By Tom Watts
In light of the Virginia gay marriage decision last week, Bostic v. Rainey, it seems appropriate to revisit the constitutional status of gay marriage. The courts have moved rapidly on this issue, and a summary from even a year ago would do little justice to the current situation.
As Slate has pointed out, gay rights have done well in the courts since the Windsor case. Windsor was not easy to construe at the time, because, as Professor Joslin noted shortly after the case, “the opinion in Windsor does not neatly fit into any previously established analytical scheme.” The dissents disagreed over the significance of the majority’s opinion. Justice Scalia felt that it was clear that the reasoning in the decision (which he also described as “legalistic argle-bargle”) was tantamount to declaring unconstitutional all state gay marriage bans, though he encouraged lower courts to distinguish the decision as best they could. Chief Justice Roberts, on the other hand, believed that the majority’s “analysis leads no further.”