In spite of Windsor’s numerous flaws, there is a thin silver lining. Although Justice Scalia is right to complain about the tortured logic in Justice Kennedy’s opinion, federalism remained an important foundation of Justice Kennedy’s rationale. As Chief Justice Roberts explained:
“The dominant theme of the majority opinion is that the Federal Government’s intrusion into an area “central to state domestic relations law applicable to its residents and citizens” is sufficiently “unusual” to set off alarm bells. Ante, at 17, 20. I think the majority goes off course, as I have said, but it is undeniable that its judgment is based on federalism.”
This means a liberal majority of the Court embraced what appears to be (albeit flawed) federalism principles in Windsor, and refused to nationalize a right to gay marriage in both cases. For now at least, the battle over marriage can still be resolved by the democratic processes in the 50 states, and Windor’s deference to states’ rights may still extend to states that define marriage as between a man and a woman.
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