Con-law is often a lot easier than you think.
Justice Alito begins his comments on the section of his U.S. v. Windsor dissent that deals with the “merits” of the case (as opposed to the operational “cases and controversies” dispute about it) as follows:
Same-sex marriage presents a highly emotional and important question of public policy—but not a difficult question of constitutional law. The Constitution does not guarantee the right to enter into a same-sex marriage. Indeed, no provision of the Constitution speaks to the issue.
Period.
When all is said and done, the advocates for the Supreme Court making it so that there is a right have no answer to that. Whether they eventually win or not, they never will.
It just isn’t in there.
The States’ sovereign prerogative to define marriage is in there, however, and Justice Kennedy and the rest of the majority in U.S. v. Windsor agree that it is. Now, they combine 1) a sort of federalist defense of this with 2) an insistence that DOMA’s classification (of who is regarded as married for federal law purposes) serves to deprive the persons who marry the same-sex in one of the states that now allow them to of a “fundamental right,” and that 3) it fails one of the proper tests for meeting the demands of the equal protection clause. Alito sorts out how all three of these arguments fail, as I will detail in a follow-up post, but I particularly like the way he jumps off of the first one:
To the extent that the Court takes the position that the question of same-sex marriage should be resolved primarily at the state level, I wholeheartedly agree. I hope that the Court will ultimately permit the people of each State to decide this question for themselves. Unless the Court is willing to allow this to occur, the whiffs of federalism in today’s opinion of the Court will soon be scattered to the wind.
A nice laying down of the law there for Kennedy: all your federalism talk in this case will be revealed to be patent falsehood if you dare to mandate the legalization of SSM for all 50.
The Constitution, folks. For better or for worse, it is what it is.
