WorldWatcher
Gold Member
Didn't say they were any less the law. The 14th doesn't say "A subset of persons identified in other statutory law...", it says "All persons".
Not realy. Romer was a case about State law enacted (via referendum) to remove Due Process from a class of persons. DOMA was a Federal law. Romer had no bearing on Windsor.
No it didn't. It affirmed that if States say "Yes" to Same-sex Civil Marriage then it is unconstitutional for the Federal government to say know with the intent to discriminate against homosexuals. It did not address whether it was constitutional for the States to say "No". That will be a different case.
This is the same opinion expressed by the Chief Justice of the United States Supreme Court in his writings on the Windsor decision:
"But while I disagree with the result to which the majoritys analysis
leads it in this case, I think it more important to point out that its
analysis leads no further. The Court does not have before it, and
the logic of its opinion does not decide, the distinct question whether
the States, in the exercise of their historic and essential authority
to define the marital relation, ante, at 18, may continue to utilize
the traditional definition of marriage."
leads it in this case, I think it more important to point out that its
analysis leads no further. The Court does not have before it, and
the logic of its opinion does not decide, the distinct question whether
the States, in the exercise of their historic and essential authority
to define the marital relation, ante, at 18, may continue to utilize
the traditional definition of marriage."
Within, to quote the decision, the confines of "Constitutional guarantees". If marriage was totally within the purview of the States, then the Loving decision would have been ruled in favor of the States that barred interracial marriage.
But the ruling was against the States.
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Unlike some, I don't claim to know how the SCOTUS will rule once they decide to take a case. DOMA wasn't the case and they punted on the Prop 8 case even after submitting the question on "standing" to the California Supreme Court and then ignoring their response (i.e. proponents did have standing).
Personally I don't think the court wants to take a SSCM case yet, they want it to peculate for a few more years so that more states can reverse their decade old actions on Marriage Equality. Quite a few gains were made in 2012 and 2013 and it looks like there will be two more states with SSCM on the ballot in 2014 (possibly Indiana & Ohio).
We can pretty much guess that Breyer, Sotomayor, Kegan, and Ginsburg would vote to support Marriage Equality. Roberts, Alito, Scalia, and Thomas would vote against. That leave, as is often the case, Kennedy as the swing vote. He was the Justice that wrote the Lawrence decision (Sodomy laws are unconstitutional), the Romer decision (States can remove equal protections from homosexuals overturning the Bowers decision), and he wrote the Windsor decision stating "The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and injure those whom the State, by its marriage laws, sought to protect in personhood and dignity. By seeking to displace this protection and treating those persons as living in marriages less respected than others, the federal statute is in violation of the Fifth Amendment."
If the case comes before the court under the current structure, there is cause to believe that Marriage Equality will be upheld.
Personally, I'd have wished supporters of SSCM to have held off for a few more years before pushing the challenge through the courts. The people of Maine did it the right way, IMHO, they changed the hearts and mind of the people and reversed the law at the ballot box. If that had also been done with California the strategic victory would have been much greater then the tactical victory of winning in the courts.
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