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his point -- and he obviously thinks it's a real winner because he fights across several overlapping questions to get it out -- is that Windsor definitively settled the "new fundament right / existing fundamental right" question in the anti-marriage camp's favor.
he pulls a throw-away line from Windsor intended to provide historical context on past prejudices and pretends it's an authoritative finding that the "fundamental right to marry" only applies to heteros.
The limitation of lawful marriage to heterosexual couples, which for centuries had been deemed both necessary and fundamental, came to beseen in New York and certain other States as an unjust exclusion.
this part of the opinion is just laying out the history for background. now i need to go back and see how exactly Bursch is trying to employ this. right off i see he's changed "had been" (past tense) to "has always been" (past and present).
MR. BURSCH: [...] in Windsor, this Court said that the limitation of marriage to opposite sex couples has always been thought to be fundamental.
JUSTICE BREYER: [...] I'm surprised if this Court actually wrote that, but but if it did write that and you can immediately call that page to mind, I'll doubly look at it. And I just doubt it's here, but I'll look at it.
MR. BURSCH: Yeah. You will find in Windsor that the Court majority said it's the limitation of marriage to opposite sex couples that has always been thought fundamental.
Bursch used nearly identical language both times he made this assertion about Windsor, so he clearly had careful planned what he was going to say here. how accurate and honest is his claim?
"And [Roberts] emphasized that he had looked up all the definitions he could find, and it was always a man and a woman"
very odd - as if governments take their definitions of civil marriage from dicitonaries and not the other way around.
when Plato wrote "approvingly of homosexual relations" in Symposium he was talking about relationships between male soldiers at war, not long term domestic unions between gay or lesbian partners.