I never claimed to have my own formula. Have you forgotten that courts have cited the 14th Amendment of the Constitution and the United States vs Windsor case in rulings that gay marriage bans are unconstitutional? ...
1. I know that in Windsor a state's right to define marriage for itself was called its "unquestioned authority" in many different ways, many different times. In fact it was this precise premise that the Court used to justify striking out part of DOMA.
2. I know that in Windsor, "Loving v Virginia" was cited not THAT it applied but IF it applied. De facto at the end of Windsor the Court stated matter-of-factly "gay marriage is only allowed in some states as of this writing". If Loving applied in the Court's mind, it would have simply said "Loving applies". It hasn't been tested yet in other words. But a state's right was. And it won. Evidence by Edie Windsor getting her money.
3. Yet in the interim, somehow, we have federal judges saying "no, states didn't win". So in effect they are saying all of DOMA still applies, only retooled to mean the fed can impose upon a state a type of marriage its majority does not want.
4. So SCOTUS' silence on the obvious misinterpretation by lower court judges in the interim, as appeals pend, is damaging and undermining their own Decision.
5. It is fostering an illegal "marry-in" in violation of states' laws it just said it upheld in Windsor....with the fed holding a club over states' heads by denying them stays in the interim as
the side yet to prove their case [gays] appeals. The state's rights to define marriage for themselves to this question was Affirmed in Windsor. The question is the gay marriage one, not the state's-right one. So stays are MUST in the interim.
6. Yet the stays are not there. This is the fascism part of what SCOTUS is doing by remaining silent. It knows full well the erosion of law and its own Windsor 2013 Decision that is happening as it sits on its hands, looking the other way and whistling a tune..denying protection for a right it has just tested and granted [state's rights to define marriage re: Windsor] vs a question it has NOT tested and knows will be before its bench ["gay marriage" as a "federal right"].
Any AG of any state could make this 6-point argument in a very public way and win. It is a conspiracy IMHO to strip states' majorities of a right they just had affirmed by SCOTUS, with SCOTUS itself helpling. It may be that AFTER testing at the SCOTUS level, gay marriage [outside and apart from other deviant sexualities being granted same] may win a special federal protection. But they haven't yet. Whereas states have been granted the right to say "yes" or "no" to gay marriage ALREADY...in the interim. So their laws apply in the interim. PERIOD.