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US and China Announce Historic Agreement on Climate Change

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goddamnedfrank11/12/2014 3:36:05 pm PST

It’s also worth mentioning that the State bans against SSM are on a much weaker legal footing than the federal DOMA law was, because the 14th Amendment doesn’t actually apply to the federal government at all. One of the reasons that Windsor v. US was a 5-4 decision was that it rested on 5th Amendment grounds, wherein “equal protection” was inferred into the due process clause via Bolling v. Sharpe.

Conservatives of course don’t really like this, because the 5th Amendment doesn’t actually explicitly say a damned thing about equal protection of the laws. Retconning this kind of meaning, no matter how much sense it makes in the modern world, is the kind of “judicial activism” they hate.

However the Equal Protection Clause in 14AS1 is totally explicit, it’s right there unambiguously in the text itself. It clearly mentions “any person,” and very specifically applies to the individual States. The fact that the Court went about the whole thing rather backwards, making the objectively greater stretch of okaying federal ssm rights before making the legally much easier case of applying them to the States is kind of a weird quirk, and will end up being an historical footnote.