“If you really follow the logic of the Windsor decision, there’s no way the Supreme Court could force the states now to adopt same-sex marriage, because the whole premise of the Windsor opinion was deference to state authority over marriage,” Gene Schaerr said at a discussion at the Family Research Council in Washington, D.C.
“So it would be a monumental act of judicial hypocrisy now to turn Windsor around and to say, ‘Well that means now that the states have to recognize same-sex marriage,’” Schaerr said. “There’s just no way that that decision would be consistent with the underlying logic of Windsor.”
In the 77-page United States v. Windsor 2013 decision, the court held, in part:
“By history and tradition the definition and regulation of marriage has been treated as being within the authority and realm of the separate States. Congress has enacted discrete statutes to regulate the meaning of marriage in order to further federal policy, but DOMA, with a directive applicable to over 1,000 federal statutes and the whole realm of federal regulations, has a far greater reach. Its operation is also directed to a class of persons that the laws of New York, and of 11 other States, have sought to protect. Assessing the validity of that intervention requires discussing the historical and traditional extent of state power and authority over marriage.”
According to the Supreme Court’s preview of the Obergefell v. Hodges case, which it will hear on Tuesday, the justices will be considering two questions: Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex, and does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out of state?