|Bigots unhappy, as GOP goes dark|
A reader notes that there was no affirmatively declared right to marry in Justice Kennedy's United States. v. Windsor opinion, just an equal protection affirmation that an animus towards a class of Americans is not permissible.
True, and Justice Kennedy has earned the appellation of what Justice William O. Doulgas (1939–75) used to deride as "spaghetti spine."
Kennedy's opinion should have been much more broad, and sweeping.
But the foundation for a final federal Constitutional challenge has been laid.
The current discriminatory marriage regimes in the states are "too incoherent to survive" in the wake of Windsor, as Rachel Meadow opined on MSNBC.
David Weigel notes Antonin Scalia's dissent in Windsor —just 24 hours after invalidating the crown jewel of civil rights legislation, the democratically adopted Voting Rights Act in Shelby County v. Holder, et al—in which Scalia writes without irony, "We have no power to decide this case. [Windsor] And even if we did, we have no power under the Constitution to invalidate this democratically adopted legislation. The Court’s errors on both points spring forth from the same diseased root: an exalted conception of the role of this institution in America."
Don't look for coherency or consistency from Scalia; he remains little more than an ideological troll.
But Kennedy would embarrass himself to rule in the future that states can utilize a political animus towards gays, and that this is permissible under the equal protection clause of the 14th amendment.