I have a question for someone with a more informed legal opinion than I have. How does the Supreme Court craft a decision in Obergefell v. Hodges that doesn’t reverse United States v. Windsor so isn’t that something they have to do?
I have a question for someone with a more informed legal opinion than I have. How does the Supreme Court craft a decision in Obergefell v. Hodges that doesn’t reverse United States v. Windsor so isn’t that something they have to do?
I don’t think that they have to worry about overturning Windsor. That case dealt with the Constitutionality of the Defense of Marriage Act and didn’t specifically touch on the 14th Amendment issues raised in Obergegell.
What are you seeing that requires them to consider Windsor?
Perhaps my layman’s reading is wrong. My understanding was that in Windsor they found Windsor unconstitutional because defining marriage was a state prerogative. If in O v. H they find that the states can’t define marriage for due process reasons, doesn’t that reverse Windsor?
Since Windsor was written by Justice Kennedy, only Justice Kennedy knows what he meant and is bound by his logic. This rule only applies to Justice Kennedy, and he too is relieved from obligation to understand his prior opinions.
I just wrote a post about time-shifting. Maybe I should write one about time inconsistency.
Windsor was in large part a Federalism decision, but there is also a lot in there about the issue of unequal treatment based on sexual orientation. I’d have to go back and read the opinion to be sure, but from what I recall I don’t think that a ruling Obergefell that bans on same-sex marriage violate the Equal Protection Clause would necessarily conflict with the holding in Windsor.
It’s also worth noting that Justice Kennedy’s Windsor decision has served as the basis for nearly all of the opinions striking down state law bans issued at the District Court and Circuit Court of Appeals basis.
That’s why I ask the question.
That’s why I ask the question.
I believe that’s why your question is irrelevant, though. The judges are going to decide whatever they FEEL like deciding, and will come up with a line of reasoning based on their feelings later. If it turns out that it doesn’t work later, no problem, they’ll get a do over later.
Seriously, what the Hell does the reasoning matter when it’s all just shadows projected on clouds of emanations and penumbras?