That's your personal opinion. I've found the judiciary's reasoning to be both consistent and logical.
.
Justices shouldn't pander to ass-kissers. But you've got a point. They probably do.
But your point on the Judiciary being consistent and logical neglects to point out that most of the lower courts quite obviously have not read Windsor 2103.
On the contrary- the lower courts have repeatedly referred to Windsor- and repeatedly cite Windsor- and
From the Wisconsin decision:
To the extent Romer and Lawrence left any room for doubt whether the claims in this
case raise a substantial federal question, that doubt was resolved in
United States v.
Windsor, 133 S. Ct. 2675 (2013), in which the Court invalidated the Defense of Marriage
Act, a law prohibiting federal recognition of same-sex marriages authorized under state law.
Before the case reached the Supreme Court, the Court of Appeals for the Second Circuit had
discussed at length the continuing vitality of Baker and the majority had concluded over a
vigorous dissent that Baker was no longer controlling.
Compare Windsor v. United States,
699 F.3d 169, 178-79 (2d Cir. 2012) (“Even if Baker might have had resonance for
Windsor's case in 1971, it does not today.”), with id. at 210 (Straub, J., dissenting)
(“Subjecting the federal definition of marriage to heightened scrutiny would defy or, at least,
call into question the continued validity of Baker, which we are not empowered to do.”). On
appeal before the Supreme Court, those defending the law continued to press the issue,
arguing that the lower court’s rejection of Baker as precedent made “the case for this Court's
review . . . overwhelming.”
Windsor v. United States of America, Nos. 12-63 and 12-307,
Supplemental Brief for Respondent Bipartisan Legal Advisory Group of the U.S. House of
Representatives, available at 2012 WL 5388782, at *5-6.
In addition the Court addressed your argument- referring to Windsor
Windsor is closer to the mark, but not by much. It is true that the Supreme Court
noted multiple times in its decision that the regulation of marriage is a traditional concern
of the states. Windsor, 133 S. Ct. at 2689-90 (“By history and tradition the definition and
regulation of marriage, as will be discussed in more detail, has been treated as being within
the authority and realm of the separate States.”); id. at 2691 (“[R]egulation of domestic
relations is an area that has long been regarded as a virtually exclusive province of the
States.”) (internal quotations omitted). In addition, the Court noted that the Defense of
Marriage Act departed from that tradition by refusing to defer to the states’ determination
of what qualified as a valid marriage. Id. at 2692 (“DOMA, because of its reach and extent,
departs from this history and tradition of reliance on state law to define marriage.”).
However, defendants’ and amici’s reliance on Windsor is misplaced for three reasons.
First, the Supreme Court’s observations were not new; the Court has recognized for many
years that the regulation of marriage is primarily a concern for the states. In his dissent,
Justice Scalia noted this point and questioned the purpose of the Court’s federalism
discussion. Id. at 2705 (Scalia, J., dissenting) (“But no one questions the power of the States
to define marriage (with the concomitant conferral of dignity and status), so what is the
point of devoting seven pages to describing how long and well established that power is?”).
Thus, it would be inappropriate to infer that the Court was articulating a new, heightened
level of deference to marriage regulation by the states
Second, the Court declined expressly to rely on federalism as a basis for its conclusion
that DOMA is unconstitutional. Windsor, 133 S. Ct. at 2692 (“
t is unnecessary to decide
whether this federal intrusion on state power is a violation of the Constitution because it
disrupts the federal balance.”). See also id. at 2705 (Scalia, J., dissenting) (“[T]he opinion
has formally disclaimed reliance upon principles of federalism.”). But see id. at 2697
(Roberts, C.J., dissenting) (“t is undeniable that its judgment is based on federalism.”).
Third, and most important, the Court discussed DOMA’s encroachment on state
authority as evidence that the law was unconstitutional, not as a reason to preserve a law that
otherwise would be invalid. In fact, the Court was careful to point out multiple times the
well-established principle that an interest in federalism cannot trump constitutional rights.
