurdly low number, especially for a president whose party “controls” the Senate.

Meanwhile, we’ve got no climate bill, no immigration reform, no budget, and no hope of improving, rather than dismantling, the healthcare reform law. This was the dying breath of a sick Congress. The next one should be even worse.