This is obviously a hugely controversial topic, so I will limit my musings to the actual opinion and dissents of the case and their logical qualities in regard to the law and especially constitutional law. My opinion is that the dissents in this case are much more convincing than the opinion, mainly because they point out how disconnected and imprecise the majority opinion is. Even I, having read only a semester and a half's worth of cases in various law courses (which translates to a few hundred opinions, which is very, very few in comparison to seasoned attorneys), found that the majority opinion was rather wishy-washy. It was more of a philosophical opinion waxing eloquent on what society should accept rather than addressing a specific issue of law, which is what any and every opinion is supposed to do. Furthermore, there's a doctrine in constitutional law called the political question doctrine. Basically, political questions (the definition of which is a whole other topic in and of itself) are reserved for the legislature (Congress), and the judiciary (the courts) will refuse to step in to address them. To me, even though Windsor is coming in as an Equal Protection Clause issue, the issue of whether same-sex marriage should be recognized by the federal government still seems like a political question that should be determined by Congress, which:
- Is what the dissent basically said (I'm pretty sure) when it said that this is something that should have been left to the people (aka representatives of the people aka Congress) and should have been left outside the realm of the judiciary (which is the political question doctrine); and
- Is actually what did happen because Congress passed DOMA. Except now it's struck down.
So anyway. The law is by no means immutable, and I'm sure that there will be future cases that limit, expand, or distinguish this one.
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