… The fact that Windsor and Perry leave a two-tiered legal regime in place for most gay couples begs an even bigger question: why didn’t the Court simply establish marriage equality as the law of the land? The five justices making up the Court’s majority in Windsor clearly empathize with gay people and attest that gays and lesbians are entitled to Constitutional protection. But when given not just one, but two chances to vastly improve the circumstances of gay couples in states that could take decades to extend marriage rights on their own, why did they punt?
The most likely explanation is that the justices who support marriage equality are haunted by the aftermath of decisions like Roe v. Wade, which struck down abortion laws in 46 states when it was decided in 1973. [cont.]
Patrick Egan (NYU), The Monkey Cage