Many commentators on United States v. Windsor have offered the view that the decision was not far-reaching, that it didn't enshrine same-sex marriage as a constitutional right and that therefore the struggle continues.
Don't believe it for a minute. The contest is over. Windsor is a stealth Roe. It showed that five justices regard the arguments in behalf of traditional marriage to be nothing more than bigotry. It also revealed that those five will not be constrained by law or tradition from imposing their views on the nation at the next opportunity.
Chief Justice Roberts attempted to limit the damage, observing in dissent that 1) he believed that the court lacked jurisdiction, and 2) that the majority's rationale, based (loosely) as it was on federalism principles would cut the other way when state laws upholding traditional marriage are challenged. Roberts admonished that the court's majority opinion did not resolve the question of state definitions of marriage and should not be interpreted as such.
Scalia went after the jurisdictional question with his customary laser. So "hungry" were the five members of the majority to pontificate about the merits of same-sex marriage, he wrote, that they blithely skipped over "a technicality of little interest to anyone except the people of We the People" -- namely that there was no case or controversy for the high court to resolve in Windsor. The "United States" of the case's title agreed with the result at the appeals court and district court levels, which were both in Windsor's favor. The plaintiff had long since been made whole. "So what," Scalia asked, "are we doing here?"
The majority was showboating its enlightenment, that's what. As Justice Alito observed, there is no constitutional resolution to the same-sex marriage debate. Unlike other liberties found by the Court to inhere in the Due Process clause, it cannot conceivably be described as a "fundamental right deeply rooted in this nation's history and tradition." It belongs, accordingly, with the people and their elected representatives.
After Being Voted Down By The Senate, Cop Killer Advocate Officially Withdraws Obama's Nomination for DOJ Post | Katie Pavlich